By Alexis Martinez

Anecdotes about people losing their jobs because of social media use continue to increase.[1] A common scenario is when an employee is fired for expressing a viewpoint that her employer finds controversial or offensive.[2] When an offensive or controversial social media post goes viral, the immediate reaction for some viewers is to seek out, shame, and punish the poster by calling for her termination.[3]

Problems arise when public sector employers give in to that collective impulse and fire an employee after learning of her private actions on social media.[4] Yet, the problem with public sector retaliation cases, when brought to court, is that the First Amendment balancing test as currently applied fails to protect public employees for offensive and unpopular speech that warrants protection.[5]

Traditionally, the First Amendment grants the highest protection to “pure speech.”[6]  This protection extends to the publishing and disclosure of information, such as with social media.[7]  The Supreme Court has also recognized the importance of symbolic speech, which includes controversial gestures such as waving a red flag as an emblem of governmental opposition, wearing armbands in school to protest the Vietnam war, and attaching the peace sign to an upside-down American flag.[8]  In those instances, the Court emphasized the importance of the First Amendment as a check against prior restraints on speech.[9]  When a government employer takes retaliatory action against an employee because of her offensive social media post, it exercises a content-based restriction on speech that conflicts with the right to speak without fear of government retaliation.[10]

This right to be free from retaliation is not the only interest at stake, however; the government also has a legitimate interest in ensuring the efficient operation of the workplace.[11] The Supreme Court lowered the standard further when it held that a government employer is not required to prove actual workplace disruption before retaliating against an employee for her speech.[12]  As a result, the government as an employer chooses to regulate the content of employee speech and conditions continued employment on avoiding public outcry.[13]

Due to the pervasiveness of social media and the reticence of the Supreme Court in establishing clear guidance on First Amendment speech protections, inconsistent results appear in private and public employment court cases.[14] The First Amendment does not apply to private sector employers because the First Amendment does not extend to the actions of private individuals; therefore those employees typically have a diminished expectation of First Amendment speech protection.[15] Conversely, public sector employment cases fall within the scope of the First Amendment because the government would be the actor as the employer, and it would therefore face certain limitations in governing employee speech. Yet, social media cases invert this dynamic by arbitrarily focusing on the content of an employee’s speech resulting in instances where a private employee’s offensive speech is acceptable as long as it is tied to union activity.[16] Meanwhile, a public school teacher lost her job because she referred to her students as “future criminals.”[17] Under the current approach, a public employee’s access to First Amendment protection hinges on the popularity of her viewpoint and her employer’s sensitivity to negative publicity.[18] The content of the speech matters in both instances; however, the speech weighs heavily against the employee in public sector cases.

For social media cases, one possible solution lies in balancing the burdens by rejecting the current Pickering-Connickstandard that courts have embraced in cases after Connick.[19] Instead of ignoring employer motive by using an arbitrary balancing test, courts should determine whether the employer terminated the employee because of the content of a social media post. Next, if the employer retaliated against an employee for off duty social media speech, determine whether the speech falls outside of First Amendment protections: obscenity, incitement to violence, and fighting words.[20]If it falls outside those categories, then the employee speech warrants protection as pure speech. The burden would then rest on the employer to prove the speech lacks protection. This approach works best because it recognizes that the underlying rationale behind the First Amendment is the free exchange of ideas, even if it includes offensive and unpopular ones. Moreover, it helps stem back the potential harms caused by unchecked collective outrage.

 

[1]SeeLydia Price, 20 Tales of Employees Who Were Fired Because of Social Media, People (July 8, 2016), https://people.com/celebrity/employees-who-were-fired-because-of-social-media-posts/ (describing employees fired for making posts about illicit drug use, plans to quit after using up sick leave, and crude humor).

[2]SeeAliah D. Wright, Fired for Facebooking: Nasty Political Posts Could Cost Employees Their Jobs, SHRM(Sep. 26, 2016), https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/fired-for-facebooking-nasty-political-posts-could-cost-employees-their-jobs.aspx (warning employees to limit controversial and offensive posts on social media).

