the first aMenDMent anD eMpLoYee sociaL MeDia use labor & Employment law Section Chairs : Amanda Biondolino - Sass Law Firm & Jason Pill - Phelps Dunbar LLP
often , employees believe their social media posts are protected first amendment speech .
People increasingly flock
to their social media accounts to make their opinions on a variety of political issues known . For employers , this increased activism by employees sometimes results in workplace conflict — especially where employees ’ social media posts were impassioned , or arguably over the line . But can employers restrict social media posts employees make on their own time ?
Often , employees believe their social media posts are protected First Amendment speech . Whereas employees of private employers are not protected by the First Amendment , employees of public employers do have protection . In certain circumstances , however , even government employers may limit the speech their employees make outside the workplace .
For an employee ’ s speech to be protected , he must speak as a private citizen on a matter of public concern . If this threshold is met , courts then employ a balancing test to determine if the employer ’ s interest in promoting efficiency of its public service outweighs the employee ’ s interest in speaking . Courts generally give the government a high degree of deference when an employee ’ s
speech interferes with working relationships that are essential to the fulfillment of public responsibilities . However , the tone of the employee ’ s speech is not a determinative . “[ D ] ebate on public issues should be uninhibited , robust , and wide-open , and ... may well include vehement , caustic , and sometimes unpleasantly sharp attacks on government and public officials .” 1
In Rankin v . McPherson , a deputy constable made threatening statements about President Ronald Reagan shortly after he was shot . Although her speech was inflammatory , the Court held that it was protected . In employing the balancing test , the Court considered the employee ’ s role . Although her title was “ deputy constable ,” her activities were clerical in nature , with little public interaction . Because her comment did not interfere with the operation of the employer , her speech was protected .
While the Rankin decision did not involve social media , it is often cited and instructive . Recently , the Sixth Circuit considered a case wherein an emergency dispatcher used racially charged language while posting about the 2016 presidential election . Citing Rankin , the Court held that her speech was
protected , even though it was crude . However , because it impaired the harmony necessary for co-workers to perform their duties , her termination did not violate the First Amendment . 2
Several claims where social media use is the central question are currently in the early stages of litigation . For example , this past summer , a Massachusetts detective was fired after posting in favor of Black Lives Matter , purportedly because the employer perceived it disruptive to the proper functioning of the police department . A Michigan teacher has alleged that he was suspended because he tweeted pro-Trump messages . The school denies the claim . Given the prevalence of social media in today ’ s culture , and the current political landscape , more cases will likely follow .
These and other similar socialmedia First Amendment cases will be interesting to watch . n
1
Rankin v . McPherson , 483 U . S . 378 ( 1987 ). 2
Bennett v . Metro . Gov ’ t of Nashville & Davidson Cty ., Tennessee , 977 F . 3d 530 ( 6th Cir . 2020 ).
Author : Amanda L . Biondolino – Sass Law Firm
joIn tHe lABoR & eMploYMent SeCtIon At HIllSBAR . CoM .
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