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Social Media in the Workplace Part 2
Mar 11, 2019


By: Daniel J. Leffler

Scenario:  Officer X posts on his public Facebook page the following comment:  “Fellow citizens of City, it is unfortunate that your wasteful Chief of Police and spineless City Council members have refused to fund the purchase of new tactical weapons for the police department.  This decision will someday lead to certain harm for the citizens of City.”  Officer X is terminated.

I indicated in my previous article related to recent trends in the social media and the workplace (OPBA Police Beat, Volume 33, Number 2, Summer 2011) that there were potential 1st Amendment issues with regard to employer policies.  Many employers have instituted social media policies that restrict or limit a public employee’s ability to criticize, denigrate or voice any opinion about the employer.  This is seen, from the eyes of the employer, as insubordination or conduct unbecoming.  For the most part, the courts have upheld discipline or termination for certain employee speech and by virtue of these decisions, placed reasonable limitations on the public employees right to speech (conduct is also considered a form of speech).  Speech or conduct that disrupts or interferes with the public employer’s efficient and effective operation is punishable regardless of the 1st Amendment protection afforded the average citizen.  The Supreme Court has held, “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” See, e.g., Waters v. Churchill (1994), 511 U.S. 661, 671, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994) (plurality opinion) (“[T]he government as employer indeed has far broader powers than does the government as sovereign”).  Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.  Connick v. Myers (1983), 461 U.S. 138, 142, 103 S. Ct. 1684 (“[G]overnment offices could not function if every employment decision became a constitutional matter”).

However, the Supreme Court has adopted a standard to determine whether a public employee’s speech is protected speech or unprotected and subject to discipline.  The Supreme Court has held that the Constitution’s First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.  Under the First Amendment, (1) the speech restrictions that a government entity imposes in its role as employer must be directed at speech that has some potential to affect the entity’s operations; and (2) so long as public employees are speaking as citizens about matters of public concern, such employees must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.  See Garcetti v. Ceballos[1] (2006), 547 U.S. 410 at syllabus; 126 S. Ct. 1951.  “Thus, two inquiries guide interpretation of the constitutional protections accorded to public employee speech.  The first inquiry requires determining whether the employee spoke as a citizen on a matter of public concern.  If the answer is no, then the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.  If the answer is yes, then (1) the possibility of a First Amendment claim arises, and (2) the question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Garcetti at 418, citing Pickering v. Board of Educ. (1968), 391 U.S. 563, 88 S. Ct. 1731.  However, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, at 421.

The Court reasoned that, “The Court’s decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions.  See, e.g., Rankin v. McPherson (1987), 483 U.S. 378, 384, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (recognizing “the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment”).  Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to “constitutionalize the employee grievance.”  Connick, 461 U.S., at 154.

The Court has gone on to note in Borough of Duryea v. Guarnieri[2] (2011), 131 S. Ct. 2488, 2501, that a petition that “involves nothing more than a complaint about a change in the employee’s own duties” does not relate to a matter of public concern and accordingly “may give rise to discipline without imposing any special burden of justification on the government employer.” United States v. Treasury Employees (1995), 513 U.S. 454, 466, 115 S. Ct. 1003.  “The right of a public employee under the Petition Clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts.” Duryea, at 2501.

So back to our scenario regarding Officer X, is the speech protected under the First Amendment so that Officer X can be reinstated or is it unprotected and Officer X’s termination will be upheld?  Every case involves different facts and circumstances, but how would you decide?

[1] In Garcetti v. Ceballos (2006), 547 U.S. 410 at syllabus; 126 S. Ct. 1951 (Holding Constitution’s First Amendment did not prohibit managerial discipline of public employees for making statements pursuant to employees’ official duties) A deputy district attorney employed as a calendar deputy by a county district attorney’s office (1) examined an affidavit that had been used to obtain a search warrant in a pending criminal case, (2) determined that the affidavit contained serious misrepresentations, and (3) wrote one of his supervisors a disposition memorandum recommending dismissal of the case.  The supervisors nevertheless proceeded with the prosecution.  The deputy, alleging that he had been subjected to a series of retaliatory employment actions as a result of the memorandum, initiated an employment grievance, which was denied.  The deputy then brought suit against the supervisors under 42 U.S.C.S. § 1983 in the United States District Court for the Central District of California, in which suit it was asserted that the supervisors’ alleged retaliation had violated the deputy’s free speech rights under the Federal Constitution’s First Amendment.

[2] In Borough of Duryea v. Guarnier (2011), 131 S. Ct. 2488, 2501 (Holding Employer’s allegedly retaliatory actions against public employee who petitioned employer through formal mechanism held not to give rise to liability under petition clause of Constitution’s First Amendment unless petition related to matter of public concern), Guarnieri filed a union grievance challenging his termination as chief of police. His grievance proceeded to arbitration pursuant to the police union collective-bargaining agreement.  The arbitrator ordered Guarnieri reinstated after a disciplinary suspension.  Upon Guarnieri’s return to the job, the council issued 11 directives instructing Guarnieri in the performance of his duties. The council’s attorney explained that the council “wanted to be sure that the chief understood what was going to be expected of him upon his return.”  Guarnieri filed a lawsuit against the borough under 42 U.S.C. § 1983.  Guarnieri claimed that his first union grievance was a petition protected by the Petition Clause of the First Amendment, and he alleged that the directives issued upon his reinstatement were retaliation for that protected activity.  The case proceeded to a jury. The District Court instructed the jury that the lawsuit and union grievances were “protected activity . . . under the constitution,” and that the jury could find defendants liable if it found an adequate connection between the protected activity and the alleged retaliation.  The jury found in favor of Guarnieri and awarded $45,000 in compensatory damages and $24,000 in punitive damages.  Defendants appealed on the ground that Guarnieri’s grievances and lawsuit did not address matters of public concern.  The Court of Appeals affirmed the award of compensatory damages.

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