[3]See Molly Olmstead, Professor who Called Barbara Bush an “Amazing Racist” Won’t Be Fired, Slate (Apr. 28, 2018),https://slate.com/news-and-politics/2018/04/fresno-state-professor-randa-jarrar-insulted-barbara-bush-not-fired.html

[4]SeeDan Ivers, Court Upholds Firing of Paterson Teacher who Called Students ‘Future Criminals,’NJ.com (Jan. 11, 2013), https://www.nj.com/bergen/index.ssf/2013/01/court_upholds_firing_of_paterson_teacher_who_called_students_future_criminals.html (describing how a teacher’s former principal forwarded her Facebook post to her current employer).

[5]SeeCohen v. Cal., 403 U.S. 15, 21 (1971) (holding that Cohen’s jacket emblazoned with “Fuck the draft” is protected speech); see also Street v. New York, 394 U.S. 576, 592 (1969) (declaring the First Amendment protects offensive speech).

[6]Pure Speech, Black’s Law Dictionary (10th ed. 2014) (defining pure speech as “words or conduct limited in form to what is necessary to convey the idea”)

[7]SeeBartnicki v. Vopper, 532 U.S. 514, 527 (2001) (declaring acts of ‘disclosing’ and ‘publishing’ information constitutes pure speech).

[8]SeeSpence v. California, 418 U.S. 405, 405-06 (1974) (invalidating a Washington statute forbidding the display of a U.S. flag with any superimposed words or imagery); seeTinker v. Des Moines, 393 U.S. 503, 505-06 (1969) (wearing armbands to protest the Vietnam war protected speech); see also Stromberg v. California, 283 U.S. 359, 369-70 (1931) (invalidating criminal prohibition on waving a red flag as an emblem of opposition).

[9]See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (quoting Patterson v. Colorado ex rel. Attorney Gen., 205 U.S. 454, 462 (1907)) (stating that First Amendment serves to prevent “previous restraints upon publications as had been practiced by other governments”)

[10]SeePickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (quoting Keyishian v. Board of Regents, 385 U.S. 589 (1967)) (declaring “the theory that public employment which may be denied altogether may be subjected to any conditions … has been uniformly rejected”); see alsoUnited States v. Am. Library Ass’n, 539 U.S. 194, 210 (2003) (stating that the government may not deny a constitutionally provided benefit even if the bearer’s status is in dispute).

[11]SeePickering, 391 U.S. at 568 (formulating a test in which the employee’s interest in speaking as a citizen on a “matter of public concern” is weighed against the government’s interest in “promoting the efficiency of the public services it performs”).

[12]See Connick v. Myers, 461 U.S. 138, 152 (1983) (determining that an employer does not need to wait for actual disruption to take action).

[13]See generally Pickering, 391 U.S. at 568 (rejecting the premise that the government may condition employment on the forfeiture of rights and pledging of loyalty).

[14]See NLRB v. Pier Sixty, LLC, 855 F.3d 115, 117-18 (2d Cir. 2017) (holding that an employee Facebook post criticizing his employer as “a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! … Vote YES for the UNION!!!!!!!” is protected speech).

[15]See Jeannette Cox, A Chill Around the Water Cooler: First Amendment in the Workplace, Insights on L. & Soc’y (2015),https://www.americanbar.org/publications/insights_on_law_andsociety/15/winter-2015/chill-around-the-water-cooler.html (describing limited employee speech protection and its chilling effect on discussing controversial topics at work).

[16]See NLRB, 855 F.3d 115 at 124-25(holding that private sector offensive speech is protected when the content of the speech includes concerted activities).

[17]See Ivers, supra note 4 (describing offensive Facebook post resulting in teacher’s termination).

[18]SeeCohen v. Cal., 403 U.S. 15, 21 (1971) (holding that the government cannot suppress speech just because others find it offensive).

[19]See Connick v. Myers, 461 U.S. 138, 152 (1983) (holding that the Pickering balancing test does not require actual disruption and that courts can use a threshold inquiry).

[20]SeeMiller v. California, 413 U.S. 15, 24-25 (1973) (establishing a three-prong test for determining obscenity);Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (holding that speech promoting lawless action lacks protection); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949) (finding no First Amendment protection for speech used in violation of criminal statute); Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942) (defining fighting words as words likely to “cause an average addressee to fight”).