First Amendment Rights and Employee Use of Social Media

First Amendment Rights and Employee Use of Social Media Bob Joyce UNC School of Government October 21, 2016

“Speak over those bad things positively”

“I’m back at this God forsaken place. Nothing has changed—only gotten worse. I can’t take any more of this place. But if you want good quality care, go to Marvin Hospital in Williams County, where the good folks will help ya! We get good service there and everyone is so friendly! Not anywhere near Smith, where you lay for hours and never get treated.”

Here’s the punch line: the law of public employee free speech on social media is the same as the law of public employee free speech in other contexts

Was the employee speaking as part of her job duties?

Did the speech touch on a matter of public concern?

In the balance, whose interests are more important?

The Officer, His Wife, and the Video Camera “We recognize that the Dible’s conduct was more expression (nudity and sexual activity) than speech as such. That does not change the analysis.”

The Officer, His Wife, and the Video Camera Was Officer Dible speaking as part of his job duties?

The Officer, His Wife, and the Video Camera Did the speech touch on a matter of public concern? Compare City of San Diego v. Roe, 543 U.S. 77 (2004)

The Officer, His Wife, and the Video Camera “Whatever a periplus of the outer limits of public concern might show, it is pellucid that Roe’s vulgar behavior would be discovered to be outside of those borders.” 515 F.3d at 926

The Officer, His Wife, and the Video Camera “Dible’s activities . . . did not give the public any information about the operations, mission or function of the police department.”

The Officer, His Wife, and the Video Camera But what if a balance was required? “[I]t is a bit difficult to give that activity the same weight as the right to engage in political debate or to lecture on religion and black history.”

The Officer, His Wife, and the Video Camera “Especially is that true where, as here, the employee admits that he was not interested in conveying any message whatsoever and was engaged in the indecent public activity solely for profit.”

The Officer, His Wife, and the Video Camera “It would not seem to require an astute moral philosopher or a brilliant social scientist to discern the fact that Ronald Dible’s activities, when known to the public, would be detrimental to the mission and functions of the employer.”

The Officer, His Wife, and the Video Camera Was the employee speaking as part of her job duties? Did the speech touch on a matter of public concern? In the balance, whose interests are more important?

The Officer, His Wife, and the Video Camera Was the employee speaking as part of her job duties? Did the speech touch on a matter of public concern? In the balance, whose interests are more important? Would the employee have been fired anyway?

The Officer, His Wife, and the Video Camera Dissent: When the speech is unrelated to the employee’s government work, the public-concern component is not relevant. All unrelated speech goes straight to the balance. And here the balance is in Dible’s favor.

The Officer, His Wife, and the Video Camera Dissent: But here, fourth question gets Dible: Would he have been fired anyway? Yes, for lying about his outside employment.

The Sympathetic Clerk “So this week not going so good bad stuff all around”

The Sympathetic Clerk Response: “Will be praying. Speak over those bad things positively”

The Sympathetic Clerk “I am trying my heart goes out to the ladies in my office that were told by letter they were no longer needed . . . It’s sad”

The Sympathetic Clerk Was Mattingly speaking as part of her job duties?

The Sympathetic Clerk Did the speech touch on a matter of public concern?

The Sympathetic Clerk Lots of people understood that Mattingly was referring to the new clerk’s termination decisions. Even the new clerk understood that. Several people were stirred up enough to contact the new clerk. “All of this occurred while news media were reporting on the terminations.”

The Sympathetic Clerk Balance of interests: “Because there is no evidence that Mattingly’s comments disrupted the operations of the Circuit Clerk’s office, there is nothing to place in the scales opposite Mattingly’s right to free speech.”

The Sympathetic Clerk Qualified immunity?

The Sympathetic Clerk “[The new clerk] argues that he is entitled to qualified immunity on Mattingly’s free speech claim ‘because no reasonable person would know that such an ambiguous and oblique statement on Facebook would constitute a matter of public concern.” Court: Bull.

Fred the EMS guy “I’m back at this God forsaken place. Nothing has changed—only gotten worse. I can’t take any more of this place. But if you want good quality care, go to Marvin Hospital in Williams County, where the good folks will help ya! We get good service there and everyone is so friendly! Not anywhere near Smith, where you lay for hours and never get treated.”

Fred the EMS guy Was Fred speaking as part of his job duties?

Fred the EMS guy Did the speech touch on a matter of public concern?

Fred the EMS guy Balance of interests?

Not in Your Materials When is clicking speech?

Not in Your Materials “[M]erely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” Bland v. Roberts, 2012 WL 1428198 (E.D.Va. 2012)

Not in Your Materials “Facebook posts can be considered matters of public concern.” But, “Simply liking a Facebook page is insufficient.”

ID10T

The Very White Professor “YES! Today’s Columbus Day! It’s time to acknowledge and celebrate the superiority of Western Civilization.”

The Very White Professor “The only immigration reform imperative is preservation of White majority.”

The Very White Professor College president: “[T]he openness of our [email] system . . . allows individuals to express opinions on almost any subject.” The “message is not aligned with the vision of our district.”

The Very White Professor Suit by employees for hostile work environment under Fourteenth Amendment’s equal protection clause. Defendants move for summary judgment on grounds of qualified immunity.

The Very White Professor Defendants “do not dispute that employers who become aware of workplace harassment are required to take reasonable steps to make it stop. But they claim they are entitled to summary judgment based on qualified immunity because they were required to do no more [than they did], and if they were required to do more, such a duty was not clearly established.”

The Very White Professor Plaintiffs’ “objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive.”

The Very White Professor Clash of a Fourteenth Amendment right with a First Amendment right.

The Very White Professor “Free speech has been a powerful force for the spread of equality under the law; we must not squelch that freedom because it may also be harnessed by those who promote retrograde or unattractive ways of thought.”

The Very White Professor “[R]acial insults or sexual advances directed at particular individuals in the workplace may be prohibited on the basis of their non-expressive qualities . . . “But Kehowski’s website and emails were pure speech . . . Their offensive quality was based entirely on their meaning, and not on any conduct or implicit threat of conduct that they contained.

SOG Social Media Policy Monuments in Parks: Government Speech, Not Forum Analysis Free Speech Rights in Government Social Media Sites

The Idiot CIA Employee Fourth Amendment: No “unreasonable” searches and seizures.

The Idiot CIA Employee In the workplace context, two issues: (1) Did the employee have a reasonable expectation of privacy?

First Amendment Rights and Employee Use of Social Media