Public Employees, Private Speech: 1st Amendment doesn’t always protect government workers

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High-profile controversies over police shootings, questionable promotions, racial profiling, attacks on law enforcement and race-based incidents have led to an increase in public employees being disciplined for publicly posting commentary deemed offensive or incendiary.

Public employees have been suspended for all manner of speech—supporting the shooting of police officers, lauding officers for shooting citizens, criticizing their students or co-workers, mocking minorities or religions and for a litany of other messages on social media. Consider the following:

• A Nashville, Tennessee, police officer was fired in February after an investigation into a Facebook comment he made about how he would have shot motorist Philando Castile five times instead of four. Castile died last July after a St. Paul, Minnesota, officer shot him four times during a traffic stop.

• A fire captain in Austin, Texas, was suspended in November after posting inflammatory political opinions regarding Hillary Clinton and President Barack Obama on Facebook.

• A Mount Vernon, New York, fire lieutenant was suspended last August for an Instagram post expressing support for Micah Johnson, who killed five Dallas police officers and wounded seven others in a sniper attack.

• A New Rochelle, New York, police sergeant was suspended in August because of a Facebook post criticizing the Black Lives Matter movement and protesters.

The number of such social media cases involving public employees disciplined for posts has been on the rise, observers say.

“I suspect the reason why is that social media has become a uniquely visible and widely used platform for communication over the past decade,” says Daniel Horwitz, a constitutional lawyer in Nashville. “Today, for example, if a public employee posts a racist statement on Facebook or Twitter, the statement can be widely disseminated in a matter of minutes, and the public exposure can be almost instant. Obviously, that wasn’t the case 20 or 30 years ago, so similar incidents became public much less frequently.”

In the past, public employees could engage in inflammatory speech on the telephone or in personal conversations at home or work without those conversations being memorialized. However, when public employees post such statements online for the world to see, there can be negative ramifications.

“These Facebook posts are the new watercooler talk,” says Paul Secunda, a Marquette University law professor whose scholarship addresses the free speech rights of public employees. “Public employers do have the right to discipline employees to maintain discipline,” he says. “Unprofessional rants that are inconsistent with the norms of a police officer can rightfully lead to punishment.”

However, some believe it’s unseemly to allow the government to punish employees for purely off-duty speech created in the privacy of one’s home. Missouri City, Texas-based attorney Larry Watts represents public employees in free speech cases. “When speech is made off duty,” he says, “whether by voice, gesture, smoke signals, Morse code or Twitter … the speech should be protected. It is called off-duty or private time.”

THE MEASURE of Policies

Some of these public employee social media policies seem overly broad. For example, the police department in Petersburg, Virginia, issued a policy that prohibited any negative comments about the department. One of the provisions provided: “Negative comments on the internal operations of the bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law.”

Two veteran police officers, Herbert Liverman and Vance Richards, were punished for making comments critical of the department for promoting young officers who did not have sufficient experience. One of the posts read:

“There used to be a time when you had to earn a promotion or a spot in a specialty unit … but now it seems as though anything goes and beyond officer safety and questions of liability, these positions have been ‘devalued.’ “

A three-judge panel of the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled in December in Liverman v. City of Petersburg, that the social media policy was too broad. Judge J. Harvie Wilkinson noted the “astonishing breadth of the social networking policy’s language.”

He wrote that “the speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers’ freedom to debate matters of public concern.”

The case has been remanded back to the district court, and the plaintiffs have now filed a motion for summary judgment.

The policy was too broad, explains Richmond-based attorney Andrew T. Bodoh, who represents Liverman and Richards. “The policy went so far as to claim that the employees had no free speech protections when they made comments that negatively impacted the department, city or employees,” he says. “The policy treated the police department as having all the power.”

For many years, public employers did have all the power and public employees had no free speech rights. The prevailing view was expressed by then-Massachusetts Supreme Judicial Court Justice Oliver Wendell Holmes Jr. in McAuliffe v. New Bedford (1892): “The petitioner may have a constitutional right to talk politics, but he does not have a constitutional right to be a policeman.” The prevailing wisdom was that public employees willingly relinquished their free speech rights when they accepted public employment on or off duty.

That view held sway until the late 1960s, when the Warren court changed free speech law for public employees with Pickering v. Board of Education. The high court held that Illinois public school teacher Marvin Pickering had a free speech right to send a letter to the editor of his local newspaper critical of the school board’s allocation of money.

Justice Thurgood Marshall wrote: “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The court later refined this public concern and balancing inquiry in Connick v. Myers (1983), a case involving renowned New Orleans district attorney Harry Connick Sr. (father of the famous musician), who fired an assistant district attorney for distributing a questionnaire at work that criticized office policies. The court sided 5-4 with Connick, the majority characterizing the assistant DA’s questionnaire as mainly “an employee grievance about internal office policy.”

For years, courts first asked whether a public employee spoke on a matter of public concern or importance. If the speech is merely a private grievance, a First Amendment claim fails, because the speech doesn’t carry much importance for the public at large. If the speech touches on matters of public concern, then the court balances the employee’s right to free speech against the employer’s interests in an efficient, disruption-free workplace.

To determine whether a public employee’s speech is too disruptive, a court asks whether it affects close working relationships, interferes with the employer’s normal operation of business or impairs discipline on the job.

A new threshold

The so-called Pickering-Connick balancing test served as the legal lodestar for several decades until the U.S. Supreme Court introduced a categorical threshold test. In Garcetti v. Ceballos (2006), the court declared that when public employees make statements pursuant to their official job duties, they have no free speech protection at all—even if the speech blows the whistle on alarming governmental corruption. The Garcetti decision left many public employees without a constitutional remedy, forcing them to rely on whistleblower statutes, which vary from state to state and may not protect their speech.

