Employee's Facebook Posts Protected by First Amendment

An employee's Facebook posts critical of her employer can constitute concerted activity protected by the NLRA in the private sector. But in the public sector, when the employer is the government, those same comments made via Facebook can be protected by the First Amendment, as demonstrated by the recent case of Mattingly v. Milligan, from the Eastern District of Arkansas.

The plaintiff, Mattingly, had worked as a full-time employee in the County Clerk's office when her boss, the incumbent County Clerk, ran for re-election. She supported him in the campaign, which he lost. The campaign and election were covered by the local media.

The new County Clerk, Milligan, took office in December and immediately terminated by letter 3 of the office's 9 full-time employees. On the same day, he told the plaintiff and the remaining co-workers that they would be retained. That evening, the plaintiff lamented the terminations via Facebook updates. Some of her 1,300 Facebook friends commented on the posts. The exchange included the following posts:

Plaintiff: So this week not going so good bad stuff all around Friend: Will be praying. Speak over those bad things positively Plaintiff: 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

Milligan received 6 calls at home from constituents who were unhappy with the terminations.

The following day, Milligan called the plaintiff and told her that, in light of her Facebook posts, he did not believe that they could have a productive working relationship. She insisted that she could. Apparently, Milligan was not persuaded and terminated her by letter later that day.

The plaintiff filed suit, alleging that the termination constituted a violation of her right to free speech pursuant to the U.S. and state constitutions. Following discovery, Milligan moved for summary judgment.

The court's opinion is a curious one insofar as it addresses only two of the three prongs in the free-speech analysis. Specifically, the court discusses whether the Facebook posts (i.e., the speech at issue), involved a subject of public concern and whether Milligan's interest as an employer outweighed the interests of the plaintiff in her right to engage in free speech. What is curiously omitted from the court's opinion is any mention of the first prong of the free-speech analysis--whether the plaintiff's Facebook posts were made in her capacity as a citizen or as an employee, i.e., the Garcetti analysis. Whether the case would have come out differently had the court not skipped this step, as U.S. Supreme Court precedent requires, is a question I'll address but, first, let's look at how the court's decision did proceed.

As to the public-concern prong, the court determined that the Facebook posts, in which the plaintiff lamented the termination of three of her coworkers, was speech on a matter of public concern and therefore entitled to First Amendment protection. I would agree with the court's finding here. The court noted three factors that support this conclusion.

First, because her posts constituted speech criticizing a public employer "in his capacity as a public official," the speech is presumably a matter of public concern. Second, the court found support in the fact that the local media had covered the election was also an indication that the new County Clerk's decisions about how to run the office. And, third, the fact that several concerned citizens had called Milligan at home to express displeasure with the terminations of the three employees also indicated that the terminations were a matter of public concern.

Having concluded that the plaintiff's Facebook posts were protected speech, the court gave little attention to whether the balancing test (i.e., the final prong of the analysis), finding, instead, that the defendant had offered no evidence that the Facebook posts had interfered with his ability to effectively operate the office. As a result, the court denied the defendant's motion and permitted the case to proceed to trial.

Now, turning back to Garcetti. It is unclear to me from the opinion why the court failed to address the Garcetti prong (i.e., whether the employee's speech--her Facebook posts--were made in her capacity as a citizen or an employee). I have to assume that the parties failed to brief the issue, although I'd hope that was not the case. If it had been briefed, though, and the court had addressed it, how would it have come out? Would Garcetti have changed the outcome of the court's opinion?

To be fair, the court could have gone either way. On one hand, it could have been considered citizen speech, in light of the apparent interest in the local community about the changes that the new County Clerk would make after taking office. On the other hand, employee staffing and other, similar personnel decisions usually are considered internal, operational issues and speech about such issues are commonly found to be employee speech. Had the court found the latter to be the case, the Facebook posts would not have been protected by the First Amendment and the plaintiff's claim under the federal constitution would have been dismissed.

There is one more perspective worthy of discussion, though. When advising employers about how to handle employee's criticisms posted on Facebook, I offer the following litmus test: How would you respond if the comments had been made at the local watering hole during Happy Hour or at a Little League game on Sunday afternoon. Would the employer terminate if the comments were made in a different context? If the answer is "no," then I suggest that termination is not appropriate in the Facebook context.

Here, I think the answer would have been "no"--the new County Clerk would not have been as quick to terminate had he learned that the plaintiff had lamented the termination of one-third of the office's full-time staff at a friend's holiday party instead of on Facebook. If that would have been the case and had my litmus test been applied, Milligan would not have been terminated, the whole mess would have faded into the background over time and no lawsuit would have been filed.

The lesson to be learned for employers? When faced with negative or critical commentary made by an employee via Facebook, take a deep breath, step back, and consider how bad is it really? If you can, suck it up, get over your pride, and carry on, realizing that it was not the first, nor will it be the last time that one of your employees is displeased with your decisions.

Mattingly v. Milligan, No. 4:11cv00215 JLH (E.D. Ark. Nov. 1, 2011). (H/T Evan Brown, Internet Cases).

See also,
No First Amendment Protection for Teacher's Facebook Posts
Court Denies Reinstatement to Teacher Fired for Facebook Posts
Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

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