Government Employers Can (and Should) Have a Social-Media Policy: Part 3

Posted by Molly DiBiancaOn September 23, 2011In: Social Media in the Workplace

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Delaware's capital, the City of Dover, recently rejected a proposed social-media policy for its employees. Apparently, Dover's City Council was influenced by a letter from the ACLU of Delaware. The ACLU Delaware's Legal Director also spoke at the Council's meeting and, according the Wilmington News Journal, called the proposed rules a "clear violation" of First Amendment rights and "told the committee that public employees are not subject to any special restrictions on their speech because of the nature of their positions."

With all due respect to the ACLU's Legal Director (who I happen to know and think very highly of), I must, respectfully, disagree. In my humble opinion, the policy as proposed did not violate the First Amendment in any way--and certainly did not constitute a "clear violation" of any law. And, contrary to the Director's claim that public employees "are not subject to any special restrictions on theirs speech" by virtue of their employment with the government, although public employees do not leave their First Amendment rights at the workplace door,

it is plain that those rights are somewhat diminished in public employment.

Melzer v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., 336 F.3d 185, 192 (2d Cir. 2003).

Because social media is a "new" technology, there are only a few cases that address whether a public employee may be disciplined or terminated as a result of online conduct that occurs while the employee is off duty. But those cases "clearly" provide legal support for the adoption of Dover's proposed policy.

In Stengle v. Office of Dispute Resolution, 631 F. Supp. 2d 564 (M.D. Pa. 2009), a hearing officer employed by the State of Pennsylvania maintained a blog, the description of which stated that its intended purpose was to

share information about inclusion and the implementation of the Gaskin Settlement agreement from the perspective of a parent of a class member and to provide a means to share information with other class members.

The "Gaskin Settlement Agreement" was a very hot topic in Stengle's local community. It was also the settlement of a matter over which she was presiding in her capacity as a hearing officer. When her contract was not renewed after she declined to recuse herself from the matter. Stengle sued, alleging that the non-renewal of her contract constituted an unlawful violation of her First Amendment rights.

The district court disagreed. It first looked to whether she wrote her blog in her official capacity as a hearing officer. You'll recall from Post 2 in this series that this first step was explained by the Supreme Court in its Garcetti decision. If an employee is speaking in his or her official capacity, First Amendment protections do not apply. Here, the court concluded that the blog's explanation of its intended purpose was sufficient to show that blog was written in Stengle's capacity as a citizen, as opposed to a hearing officer.

The court skipped the second step because the defendants conceded that the blog posts discussed matters of "public concern." Speech made by an employee on matters of public concern, as you may recall, receives constitutional protection. Therefore, the court proceeded to the third step.

At this stage, the court asks whether the public employee's interest in her speech outweighs her employer's interest in promoting workplace efficiency and avoiding workplace disruption. The court noted that this analysis recognizes a pubic employer's "need to have wide discretion in running an efficient operation."

The court easily concluded that the hearing officer's blog posts did not deserve constitutional protection. The court explained that the employer need show only that the employer's speech had "some potential" to affect the workplace. The employer need not wait until the bad things actually happen because of an employee's speech before taking action. The court then reviewed the several problems that the defendant-employer had offered as ways that its operations could be disrupted, finding that these potential disruptions were sufficient to justify its decision not to renew Stengler's contract.

A blogging case decided by a court on the opposite coast reached the same result. In Richerson v. Beckon, No. 07-5590-KJA (W.D. Wash. Mar. 27, 2008), aff'd, 337 Fed. App'x 637 (9th Cir. 2009), a school-district employee's job duties were reassigned when district officials learned of her blog, where she'd written posts criticizing coworkers and others. The posts were personal attacks of the individuals she worked with and were "racist, sexist, and bordered on vulgar. " One post also disclosed confidential information acquired in the course of her employment with the school district.

The court concluded that, although the underlying topic of the posts--the operation and management of public schools--could be considered a matter of public concern, the personal attacks and stereotyping "far exceeded normal standards of decency." The nature of the posts, the court found, disqualified the posts for the protections afforded to speech on a matter of public concern. Thus, the speech was not constitutionally protected and the claim was dismissed.

On appeal, the Ninth Circuit assumed without deciding that the speech was a matter of public concern but affirmed the dismissal under the balancing test. The court found that the employee's blog posts had caused co-workers, students, and members of the community to lose faith in her as a confident and otherwise impaired her ability to secure the trust that was essential to her position. Therefore, the court concluded, the school district was reacting to actual disruptions caused by the employee to the workplace and had not acted unlawfully.

There are other cases that do not involve social media but do involve off-duty conduct and are, therefore, similarly applicable to those discussed above. I will save my discussion of those cases for another post but, for now, the two decisions addressed above demonstrate, in my opinion, that there is no "clear violation of First Amendment rights" arising from a social-media policy that merely clarifies that an employer's anti-discrimination, anti-harassment, and other, similar workplace policies, apply to employee's off-duty and/or online activity.

See the earlier posts in this series, Government Employers Can (and Should) Have a Social-Media Policy, Part 1 and Part 2.

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