Social Media Screening of Homeland Security Job Applicants and the Implications on Free Speech Rights

Denis Sweeney

EXECUTIVE SUMMARY

Homeland security employers (e.g., police departments, fire departments, and federal agencies) that engage in social media screening (SMS) of their job applicants should be aware of the risk of infringing on the applicants’ free-speech rights and take steps to mitigate that risk. The law on free-speech protections for homeland security job applicants is not established though the need for it is becoming increasingly important, as social media provides an expansive and permanently documented platform for examining individual speech. Without clear jurisprudence, homeland security employers may inadvertently pressure applicants to self-restrict their speech.
Increasingly, homeland security background investigations include applicants’ social media history, whereby employers look for inflammatory statements or behavior indicating the potential for future misbehavior. As of 2016, Career Builder reported that 60 percent of employers engage in SMS, and the International Association of Chiefs of Police reported that 58 percent of police departments use SMS. Homeland security employers, particularly, must screen unfit applicants due to the sensitive nature of their operations and the public-facing nature of their employees. However, homeland security employers should also consider the possible costs of SMS, including infringing on the free-speech rights of job applicants.
The infringement of the free-speech rights of homeland security job applicants is not a theoretical problem and has practical implications for homeland security employers. First, homeland security employers should serve as leaders in protecting all rights including free speech. Many homeland security employers recognize this responsibility. For example, the Federal Bureau of Investigation’s mission statement includes the obligation to “protect civil rights” and its core value of “rigorous obedience to the Constitution of the United States.” If homeland security employers disregard the risk that SMS diminishes civil rights, they are hampering their mission while attempting to achieve it.
Second, SMS can hinder recruitment and diversification efforts by homeland security employers. Police departments are already facing a recruitment challenge, as documented in RAND’s 2010 report Police Recruitment and Retention for the New Millennium, which documents the inflow and outflow dynamics that challenge departments in fully staffing their ranks. In the context of this recruiting challenge, SMS of applicants may dissuade some individuals from applying for homeland security jobs. For example, the local media in Cleveland reports, “Many blacks cite stigma and cop culture [and] avoid police recruiters.” If candidates have posted to a Black Lives Matter group or “liked” such a group on Facebook, they may doubt their ability to be hired by a police agency. Homeland security employers should take this possibility seriously and work to protect applicants’ free-speech rights to encourage recruitment efforts.
To evaluate whether SMS harms the free-speech rights of homeland security job applicants, this thesis considers two research questions: When homeland security employers screen the social media of job applicants, what are the free-speech rights of those applicants, and do publicly available social-media screening policies of homeland security employers support or undermine applicants’ free-speech rights?
To answer these research questions, this thesis proceeds in five steps. First, it provides background on the constitutional right to free speech, with a focus on the rights of government employees. The First Amendment provides for the right to speak freely without government interference. Case law affirms that private citizens have the broadest protections for speech. However, courts have approved limitations on public employees, whose speech is protected only when the employee speaks “as a private citizen” about “a matter of public concern,” and the speaker’s interest in exercising their right to free speech is greater than the interest of the public employer in effective operations. Courts have continued to use this jurisprudence in the internet age, applying it to disputes around Facebook likes and social media policies.
Second, this thesis presents a content analysis of existing case law to confirm there is no established precedent for the free-speech rights of government job applicants. In content analysis, the researcher analyzes a body of human communications for patterns to answer a research question. Here, the LexisNexis database—which includes over 180 million federal and state court cases—served as the body of communications. After sorting for those cases most likely to establish a rule on the free-speech rights of government job applicants, 192 cases were reviewed. The vast majority of those cases were unrelated to free-speech rights of job applicants. The few that were related were distinguishable and did not specifically establish the free-speech rights of public job applicants.
Third, this thesis evaluates legal arguments and concludes that applicants should enjoy the full First Amendment protections of private citizens and not be subject to the limitations placed on public employees. Analysis of existing jurisprudence for incumbent public employees to homeland security job applicants indicates applicants should be treated as private citizens. Analogous case law on free speech—such as precedents on loyalty oaths and unconstitutional conditions of employment—indicates that homeland security job applicants would suffer various forms of government pressure to self-restrict their speech. Furthermore, counter-arguments in favor of restricting the speech of applicants—such as a rule that fear of having one’s speech restricted is insufficient to create standing to sue—can be distinguished as not addressing the specific concerns of homeland security job applicants.
Fourth, this thesis evaluates social science arguments and concludes that ethical, economic, and sociological theories support protecting homeland security job applicants’ free-speech rights. Ethical arguments for SMS are countered by homeland security employers’ responsibility to serve as role models and to consider the efficiency of SMS in a larger context. Economic theories indicate SMS is unjustified because of the lack of an opportunity for applicants to develop a contractual employer–applicant relationship and the factors in a cost–benefit formula argue against regulating applicant speech. Sociological research indicates that applicants may alter their social media profiles to fulfill perceived employer desires and that homeland security employers risk groupthink by unconsciously selecting applicants whose social-media profiles match their views.
Fifth, this thesis analyzes two publicly available policy documents related to the SMS of homeland security job applicants: the Washington, D.C., Metropolitan Police Department’s social media policy for applicants and the International Association of Chiefs of Police’s guidance on how to appropriately engage in SMS. Both documents take some steps toward protecting free-speech rights for homeland security job applicants, such as encouraging or requiring efforts to inform applicants of the SMS process and give applicants the opportunity to explain potentially problematic speech. However, many aspects of the documents increase the risks to applicant free-speech: the documents are vague as to what types of speech are unacceptable, they encourage applicants to self-restrict their speech, and they seek to perpetuate the existing law enforcement culture.
Given this background and analysis, this thesis outlines steps homeland security employers should take to protect the rights of their job applicants, possible future research, and potential legal action. Homeland security employers can take affirmative steps such as providing clear notice about SMS and providing examples of disqualifying speech. Also, homeland security employers can take preventative steps—such as carefully wording their recruitment materials—to avoid implying SMS will serve as enforcement of a speech code and resisting the temptation to evaluate applicant social media activity as if it were the activity of incumbent employees. Future research could explore the social construct of social media. For example, as social media continue to proliferate, do people view it as becoming more serious and due more protections or less serious and due fewer protections? Future legal action—possibly sponsored by a free-speech rights advocacy group such as the American Civil Liberties Union—could provide the opportunity for judicial resolution of the question of the level of speech protections to which applicants are entitled.
Homeland security employers must recruit the best talent to fulfill their missions, and social media screening provides additional and unique information when engaging in background investigations. However, unlike traditional background investigation techniques, social media screening includes the possibility that homeland security employers will infringe on the free-speech rights of their applicants. Homeland security employers should recognize these rights, acknowledge the risk that social media screening may affect these rights, and take steps to minimize the effects of social media screening on these rights.

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