In St. Louis in 2013, a three-judge appeals court panel said it was “troubled” and “concerned” that a prosecutor tweeted about a sexual assault trial in progress, noting that the use of tweets “immediately before and during trial greatly magnifies the risk that a jury will be tainted. …” The prosecutor was not punished, but the story—and her tweeting history—made national news.
This summer, an Idaho prosecutor stirred controversy for one of his Facebook comments. One of his friends posted a meme on his own Facebook page. It featured a photo of a peace officer standing in front of his patrol car with the following caption: “If we really wanted you dead all we’d have to do is stop patrolling your neighborhoods … AND WAIT.” This prosecutor commented, “Great point. Where the police are under attack from politicians, and the police become less aggressive, the murder rates go up. I say, let them have their neighborhoods. They will be like Rwanda in a matter of weeks.” The longtime gang prosecutor told reporters later that his perspective (and his post) came from trying gang-related cases in Los Angeles for 12 years. His boss, the Kootenai County Prosecutor, did not punish his deputy.
Perhaps most egregious, an assistant state attorney in Florida was suspended for a controversial post on his Facebook page. On the day of a brutal attack on an Orlando nightclub this past summer—where 49 people were killed and 53 wounded—this prosecutor wrote, “All Orlando nightclubs should be permanently closed. With or without random gunmen they are zoos; utter cesspools of debauchery.” He also called the people of Orlando and those who visit nightclubs “a melting pot of 3rd world miscreants and ghetto thugs.” It was not the first time this prosecutor had voiced his feelings on Facebook. In 2014, he wished a “Happy Mother’s day to all the crack hoes out there”—a sentiment that landed him in hot water with his boss, who gave his subordinate a stern talking-to about his office’s policy on social media.
After the Orlando nightclub post, however, the State Attorney’s Office suspended the prosecutor on suspicion of violating the office’s social media policy, and all 55 cases he had tried were reviewed for signs of bias or prejudice. (He was cleared of any bias.) The veteran prosecutor was later fired for his remarks, and—this may not surprise anyone—he tweeted his outrage over losing his job: “I just got fired for a Facebook post after 20 years as a prosecutor. The Founding Fathers would turn in their graves. God help this country!”
Whether or not these prosecutors were punished for their posts, they still made headlines—and as the old(ish) saying goes, nothing on the Internet ever dies, so these stories will live on, embedded in the online ether, into eternity. That’s (part of) why it’s wise to be careful in what we post or tweet online, especially when said posts and tweets have to do with our jobs as prosecutors.
We asked six supervising prosecutors in jurisdictions across the state about their office’s policy on social media. While a few said they don’t have a written policy, they have all at least considered one, not least because of incidents on the national stage like those above. Here’s what they each had to say about such policies.
Assistant District Attorney and General Counsel in Harris County
Our office’s current social media policy is as follows:
OPERATIONS MANUAL SECTION 2.13: The District Attorney’s Office recognizes that employees may participate in social networking sites on the internet such as MySpace, Facebook, and Twitter and may publish their own blogs. However, since any information shared online can reflect on this office, such postings should be personal and should not discuss any official business of the office or make reference to the office or an activity within the office. Any posting should not purport to describe office policy, as the administration will address office policies. You should not state your title or position in the office on any posting, as this may imply an official statement of the office. Your online conduct should mirror your conduct in the office. Remember: Nothing online is truly anonymous. Information that you post online is often permanent or, at the least, may remain present for a long period of time.
As you might note, the current policy has been around since MySpace was a thing. It was drafted with the intention of being respectful of an employee’s right to engage in free expression while drawing fair boundaries between office communications and personal communications. The tricky balance, of course, is in defining what “official business of the office” is and to what degree an employee’s free expression rights include the right to make political comments about the manner in which the office is run.
It’s sometimes tough to apply this policy narrowly, especially when the social media posts are critical of the District Attorney’s policies or when they share internal communications not intended for public dissemination. But I think elected officials have to have really thick skin when reacting to criticism from inside or outside the office on social media, particularly if it’s political speech. We have to basically keep our eye on the lines set by federal law in Pickering v. Board of Education and Connick v. Myers and avoid disciplining an employee for a social media posting unless the communication truly interferes with the office’s operations to such a degree that it outweighs the employee’s right to speak on a matter of public concern.
