Florida Bar Journal

Social Media and the Progressive Limitations on Public Sector Employees’ First Amendment Right to Free Speech

There are moments in history that mark advancements in communication from which humans will never return. Such moments include the invention of the printing press, the telegraph, the telephone, the radio, the internet, email, and social media. Times were much simpler before social media. Even in the age of email, an employee could express his or her opinions, even unsavory ones, to several people without attracting the attention or scorn of the masses and without the media proliferating the speech. Social media has proven to be a complete game changer. Employees who once failed to manifest an audience of two can watch as their post goes viral around the country and even the world. Even more worrisome is the fact that the power of a social media post is gauged by its shares and views, which are largely obtained based on the content of the post. The more outrageous the post, especially that of a government employee, the greater the likelihood of the post going viral. This has placed government employees in a precarious position as speech that may have once been considered protected under the First Amendment was considered as such because the speech was not made in a public forum and shared with only a few individuals at the most.

A common misconception among most U.S. citizens and many private-sector employees is that the First Amendment applies to all speech. Indeed, not only is the First Amendment’s free speech protection limited by requiring government action, such protection is further constricted by years of appellate and U.S. Supreme Court authority. This authority has chipped away at the definition of protected free speech in an unsurprising way by excluding speech that contains the following: true threats; fighting words; calls to illegal action; obscenity; child pornography; defamation; perjury; plagiarism; solicitation to commit a crime; and blackmail.

In the public-sector employment setting, the U.S. Supreme Court has further limited the protection afforded public-sector employees through four landmark decisions that have resulted in a four-part analysis for courts to utilize in order to determine whether a public employee’s speech is protected by the First Amendment.

In Pickering v. Board of Education, 391 U.S. 563, 568 (1968), the U.S. Supreme Court established that, when determining whether a public employee’s speech is protected by the First Amendment, courts should consider the “balance between the interest of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [s]tate, as an employer, in promoting the efficiency of the public service it performs through its employees.” Pickering, an Illinois school teacher, sent a letter to the local newspaper criticizing the board’s attempts to increase educational funding and the use of such funds that ultimately led to his termination.^[1] With respect to the foregoing balancing test, the Court found that Pickering’s complaints regarding school funding were a matter of public concern, and that the contents of Pickering’s letter, although critical of the board, could not interfere with his daily work as a teacher or the functioning of his distant relationship to the board and superintendent.^[2]

The U.S. Supreme Court’s decision in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), provides the fourth step to the four-part analysis. The Court concluded that an employee must show causation between the speech and the adverse employment action and, if the employee makes this showing, the public employer must show by a preponderance of the evidence that it would have taken the adverse employment action without consideration of the employee’s speech.^[3]

Although in Pickering the U.S. Supreme Court repeatedly emphasized the language regarding a citizen commenting on a matter of public concern, the Court did not solidify such as a requirement for First Amendment protection until Connick v. Myers, 461 U.S. 138, 143 (1983). In Connick, an assistant district attorney, upset with her impending transfer, prepared and distributed unsolicited questionnaires regarding the district attorney’s workplace environment to fellow employees, which resulted in the employee’s termination.^[4] The former employee brought forth and succeeded on her §1983 claim at the trial court level and on appeal to the Fifth Circuit, but the U.S. Supreme Court reversed the lower court’s ruling and held that an employee grievance, such as the questionnaire distributed by the former employee, does not rise to the level of public concern required for speech to become protected by the First Amendment.^[5] Indeed, the Court gave great weight to the fact that the questionnaire was the result of an inter-office squabble between the former employee and her supervisor.^[6]

In the fourth and most recent ruling, the U.S. Supreme Court determined that certain public employee speech is never protected. In Garcetti v. Cabellos, 547 U.S. 410, 421 (2006), the Court established that “when public employees make statements pursuant to their official job duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Ceballos, a deputy district attorney for the Los Angeles County District Attorney’s Office, reviewed the merits of a pending criminal case and determined that there were substantial inaccuracies in a key affidavit utilized by law enforcement to obtain a search warrant.^[7] Cabellos prepared a disposition memorandum in which he further expressed his concerns and recommended dismissal of the criminal case.^[8] Ceballos’ superiors ignored his recommendation, reassigned and transferred Ceballos, and denied his promotion.^[9] Although Ceballos responded to his employer’s actions with a §1983 claim, the U.S. Supreme Court held that Ceballos’ speech was made in the course of his job duties and was, therefore, unprotected.^[10] Notably, the Court suggested that had Ceballos objected to the affidavit and search warrant via a letter to the local newspaper instead of in the memorandum to his superiors, such speech would not have been pursuant to his employment responsibilities and may have been protected.^[11]

The foregoing decisions combine to create the following four-part analysis in determining whether an employee’s speech is protected and whether the adverse employment action was proper: 1) The employee must not engage in the speech in furtherance of his or her job duties; 2) the speech at issue must be regarding a matter of public concern; 3) an employee’s First Amendment speech right must outweigh the public employer’s interest in promoting the efficiency of the public service it performs; and 4) the employee must show causation between the speech and the adverse employment action, and, if the employee makes such a showing, the employer must then show that it would have taken the adverse action regardless of the speech.^[12]

