Abstract:

The right to free speech is conveyed within the context of the First Amendment of the Constitution. “Free speech” is specifically enumerated in the text, and the meaning has been the subject of controversy and judicial interpretation throughout history. For example, can a person yell fire in a public place when there is no fire? In Schenck v. United States (1919), the Court opined that if the speech is false and “used in such circumstances and are of such a nature as to create a clear and present danger; the speech is not protected” (para. 5). In the modern era of the Internet and social media, the right to free speech is further complicated when a government organization is your employer (Nott & Moniz, 2017).

Over the past several years, there have been increased media reports of police, fire, emergency medical services employees, and members of the armed forces being terminated or disciplined for speech related to their “off-duty” Internet and social media use. Public social media platforms such as Instagram, Facebook, and Twitter provide an open forum for participants to share information and opinions. Public service employee social media use has been under increased scrutiny. A racially sensitive or political statement may cause the public to question if the employee can perform their duty objectively and without bias (Way, 2020).

The number of public service employees disciplined or terminated for violations of policy or law related to their off-duty Internet or social media content or speech is unknown. However, a simple Internet search using the terms “police, fireman, EMT or military fired for social media posts” yields hundreds of recent results. Currently, there is no known government or scholarly database that tracks this type of information.

Employers may receive complaints or learn of an employee’s Internet and social media use from several sources. A spouse, friend, co-worker, or law enforcement organization may notify the organization that an employee has engaged in social media use that may be inappropriate or illegal. A few different “watchdog” groups and organizations have begun to track and monitor public service employee’s Internet and social media use.

One such group that attempts to monitor police use of the social media platform Facebook is the Plain View Project (PVP). This online group formed following the reports that Philadelphia Police Officers had formed a group on the Facebook platform “that appeared to endorse violence, racism and bigotry” (PVP, n.d., para. 1). According to the PVP, the group has uncovered thousands of Facebook posts and inappropriate content, that promoted violence and racism. To date, several police officers and public service employees have been disciplined or terminated because of their Facebook activities (PVP, n.d.)

Just before the 2021 Presidential inauguration, approximately 12 members of the National Guard were relieved of their duties for alleged comments they made on social media regarding extremist groups (Feis, 2021). Therefore, it is essential for public service employees, that use the Internet and social media to know what type of speech may be protected.

The International Association for Chief of Police (IACP) recommends that all local, county, state, federal, and tribal organizations develop a “sound” Internet and social media policy that includes five key policy areas: scope, official use, personnel use, legal issues, related policies IACP Model Policy (IACP, 2019). According to the IACP, citing Garcetti v. Ceballos (2006), organizations can implement a policy designed to regulate employee personal Internet and social media activities. A social media policy should inform the employee that personal statements [posts] made on the Internet or social media may not be “protected” by the First Amendment (IACP, 2019). In Garcetti, the Court held, an employer may implement policy speech restrictions and regulate employee personal speech that are necessary for the employers to operate efficiently and effectively.

Within the context of Garcetti, government organizations can regulate personal speech; however, the organization bears the burden of proving attribution. Moreover, the government must demonstrate how the speech affected or will potentially affect its ability to operate efficiently and effectively. Therefore, the answer to this question is, within the “narrow” context of Garcetti, a government organization can legally regulate an employee’s off-duty Internet and social media speech.

What constitutes speech on the Internet and social media? The obvious answer to this question is the written word, photos, audio, and video recordings that are directly attributable to the employee. What about if an employee “likes, forwards, or reposts” another person’s social media post? The issue of attribution or establishing authorship is complicated in an Internet and social media setting. The courts have generally held that written speech and content on an employee’s private social media account are legally attributable to the employee. In Bland v. Roberts, (2013), the court held that a “like” on a social media platform is the Internet version of speech and “is a substantive statement warranting First Amendment considerations” (p. 40).

