Social Media and Public Employees - Part 3

Employee First Amendment Protection & Employer Discipline

Thalacker & O’Mara (2012) report an increase in public employee’s claims of the first amendment protection in defense actions for firings or discipline for social media use:

• An Alabama paramedic fired in March 2012 by the Mayor for his use of Facebook to protest the elimination of his department and to organize attendance at a council meeting to discuss the issue. 
• City council member in Michigan participates in a rally, carrying protest signs depicting graphic violence against President Obama and others. YouTube video of the rally surfaces in August 2012, prompting calls for the council member’s resignation and scrutiny by the secret service. 
• New York City Police Department disciplines 17 employees in August 2012 for racist comments made on Facebook regarding participants in the West Indian American Day Parade. 
• High school English teacher in Georgia is suspended without pay when school administrators receive anonymous complaints regarding objectionable content on her Facebook page including drinking and other activities. 

These cases are symptomatic of the larger issue: lack of communication regarding the boundaries of social media use by employees, and the conduct expectations of government employers. The courts have long held that public employers have a right to place limits on the speech of their employees to in order to avoid disruption and maintain efficiency in operations. Both Thalacker & O’Mara (2012) and Ryan (2012) maintain that the first test the court will apply in such disputes is to determine whether the expression in question was a matter of “public concern”, which is entitled to constitutional protection, or whether the expression is simply a matter of “personal interest.” Organizing attendance at a council meeting may be considered a “public concern”, while inappropriate Facebook postings regarding a vacation would be “personal interest.”

The ramifications of the test currently used by the courts to determine the level of constitutional protection to afford to the speech of public employees has far-reaching consequences. This is a new level of complexity in employer-employee relations made possible by the ubiquitous nature of access to the internet and social media.