Garcetti has had an indelible impact on free speech cases of public employees. In fact, many plaintiffs attorneys refer to the phenomenon of being “Garcettized.” However, Garcetti often doesn’t control public employee online-speech cases, as the employees often are not engaging in official, job-duty speech when they post online comments.

Nonetheless, public employees often lose free speech cases because courts defer to an employer’s judgment that the employee’s inflammatory posts will cause disharmony or make the public view the public employer with derision or disrespect.

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“Public sector employees still find themselves in the Pickering-Connick-Garcetti line of cases,” Secunda says. “It is very difficult to win these cases.”

The Supreme Court offered a glimmer of hope to public employees in its most recent relevant decision, Lane v. Franks (2014). In that case, the court ruled that public university officials violated the First Amendment when they disciplined a college administrator for his truthful court testimony about financial improprieties involving an Alabama state representative receiving monies from the college.

“Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes,” wrote Justice Sonia Sotomayor. “That is so even when the testimony relates to his public employment or concerns information learned during that employment.”

Secunda believes that Lane “cabins Garcetti and makes clear the employee speech must be pursuant to official duties and not just speech about their work. This may signal the pendulum starting to slowly swing back in favor of public employee free speech.”

What’s Protected Speech?

The legal landscape is less than clear as to when public employees can vent online and avoid problems at work. “I think that courts increasingly defer to government’s efforts to control its employees’ speech—both on duty and off duty—to protect its own expression,” says University of Colorado law professor Helen Norton. “In many of these cases, courts and employers appear concerned not about what such off-duty speech reflects about the worker’s job performance but instead about what it might lead the public to attribute to the employer.”

Secunda draws the distinction. “Generally, when public employees vent on Facebook or another social media platform, they are not speaking pursuant to their official duties,” he says. “They are speaking more like Marvin Pickering did when he wrote his letter. In other words, Facebook posts are the 21st-century equivalent of Pickering’s letter.”

But what should happen when a public employee vents frustration on Facebook and that venting goes viral or causes a problem at work?

“Yes, public employees can and should be able to vent,” says Exeter, Rhode Island-based attorney J. Curtis Varone, who practices law in that state and Maine. “However, when the venting shows a racial animus—or gender, ethnicity, religion, disability, etc.—that is inconsistent with the ability to serve everyone in the community. They have identified themselves as having a bias that is inconsistent with what we expect from our public employees. This goes to both sides. Minority employees who harbor and espouse hate should be treated the same as white employees who harbor and espouse hate.”

Experts acknowledge that when a public worker’s speech creates actual disruptions on the job, bosses should have the ability to mete out discipline. “A public employer should be able to discipline a public employee for online speech when the speech is made on work time, on the employer’s electronic hardware, and is actually disruptive of ongoing processes or a threat to public safety,” Watts says.

COMMUNITY CONCERNS

When a public employee’s posts create a real fear of backlash from the community, courts often defer to the employer’s judgments. “For example, I think such concerns are especially strong where a police officer’s off-duty speech—on social media or elsewhere—undermines a police department’s ability credibly to communicate its commitment to evenhanded law enforcement regardless of race,” Norton explains. “For example, consider the message sent to the public if a police chief were to march in a Klan parade while off duty—or sends a series of racist tweets.”

“Employers have an interest in distancing themselves from hateful speech, racist speech or other speech that would undermine the effectiveness of the workplace,” Nashville lawyer Horwitz says. “These concerns are also especially heightened for first responders and other public employees who require the public’s complete trust that they will discharge their duties faithfully and impartially without regard to factors like a person’s race, gender or sexual orientation.”

However, Horwitz explains that “problems arise when an employer punishes an employee to promote a personal agenda, when discipline is more severe than necessary, or when discipline is meted out inconsistently for similar offenses.”

An example might be when “an offensive comment about Donald Trump supporters is treated differently from an offensive comment about Black Lives Matter supporters,” says Horwitz. “In other words, the onus should be on the employer to demonstrate that the effectiveness of the workplace was actually undermined in some meaningful way as a consequence of an employee’s decision to speak out.”

Professor Norton believes the courts should impose some duty on government employers to demonstrate how off-duty employee speech actually harms the government’s job operations.

“Courts’ unconstrained deference to government’s ability to constrain their workers’ off-duty speech could permit public employers to punish workers for any off-duty speech to which the public might object without any meaningful relationship to the government’s effectiveness,” she says.

However, the 4th Circuit’s decision in Liverman may signal a trend of courts closely examining public employers’ social media policies. This decision is important because, like Sotomayor in the 2014 Lane decision, it recognizes the importance of public employees’ speech to the marketplace of ideas.

“Public employees typically are the people that have the knowledge and the experience to speak as experts on a lot of these important issues,” Bodoh says. “You wouldn’t want me as a lawyer acting as your dentist. We the public want the people with the most knowledge to speak on matters of public policy.”

“I would love to see more robust protections introduced to safeguard whistleblowers and protect public employees from discipline when they have communicated with elected officials or the press,” Horwitz adds. “I’d love to see more states award employees automatic treble damages and attorneys’ fees whenever a court determines that they were disciplined improperly for engaging in protected speech. Provisions of this nature should help deter employers from engaging in questionable disciplinary practices while simultaneously helping to offset the chilling effect that is created by the average employee’s inability to afford protracted litigation.”


David L. Hudson Jr., a regular contributor to the ABA Journal, serves as the ombudsman for the Newseum Institute’s First Amendment Center.

This article originally appeared in the May 2017 issue of the ABA Journal with this headline: “Public Employees, Private Speech: The 1st Amendment doesn’t always protect government workers on or off the job.”





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