In Shepard v. McGee (2013), Shepard [Plaintiff], a Department of Human Services, State of Oregon, Child Welfare employee, made several negative Facebook posts. Specifically, Shepard made negative comments about people on public assistance buying luxury items and statements that people on public aid should not have more children. The court held that the State’s interest outweighs Shepard’s First Amendment rights. The court further held the comments would adversely impair the employee’s ability to do her job (Shepard v. McGee, 2013).

In 2011, following a series of racially insensitive social media posts by employees, the Howard County, Maryland Fire Department implemented a revised code of conduct Howard County Fire and Rescue Code of Conduct that included language regarding off-duty Internet and social media activities. The code of conduct enumerated the type of speech that was subject to the code and prohibited employees from posting statements, content, or opinions that may undermine the department. In 2013, Mark Grutzmacher, Fire Battalion Chief, “liked” on his personal Facebook account several racially insensitive and threatening messages. Grutzmacher was subsequently terminated for violating the department’s code of conduct (Grutzmacher v. Howard Cty., 2017).

In October 2013, Grutzmacher [Plaintiff] filed a 42 U.S.C. § 1983 action alleging that he was terminated in retaliation for exercising his First Amendment rights. He further alleged that the department code of conduct violated the First Amendment by limiting an employee’s right to speak on matters of public concern. Grutzmacher’s case was subsequently combined with Kevin Buker, who was also terminated for similar conduct in violation of the code of conduct (Grutzmacher v. Howard Cty., 2017).

The Defendants [Howard County] moved for summary judgment in district court. The judge granted the motion of the Defendants. The court held a “like” on Facebook constitutes an endorsement of a comment and is considered speech. The court further held that the Plaintiff failed to show that he [Grutzmacher] was speaking as a citizen on matters of public concern. The “speech” was a personal grievance and not a matter of public concern. Therefore, the speech could undermine the department’s ability to perform its job efficiently. Because the Plaintiff was no longer an employee, the court held that he [Grutzmacher] lacked standing to assert his rights regarding the department’s social media policy. Therefore, the district court did not address the issue regarding the Plaintiff’s facial constitutional challenge of the department’s social media policy (Grutzmacher v. Howard Cty., 2017). Grutzmacher subsequently appealed the district court ruling.

In Grutzmacher, the United States Court of Appeals for the Fourth Circuit affirmed the district court ruling. The court held that certain comments made on the Internet and social media were protected, and others that affect the organization’s efficiency and created a workplace disruption were not protected. In the case of the latter, the employer’s interest outweighed the free speech interest of the employee (Grutzmacher v. Howard Cty., 2017). The courts have consistently held that workplace disruptions such as an employee’s continual complaining of unfounded mistreatment and persistent conflicts with management and peers may affect an organization’s efficiency and operations.

The court, citing Pickering v. Board of Education (1968), further opined that there is a public interest in having free speech and debates regarding issues of public importance. However, in Grutzmacher, the employee was not making statements of public interest. Government organizations can regulate speech that prevents the organization from efficiently and effectively discharging their duties (p. 342). In affirming the lower court judgment, the court held that the Grutzmacher was considered a third party and, as such, no longer had standing to challenge the organizational policy; therefore, the challenges to the policy were “moot” (p. 349).

In Grutzmacher, the court also cited Connick v. Myers, (1983). In Connick, Assistant District Attorney Sheila Myers was informed by the New Orleans, LA District Attorney [Connick] that she was being transferred. Myers opposed the transfer and informed her superiors of this fact. Prior to the date of the transfer, Myers distributed a questionnaire Connick v. Myers, 1983 Appx. A – Questionnaire to her peers to solicit information regarding the transfer policy and organizational employee morale. Myers was immediately terminated by Connick for failure to accept the transfer and distributing the survey. Myers filed a wrongful termination suit citing that the termination was a violation of the First Amendment (Connick v. Myers, 1983).