With the evolution of social media, the focus is primarily on the balancing test between a public employee’s First Amendment speech right and a public employer’s concern for efficient operations. Rankin v. McPherson, 438 U.S. 378 (1987), is a prime example of a U.S. Supreme Court decision that reflects the tolerance of certain speech prior to social media and its public platform as well as the balancing of a public employee’s right to free speech and the employer’s concern for efficient operations. In Rankin, the constable of Harris County, Texas, terminated one of his deputy constables who held a clerical position when he learned that the deputy stated to a co-worker, “if they go for him, I hope they get him,” when she learned of the assassination attempt on President Reagan.^[13] The Court focused primarily on the balancing test in its analysis and, in finding McPherson’s speech protected, gave great weight to the fact that McPherson made her statement in private and that the constable did not consider whether her statement interfered with his operations when he terminated McPherson.^[14] Had McPherson made her statement via a social media post today, it is likely that such an inflammatory post would have sufficiently upset enough citizens for the constable to have legitimate concerns regarding the efficient operation of his office.

There are several court decisions in the public education sector that show the courts’ willingness to find that the balance is tipped in favor of the public education employer when the speech is proliferated on social media. For instance, in Richerson v. Beckon, 337 F. App’x 637, 638-39 (9th Cir. 2009), the Ninth Circuit held that a terminated teacher’s blog posts created an actual injury to the employer’s legitimate interest in efficient operations when the negative posts were made with regards to fellow teachers, supervisors, and union representatives and incited numerous teachers to refuse to work with the former teacher. The court did not focus so much on the content of the speech but on its impact. Had the speech been made in a more private setting, such as in Rankin, it would not have had the same impact on the former teacher’s co-workers. By utilizing the internet as a platform for speech, public employees risk the eternal and unforgiving nature of the internet.

Similar to the Richerson court, some courts have found that posts made in a semi-private online setting may not meet the requirements of protected speech. In Munroe v. Central Bucks School District, 805 F.3d 454, 458-61 (3d Cir. 2015), the former teacher utilized a somewhat anonymous and private blog forum to unpleasantly and profanely gripe about her students and their parents. The trial court and the Third Circuit found that the speech was not protected because, although the former teacher may not have intended for the subjects about whom she spoke to discover her blog, the school district and parents eventually discovered the blog, and the blog was not password-protected to prevent its discovery.^[15] Both courts subsequently found that the content of the blog, when made public, “was sufficiently disruptive so as to diminish any legitimate interest in its expression.”^[16]

Law enforcement employees have also experienced the impact of social media on their First Amendment speech rights. In Snipes v. Volusia County, 704 F. App’x 848 (11th Cir. 2017), the 11th Circuit found that the balancing test weighed in favor of the public employer when a former officer’s racially charged social media post regarding Trayvon Martin caused an increased potential for riots as the post occurred in close proximity to the George Zimmerman verdict and was followed by racial and vulgar text messages to fellow officers. The court weighed the time, place, and manner of the speech when determining whether the speech was protected.^[17] Not surprisingly, the fact that the former officer’s post, “Another thug gone! Pull up your pants and act respectful. Bye bye thug rip!,” was forever entered into the public domain weighed against him in the court’s analysis.^[18] The vulgar and derogatory nature of Snipes’ text messages weighed heavily against him as well.^[19]

While the Snipes case involved speech that was so vile that the text messages alone may have been sufficient for the 11th Circuit to find Snipes’ speech unprotected, courts are finding less direct speech unprotected as well when shared on social media. In Georgia, a university demoted its deputy chief of police after the deputy chief posted a confederate flag on social media accompanied by the words, “It’s time for the second revolution.”^[20] The university feared that many in the community would take offense to the deputy chief’s speech because it gave rise to concerns regarding prejudice.^[21] Additionally, the speech appeared to support revolution, which runs counter to the department’s primary purpose of maintaining law and order.^[22] The trial court upheld the demotion finding that the department’s interests in efficient operation outweighed the deputy chief’s speech rights.^[23]

While the foregoing cases involved forms of speech calling into question the law enforcement officers’ ability to perform their duties without prejudice, some speech, even though it does not appear to interfere with an officer’s performance of duties, is unprotected because it simply reflects poorly on the department as a whole. Such was the case in Dible v. City of Chandler, 515 F.3d 918 (9th Cir. 2008), where the department terminated Dible, a police officer, for operating a website featuring him and his wife engaging in explicit activities. In addition to finding that the speech was not on a matter of public concern, the Ninth Circuit held that the city’s interest in efficient operation of the police department outweighed Dible’s free speech rights.^[24] In particular, the court reasoned that police officers, as public servants, must uphold the public’s opinion of them and Dible’s actions and lack of professionalism did not garner the respect of the people.^[25] Indeed, the department encountered issues arising from Dible’s actions in both recruiting and with the public when its officers interacted with same.^[26]

In conclusion, the public platform that social media provides has significantly impacted public employees’ First Amendment speech rights. Posts on social media by public employees that are unprofessional, disrespectful, and/or vulgar are likely unprotected and carry adverse employment consequences. Especially in the modern and sensitive world in which we live, courts may find that such speech interferes with a public employer’s efficient operations and uphold adverse employment decisions even in the face of claimed First Amendment protection. For public employees wishing to express themselves on social media, it is best to follow the age-old maternal advice: If you can’t say something nice, it is best to say nothing at all.

This column is submitted on behalf of the Labor and Employment Law Section, Robyn Sue Hankins, chair, and Robert Eschenfelder, editor.