Public agencies are increasingly dealing with issues of employee discipline concerning statements made on social media sites by employees. These situations often involve a balancing of employer interests with an employee’s constitutional right of free speech. A recent decision of the U.S. District Court of Northern Georgia discusses and addresses this issue, and in doing so provides some useful guidance.
In Duke v. Hamil, the court addressed a motion to dismiss by the defendants – the Chief of Police of the Clayton State University Police Department (Bobby Hamil), the department, and the university – claims brought by the plaintiff, Rex Duke, alleging a violation of his right to free speech. The alleged violation occurred when Duke, the Deputy Chief of Police, was disciplined and demoted for posting an image of the Confederate flag on his Facebook page, along with the statement “It’s time for the second revolution.”
In granting the defendants’ motion to dismiss, the court carefully considered the issue of whether the plaintiff’s Facebook posting constituted protected speech under the First Amendment. In making a claim of retaliation in violation of the First Amendment, the plaintiff needed to demonstrate that his speech was constitutionally protected and a substantial factor in his demotion. In analyzing this issue, the court relied on the Pickering standard, which requires that (1) the employee’s speech involved a matter of public concern; (2) the employee’s interest in speaking outweighed the government’s legitimate interest in efficient public service; and (3) the speech played a substantial role in the government’s employment decision. If the employee can make this necessary showing, the burden then shifts to the government to show that it would have made the employment decision in the absence of the protected speech.
The court first looked as to whether or not the plaintiff had written about a matter that involved a matter of public concern. In performing this analysis, the court considered that the plaintiff had posted his statement on his personal Facebook page and did not identify himself as a police department employee, and determined that the plaintiff had spoken as a citizen, not as a police department employee. The court then examined whether the plaintiff’s statement was a matter of public concern. The court found that the plaintiff’s speech can be fairly considered to relate to matters of public concern to the community, stating that “because a Confederate flag can communicate an array of messages, among them various political or historical points of view…it is plausible that Plaintiff was expressing his dissatisfaction with Washington politicians.”
The court then weighed the Plaintiff’s First Amendment interests with the interests of the police department in promoting the efficiency of public services it performs through its employees. The court acknowledged that while the plaintiff may have been intending to express his disapproval of Washington politicians, on its face his message could convey a drastically different message. The court concluded that the speech at issue was capable of impeding the government’s ability to perform its duties efficiently.
Finally, the court considered the fact that the plaintiff’s argument that his post was made when he was off duty, and that it was not widely disseminated by him but posted to his private Facebook account. The court observed that the plaintiff’s post had become public, and stated that “this illustrates the very gamble individuals take in posting content on the Internet and the frequent lack of control one has over its further dissemination. And even though there was no social media policy prohibiting political posts on websites like Facebook, the absence of such a policy did not foreclose a response to speech that compromised the Department’s interests.”
The court’s decision in Duke, along with its reasoning concerning the risks of posting comments on the Internet, particularly inflammatory comments, is a useful reminder that Internet activity is not without risk for employees, and that employers can respond when such comments impact the work environment.