The First Amendment and Facebook
I was recently informed of a situation in which a former employee called their new supervisors “idiots” on their
personal Facebook page. In response, the employer threatened disciplinary action (i.e. termination) for the
employee’s grand transgression.
Now, everyone bitches about their boss, and everyone knows it - including the boss. Finding out that someone
called you a jerk or an asshole or an idiot is not the end of the world and you don't need to fire them. Replacing a
competent employee is much more expensive than keeping them.
At any rate, the employee asked the usual questions: “Can they discipline me for that? What about my First
Amendment Rights?” These are pretty common questions whenever a public employer uses an public employee’s
speech as grounds for discharge or discipline.
And, at one time, the United States Supreme Court’s answer to this question was a simple “Yes.” Justice Oliver
Wendell Holmes wrote in 1892 that: “There may be a constitutional right to talk politics, but there is no constitutional
right to be a policeman.” As late as 1952, the Supreme Court (in Adler v. Board of Education) said: “You have a
constitutional right to say and think as you will, but you have no constitutional right to work for the government.”
But by 1967, that premise had been rejected, and was replaced with the fundamental principle that public
employment cannot be conditioned upon a surrender of constitutional rights.
Because our Founding Fathers believed that freedom of expression was basic to a free society; that the freedom of
inquiry and liberty of expression were essential to the process of debate and discovery - they wrote the First
Amendment to the U.S. Constitution. The one that says "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of grievances."
The most important thing to note about the First Amendment is its limitations on government. It prohibits the
government from making laws that in any way infringe on the rights of religion, speech, press, assembly and
petition. And the Fourteenth Amendment extends these same prohibitions to state and local governments.
It's been a long time since I’ve exercised much of my labor law knowledge, but the example above still seems like a
pretty extreme reaction from the employer. If people were fired for actually using Facebook to organize collective
action (i.e. a “sick-out during emergency snow removal operations), I might be able to understand it better, but it's not
really clear that just bitching about your boss on Facebook really qualifies as a terminable offense.
In fact, a recent National Labor Relations Board (NLRB) ruling suggests companies cannot fire employees for things
like complaining about their boss on Facebook. The NLRB stated that such complaining about the boss is a
"protected activity" under the National Labor Relations Act. Kind of like watching football on Sundays.
So do public employees have protection from retaliation for exercising certain First Amendment rights? Well, the
quick answer is “yes.”
Not yet ready to say that public employees are protected from retaliation for any First Amendment activity, the
Supreme Court has been cautious in this area, limiting the protection to speech that is on matters of "public
concern." In other words, a government couldn’t put someone in jail for complaining about a meager raise, but they
might still be able to fire them for the same reason - unless the complaint was a matter of "public concern." It is not
certain if an incompetent, potentially dangerous supervisor is a matter of “public concern” - although I think a pretty
good case could be made here.
The U.S. Supreme Court first recognized that public employees could sue for retaliation in 1968, in the case
Pickering v. Board of Education. The Supreme Court acknowledged that government employers must protect
business efficiency, but also recognized that “the threat of dismissal of public employment is a potent means of
inhibiting speech.”
So, the Court created a balancing test that remains in effect today: "the interests of the employee as a citizen, in
commenting on matters of public concern" must be balanced against "the interest of the State as an employer, in
promoting the efficiency of the public services it performs through its employees."
In order to bring a claim against your employer under the First Amendment, you must convince the court that your
interest in speaking openly on a matter of public concern outweighs the government's interest in having an efficient
workplace.
This is important because, as the Supreme Court has said, "government employees are often in the best position to
learn the deficiencies of the government agencies for which they work and it’s important to allow government
employees to expose these deficiencies to the community, so the public can debate how best to improve them."
For a public employee claiming retaliation by the employer, the court must find that:
• the employee's speech was a matter of 'public concern'; and
• the interest of the employee as a citizen, in commenting on matters of public concern, outweighs the
employer's interest in promoting the efficiency of the public services it performs through its employees.
Applying the “public concern” test has created a fundamental problem – no one knows what it is. Determining
matters of “public concern” is like defining pornography – “I know it when I see it.”
Then, in Garcetti v. Ceballos, the U.S. Supreme Court decided that employees must be acting as private citizens to
receive First Amendment protection. That is, they must be acting as private citizens and not speaking out while
performing their job duties.
So, the boss can control what is said on the job, but not what the employee says on matters of public concern as a
private citizen.
Speech addressing corruption or discrimination in the workplace have been generally viewed by the courts as
matters of public concern. But, speech about personnel or internal disputes are considered unprotected because
they involve personal grievances rather than matters of public interest.
So what does all of this legalese mean? It means that your employer may dismiss you for speech that is not
considered of “public concern” (such as employee grievances concerning internal office policy, office morale,
whether a grievance committee was needed or whether your boss is an "idiot.")
To have the best chance of receiving First Amendment protections, the employee must be on his or her own time,
and speaking in a forum for citizen expression on matters of public concern. Facebook is a forum for citizen
expression (though not always of “public concern.”) It’s no different than government employees who write to a
local newspaper about the policies of their government employer or who make public statements outside the course
of performing their official duties.
They have First Amendment protection because their activities could have been engaged in by anyone NOT working
for the government. In this particular case, an employee commenting on the competency of his or her supervisors
on Facebook, on their own time, appears to be a protected activity. The method or location of the comments don’t
really matter.
Having said all of this, the employee must realize that it's not any smarter to bitch about your boss on Facebook
(where they might see it) than it is for an employer to threaten termination for doing so.
The employer in this case most definitely seems to be overreacting. But to say it's a violation of the law is kind of a
stretch, too.