Employees’ Social Media Posts And The First Amendment: What Is A Government Employer To Do?
In an era wherein social media is omnipresent, employees, like everyone, post myriad opinions on widespread topics across their social media platforms. Employers may receive complaints related to their employees’ social media activity and have to decide whether discipline is appropriate. While the First Amendment does not restrain private employers from restricting employee speech, the First Amendment does place some restraints on government employers’ ability to do so. However, this does not mean that a government employee’s right to freedom of speech is without limitations.
As neutral investigators, we do not advise or make decisions regarding whether government employers should discipline their employees based on their social media activity. However, when we are called upon to investigate these situations, we will obtain information about the circumstances of government employees’ social media posts. Accordingly, we are in a unique position to provide government employers with the information they need to determine whether First Amendment protections might apply. Below are three central factors for government employers to consider when evaluating whether to discipline an employee based on their social media activity. While these factors can be instructive, we must keep in mind that these assessments are complex and situation-based and government employers are strongly encouraged to seek legal counsel on the best course of action.
Speech As A Private Citizen Or In The Course Of Official Duties. First, generally, when government employees speak in the course of their official duties, First Amendment protections likely do not apply. Therefore, it is imperative for an employer to assess whether a government employee spoke on social media in their capacity as a private citizen or in the course of their official duties. In making this assessment, consider whether the employee’s social media account is personal or work-related, whether the employee identifies themselves as a government employee or mentions their title or where they work, and the content and context of the post.
Speech On A Matter Of Public Concern. Second, if the government employee spoke on social media as a private citizen, the next question becomes whether the employee spoke on a matter of public concern. Government employees speaking as private citizens on matters of public concern are generally protected by the First Amendment. This assessment can be challenging, as it is fact-specific and varies on a case-by-case basis. Consider the topic of the social media post and whether there are any arguments to be made that the post pertains to a matter of public concern.
Balancing Test. Finally, the inquiry does not end just because a government employee spoke as a private citizen on a matter of public concern; a balancing of interests must still occur. The interest of the employee’s First Amendment right to free speech must be weighed against the employer’s interest in restricting that speech. The employer might have legitimate concerns about the employee’s speech undermining operational efficiency, disrupting workplace harmony, impacting job performance, impacting the public’s perception of the employer, disturbing the potential confidentiality of the information the employee shared, or violating the law. Overall, this test is intended to strike a balance between the employee’s right to freely express themselves and the employer’s interest in maintaining a functional and harmonious workplace.
All of this considered, government employers should exercise caution when determining whether to discipline an employee for their social media expression. Gather as much information as possible about the form, content, and context of the social media speech and thoughtfully consider and balance both the employee’s and the employer’s interests. While a government employee’s right to freedom of speech is not absolute, the employer must always keep First Amendment protections in mind in the context of workplace investigations and the resulting decisions regarding discipline.
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