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FMG Law Blog Line

Our Employee Said What Online? Public Entities and Employee Speech in the Digital Age

Posted on: September 22nd, 2016

By: Paul H. Derrick

Unlike their private-sector counterparts, employees of municipalities, counties, and other public entities have work-related free speech rights that enjoy varying levels of First Amendment protection.  Supreme Court law is clear on that broad point, although its contours are sometimes anything but clear.  In the 21st-century world of social media and other online forums, figuring out what is protected and what is not can be downright confounding.

Some public entities have simply thrown up their hands and lamented that there is nothing they can do when workers post damaging or embarrassing comments online.  Even taking First Amendment protections into account, however, all may not be lost.

The Supreme Court’s basic test for deciding when public employees’ speech is protected is seemingly straightforward.  When the speech is pursuant to an employee’s official duties, it is not constitutionally protected and the employee can be disciplined for saying the “wrong” thing.  When a public employee speaks in his/her capacity as a citizen on a matter of public concern, however, the speech generally is protected and cannot lead to discipline unless the public employer can show an overriding interest for taking such action.

Predictably, the various appellate courts around the country have not seen eye-to-eye on what that broad guidance means.  A number of them, however, use a three-part analysis.  The threshold inquiry is whether the public employee was speaking as a citizen on a matter of public concern or as an employee about something of merely personal interest.  Second, courts examine whether the employee’s interest in speaking outweighs the government’s interest in managing and maintaining an orderly work environment.  Just because speech involves a matter of public concern does not automatically give it absolute constitutional protection.  Finally, courts look for evidence that the employee’s speech was a substantial factor in the employer’s decision to terminate employment or otherwise punish the employee.

With the online and social media world now becoming almost ubiquitous, there are growing numbers of cases in which courts rely essentially on this same analysis in the context of adverse employment action taken because of an employee’s online speech.  In Duke v. Hamil (*WL 414222 (N.D.Ga. 2014)), for example, a police force demoted one of its officers for posting on his personal Facebook page an image of the Confederate flag, along with the phrase, “It’s time for the second revolution.”  The officer claimed that the posting was directed at “Washington politicians” and had nothing to do with his employer.  Although the officer quickly removed the image, another Facebook user submitted a screenshot of it to a local television station.  After the department began receiving complaints, the officer was demoted for publicly espousing his political views.

In considering the officer’s subsequent lawsuit, the court determined that the speech clearly was regarding a matter of public concern.  Nonetheless, three factors led it to rule in the department’s favor and dismiss the lawsuit.  First, the officer was a high-ranking official in the department; therefore, his posting had the potential to cause significant disruption both within the department and among the public.

Second, his personal Facebook page disseminated the message widely and publicly.  The officer’s speech received broad attention and implicated the public’s trust in law enforcement.  His actions reflected on the department’s reputation significantly and the posting appeared to advocate revolution, which could undermine confidence in the department because the officer was supposed to uphold law and order.

Third, while the speech was arguably political, its message could just as easily be interpreted as divisive, prejudicial and offensive, lacking substantive content that was important to the public’s interest in free speech.  Under the circumstances, the chief of police did not have to wait to see what happened as a result of the controversy before taking action to abate it.

Likewise, in Graziosi v. City of Greenville (5th Cir., No. 13-60900 (Jan. 9, 2015)), a police sergeant posted a series of scathing comments against her chief on Facebook after he refused to send a representative to the funeral of a police officer from another city killed in the line of duty.  Among other comments, she said that “[t]his is totally unacceptable” and asked the mayor “can we please get a leader that understands that a department sends officers of (sic) the funeral of an officer killed in the line of duty?”  Later, Graziosi posted an additional comment that stated “If you don’t want to lead, can you just get the hell out of the way.”  Shortly thereafter, she was fired for violating the department’s rules of conduct.

The district court, later affirmed by the Fifth Circuit, dismissed the case, concluding that Graziosi did not speak on a matter of public concern and that, even if she did, the department’s interest outweighed her interest in speaking.  Even though the employee invoked the issue of public spending—whether the department failed to send a representative because of the cost—the employee’s primary complaint was that she was personally offended by what she perceived as a slight to a fallen officer.  The posts amounted to nothing more than an internal grievance because they constituted a “rant” attacking the police chief and culminating “with the demand that he ‘get the hell out of the way.’”  Thus, the speech was not entitled to First Amendment protection. The court also found that Graziosi’s minimal interest in speaking on matters of public concern was outweighed by the city’s substantial interest in maintaining discipline and close working relationships and preventing insubordination within the department.

These cases and others like them demonstrate that public employers do have at least a foothold in their efforts to take action against inappropriate postings by their employees.  Disruptive online speech can be the basis for disciplinary action when public employers are able to show that their interests in maintaining the public’s trust, an orderly workplace, and/or any number of other legitimate goals outweigh any First Amendment interest that an employee might otherwise have.

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