Georgetown Law’s ICAP and the States United Democracy Center Release A First Amendment Guide to Aid Law Enforcement Agencies’ Efforts to Counter Bigotry and Extremism Within Their Ranks 

Published: 4.28.22

Washington, D.C. — New guidance issued by Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) and the States United Democracy Center (SUDC) provides clarity to law enforcement agencies about First Amendment questions that may arise as they work to eliminate bigotry and extremism in their ranks.

“Racism and other forms of bigotry and extremism are inherently at odds with the mission of law enforcement to build trust with the communities they serve in order to better protect everyone in those communities,” said Mary McCord, Visiting Professor of Law and Executive Director of Georgetown Law’s ICAP. “This new guidance makes clear that the First Amendment provides substantial leeway to law enforcement agencies to take disciplinary action or refuse to hire those whose extremist activity undermines the law enforcement and public safety mission.”

The guidance points to court precedent that resolves many of the thorny constitutional questions that can arise when law enforcement leaders seek to avoid the disruption and impairments caused by extremist ideologies held by officers. It explains that public employees do not have First Amendment protection for speech made as part of their official duties. Moreover, even when speaking in their personal capacities on matters of public concern, the First Amendment rights of law enforcement officers are not unfettered. Officers may be disciplined when their bigotry or extremism impedes respect and trust in the community, the perception that the agency is fair and unbiased, and morale within the force.

“Public safety depends on law enforcement leaders’ ability to foster trust and respect between officers and the communities they serve; bigotry and extremism are incompatible with these imperatives. We developed this guidance to provide law enforcement agencies with a clear roadmap to addressing bigotry and extremism within their ranks, while also protecting First Amendment rights,” said Katie Reisner, Senior Counsel at the States United Democracy Center.

Prominent current and former law enforcement leaders have applauded the guidance as useful and necessary:

“With this First Amendment guide, our colleagues at States United and ICAP have provided a valuable and timely resource to law enforcement leaders across the country. We’ve shared this document with several national law enforcement associations and we continue to hear very positive feedback on this roadmap for navigating the challenging issue of extremism,” said Kathleen O’Toole, former Commissioner and Chief of Police, Boston and Seattle; Partner at 21CP Solutions; and States United Bipartisan Advisory Board member.

“I recommend this document to any law enforcement leader, lawyer, or HR professional trying to navigate our profession’s challenging dynamics. This guidance provides a tool for law enforcement leaders at a particularly critical time to effectively counter issues like extremism, on the part of some, within our ranks. States United and ICAP have clarified that while the First Amendment and individual rights are paramount in this country, the First Amendment does not prohibit law enforcement agencies from taking disciplinary action or refusing to hire individuals who engage in extremist speech or activities that undermine their public safety mission,” said Chuck Ramsey, former Commissioner and Chief of Police, Washington, D.C. and Philadelphia; Founding Partner at 21CP Solutions; and States United Bipartisan Advisory Board member.

“This resource provides law enforcement leaders with a crucial constitutional analysis, enabling them to effectively address the challenging issue of extremism in the ranks, consistent with the protections of the First Amendment. The guide developed by States United and ICAP has helped me as a law enforcement executive and I know it will be helpful to others,” said Peter Koutoujian, Sheriff of Middlesex County, MA, Immediate Past President of Major County Sheriffs of America (MCSA), and States United Bipartisan Advisory Board member.

Questions addressed in the guidance include:

• What speech does the First Amendment protect in this context?
• Does the Constitution permit a law enforcement agency to reprimand, discipline, or fire an officer based on their bigoted or extremist speech or associations?
• Can a law enforcement agency refuse to hire an individual on these grounds?

The full guidance can be found here.

###

ICAP’s mission is to use strategic legal advocacy to defend constitutional rights and values, while working to restore people’s confidence in the integrity of their governmental institutions. Connect with ICAP at www.law.georgetown.edu/icap/, reachICAP@georgetown.edu, or @GeorgetownICAP.

The States United Democracy Center is a nonpartisan organization advancing free, fair, and secure elections. We focus on connecting state officials, law enforcement leaders, and pro-democracy partners across America with the tools and expertise they need to safeguard our democracy. For more information visit www.statesuniteddemocracy.org or follow us at @statesunited.