March 14, 2022
Rachel Bender Turpin
Social media usage has become a ubiquitous part of life for much of the world. The Pew Research Center reports that in 2021, 72% of Americans actively use social media for human connection, news and information sharing, and entertainment, up from just 5% in 2005. Social media has quite simply changed the world and employers are now grappling with how to respond to this change, especially as it relates to use of social media by their employees during particularly politically charged and divisive times.
While private companies have largely unfettered rights to discipline or fire employees for what they post on social media, public employers are much more constrained in their ability to police their employees’ personal social media usage. This is because public employees are protected from retaliation by their employers for exercising their rights to free speech under the First Amendment. Under these First Amendment protections, public employees generally have the right to speak out on matters of public concern or importance during their personal time and cannot be disciplined for doing so as long as their exercise of that right does not unduly disrupt or interfere with their employer’s interest in maintaining workforce efficiency.
The Three-Part Balancing Test
Courts utilize a balancing test, first established by the Supreme Court in Pickering v. Board of Education (1968), to weigh the free speech rights of government employees against their government employers’ interest in avoiding disruption and maintaining workforce discipline.
To prevail on a First Amendment retaliation claim, the employee must meet three requirements. First, the employee must have spoken as a private citizen and not in their capacity as a public employee. Second, the speech must have pertained to a matter of public concern, meaning a subject of general interest and value to the public at large. Examples of subjects that courts have deemed matters of public concern include police conduct, racial justice and equity (as opposed to racially charged/offensive remarks), public policy concerns, misuse of public funds, and religion. Finally, the employee must also be able show that the relevant speech was a substantial or motivating factor in the adverse employment action.
If the employee can satisfy those three requirements, the burden shifts to the employer to demonstrate that its interests in maintaining the efficiency of the public services it performs outweigh the interests of the employee in commenting upon the matter of public concern as a private citizen. In Rankin v. McPherson (1987), the Supreme Court recognized several factors to be considered when balancing the impact of an employee’s speech against a public employer’s operations and efficiency:
whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.
Courts have held that police departments in particular have heightened interests in discipline, as well as a special need to avoid disruption in order to provide for the public safety (see Moser v. Las Vegas from 2021). And while a public employer can meet its burden by showing a reasonable prediction of disruption, it must be able to provide some evidence that the court can consider when determining whether the prediction appears reasonable; mere speculation of disruption is not enough (see Nichols v. Dancer from 2011)
It is only after the court has determined that the employee’s interests in their free speech activities outweigh their employer’s interests in efficient operations and the administration of discipline that the employee can proceed with a viable claim.
In Grutzmacher v. Howard County (2017), a fire department employee posted an offensive joke on his personal Facebook page while on duty. A volunteer replied with a racially charged comment, which the plaintiff liked and responded positively to. The court found that the department provided sufficient evidence of actual or potential disruption in the workplace outweighing plaintiff’s First Amendment interests because the comments could interfere with the public’s trust in the department and several coworkers had informed plaintiff’s supervisor that they were no longer comfortable working with him because of it.
Public employers must tread carefully when deciding whether to take disciplinary action against employees for comments they make off-duty on their personal social media. If the employee is speaking in their personal capacity on a matter of public concern, then the employer should take action only if they can provide some evidence that reasonably demonstrates (or would justify a reliable prediction) that such comments will result in disruption of the agency’s operations. Violation of an employee’s First Amendment rights can result in costly damages under 42 U.S.C.A. § 1983, so it is important to talk to human resources staff and agency legal counsel before taking any action.
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