We remain confident that our staff will use good judgment and stay professional when communicating on social media about matters related to the criminal justice system because the alternative—using bad judgment or being unprofessional—is so obviously inappropriate and fraught with ethical peril.
County and District Attorney in Ellis County
This will probably come as a surprise, but I do not have a social media policy. Shortly after I took office, I spent a lot of time researching and contemplating the matter. I ultimately decided that as a governmental entity, there are just too many pitfalls with such a policy. It’s one thing for a private entity to impose restrictions on an employee’s speech; it’s quite another for the government to do so. Knock on wood, but there has never been a social media incident with one of my employees. A few years ago, at one of my first TDCAA talks on the subject, I recall telling the group that I decided against adopting a policy. I explained that I would deal with any situations on a case-by-case basis. So far, so good.
Assistant Criminal District Attorney in Lubbock County
We really do not have a policy regarding social media per se, but we certainly don’t want anyone affiliated with our office putting anything out there that would—or potentially could—embarrass the office. Our stance is pretty simple: We believe that as prosecutors we live in a glass house, and we are expected to live with a different, higher standard than anyone else. This is something we embrace and actively preach to our prosecutors at all levels in our office.
I’m not aware of any actual incidents with prosecutors or staff being reprimanded for something they have posted on social media. From time to time, I will remind the people I supervise of the importance of not posting something that would or could potentially embarrass our office, but it has never been in direct response to an incident.
When Kaufman County prosecutors Mark Hasse and Mike McLelland were murdered back in 2013, we did gather every single attorney in our office for a meeting. This was literally a day or two after the murders, so there still wasn’t a lot of information being released other than the speculation about the Aryan Brotherhood targeting prosecutors across the state. The purpose of the meeting was to remind everyone to be safe and to think twice about what they were posting on their social media accounts. It was stressed that it probably wasn’t very smart to post where you lived, when you would and would not be at home, when you would and would not be at work, etc. I think this was a big eye-opener for a lot of our staff.
Assistant Criminal District Attorney in Tarrant County
Our office has a written policy on social media that elected Criminal District Attorney Sharen Wilson implemented when she initially took office, and it reads as follows:
Attorneys and other employees are forbidden from posting any content that they generate or access as a result of their position with the Tarrant County Criminal District Attorney’s Office on a social media website under their personal account. This includes content that may be captured with a personal device, but which the attorney or employee has access to or received because of their employment with the Tarrant County Criminal District Attorney’s Office.
District Attorney in Brazos County
I don’t really have an office policy on social media. I have talked about it but not written it down. I have told my employees that they are responsible for what they put out there, which means if their Facebook posts harm the reputation of the office, then I will act accordingly. I have told them to think about my daughter, that if I lose this job because of their actions, I won’t be able to feed and clothe her. So I ask them, “Did you think of Erin?” That usually works, and they have policed themselves.
We have also asked them not to have alcohol in pictures when they are at office functions, such as TDCAA’s Annual or other official events. I have told them that reflects badly on our office because we are prosecuting drunk drivers.
C. Scott Brumley
County Attorney in Potter County
While admitting it may constitute negligence per se, we do not have a formal policy on use of social media, other than to inform all employees of the office that, if they make their social media presence public, we will see it (and we have investigators who monitor defendants’ social media presence; it would not be difficult for them to find out if our people are putting scurrilous stuff out there). Personally, I would be far more concerned about prosecutors disclosing confidential information on social media than finding out about them bad-mouthing the office. In any event, we haven’t really had an incident involving an employee yet.
With that said, I’m quite sure we’ll have to promulgate such a policy, and probably in the not-too-distant future. We have found some “public” social media material from applicants that did not comport with the representations they made in their applications and supporting materials (hence, they are not current employees of our office). We do let applicants who get an interview know that we will be checking their social media, and ask them to “friend” us (or whatever that mumbo-jumbo is), but we do not ask for passwords as I’ve heard some employers do. We haven’t had any backlash from employees about what we do. Since we don’t do much, I’d have trouble imagining much of a colorable complaint about it. i