The New Jersey Police Chief Magazine | June 2022
identifying a reasonable potential for disruption .” The closer the employee ’ s speech reflects on matters of public concern , the greater must be the employer ’ s showing that the speech is likely to be disruptive before it may be punished .
In order to ensure that there is an effective disciplinary process , the following elements must exist :
( 1 ) |
Rules must be clear and unambiguous |
( 2 ) |
Policies must not be overly broad or vague |
( 3 ) |
Enforcement of policies and regulations must be consistent |
Applying these concepts to statements made in the workplace or on social media is not an easy task . The first threshold issue is whether the speech is protected constitutionally . Then it must be determined whether the speech touches upon “ a matter of public concern .” If the speech contributed to an adverse employment action , the Court must then “ reach the most appropriate possible balance of the competing interests .” Id . The balance must be made between the rights of the employee ’ s free speech interests with the Government ’ s interests in the effective and efficient fulfillment of its responsibilities to the public . The U . S . Supreme Court has held that the second step in the public employee free speech balancing test is only utilized “ when the employee speaks as a citizen upon matters of public concern , rather than as an employee upon matters of personal interest .” Therefore , the Courts must determine whether an employee who uses social media is truly expressing a matter of public concern when they do so , or rather , if they are “ distorting matters of concern into a “ vehicle ” to complain about work .” Accordingly , public employees may be held responsible by their employers for what they say online if what they say does not fall into a “ matter of public concern ”. If what a public employee says online can qualify as a “ matter of public concern ” the Government employer ’ s interests may be so great that it can overcome the constitutional interests of the employee .
The type of employee may also matter in determining whether discipline is appropriate . The public employee may have more or less restraints on his or her free speech protections depending on the type of position in which they serve . Clearly , police officers are held to a higher standard than are other public employees . This also extends to expressions of speech . As to any public employee , however , various types of speech are unprotected under any circumstances which would include workplace harassment , racial epithets , and threats by co-workers such as fighting words and slander .
In conclusion , the Courts have upheld the right of employers in many circumstances to curb public employee ’ s off-duty , non-work related speech . Whether an employee ’ s speech addresses a matter of public concern must be determined by the “ content , form , and context of a given statement , as revealed by the whole record .” Connick vs . Myers , supra . To fall within the realm of “ public concern ” an employee ’ s speech must satisfy two ( 2 ) criteria . It must relate to a matter of political , social , or other concern to the community , and the employee must speak “ as a citizen upon matters of public concern ” not simply “ as an employee upon matters only of personal interest .” As the Court said in Pappas , “ context as well as content matters .”
1 In Pickering vs . Board of Education , 391 U . S . 563 ( 1968 ) the U . S . Supreme Court decided that public employees do not relinquish their right to free speech .
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