In Myers, the Court had to decide, was the questionnaire distributed by Myers constitutionally protected? In Myers, the Court citing Pickering, held that a public employee’s speech is only protected when the speech relates to matters of public concern. In Myers, the Court held that Myers’ speech was personal and specifically related to internal office issues. The Court further held that the employer did show sufficient evidence that Myers’ speech would interfere with the organization’s operations. Specifically, the Court held [Myers] speech may undermine the ability of the organization to discharge official duties and maintain proper discipline. Therefore, the survey was not protected speech under the First Amendment (Connick v. Myers, 1983).

According to Hudson (2017), the courts often apply what is referred to as the Pickering-Connick test to determine if an employee’s speech is constitutionally protected. When an employee makes statements online, there may be negative consequences. A public employee’s speech may not be protected when subjected to the Pickering-Connick test if a court determines that the speech falls within the context of Garcetti (Hudson, 2017).

Conclusion

The Internet and social media provide an unconstrained environment for individuals to express themselves. However, local, county, state, federal, and tribal government employees must exercise some restraint and good judgment as it relates to their Internet and social media activities. In Garcetti, the Court delineated between official statements and personal statement protections under the First Amendment. The Court also held that an employer could, within the context of Garcetti, regulate an employee’s official and personal speech. In Grutzmacher, the Court held that an employee could be terminated for personal speech that may adversely affect the organization’s ability to discharge its public duties efficiently and effectively.

There are no state of federal laws that prevents a government employer from monitoring employee Internet or social media activities when using government owned equipment or employee public use activities. However, the question of whether a government organization can compel access to an employee’s private Internet and social media username and password is an unsettled area of law (NCSL, 2020). Many states and the federal government have introduced legislation NCSL Access to Usernames and Passwords to protect the privacy of employees and prevent employers from compelling employees to provide usernames and passwords. Public employers should train employees on the organizational policies related to Internet and social media use. Employers should also encourage employees to report violations of policy to the chain of command.

The issue of what constitutes speech on the Internet and social media and the broad issue of attribution are not settled areas of law. Public employees must be trained regularly regarding acceptable official and personal speech on the Internet and social media platforms to protect the organization and employee. Many local, state, federal and tribal organizations have codified acceptable and unacceptable employee off-duty social media use in organizational code of conduct, standards of conduct, or policy.

The frequency in which employees receive this type of training may depend on specific jurisdictional requirements, the history of social media misconduct, organizational climate, and other social issues that may impact the organization or employee. The general trend for this type of compliance training is that every employee should receive relevant policy and compliance training when initially hired and at least every two years for incumbent employees. For example, the Howard County [Maryland] Department of Police requires all employees to receive ethics, code of conduct, and similar training at a minimum biennially (HCPD, 2018).

Training and education of public service employees are essential to prepare for contemporary changes or emerging requirements. Effective training programs should incorporate training activities designed to improve human performance and education activities designed to improve an employee’s knowledge and shape their decision-making capabilities (Stanislas, 2015). Research indicates that training methods that employ scenario-based, experiential learning, and reflective training practices improve learning outcomes (Phelps, et al., 2018).

For example, in 2017, following a series of inappropriate off-duty social media posts, the United States Marine Corps (USMC) ordered that all Marines and civilian employees receive social media training. The Commandant of the USMC ordered that the training be conducted in person, scenario-based, and designed to be a conversation between trainers, leaders, and Marines. According to the new policy, the training is conducted annually and reinforced regularly by leaders at every level (Schogol, 2017).

As an organizational leader or manager, it is incumbent on you to enforce a legally defensible Internet and social media policy. Every employee has the right to free speech and the right to speak on matters of public importance related to their employment. If you are an employee that engages in Internet and social media use, it is important that you know what speech is protected and prohibited by your organization.

References

42 U.S.C. § 1983

Bland v. Roberts, No. 12-1671 (4th Cir. 2013)

Garcetti v. Ceballos, 547 U.S. 410 (2006)

Connick v. Myers, 461 U.S. 138 (1983)

Feis, Aaron (2017, January 19). National guard members reportedly removed from inauguration duty over alleged ties. https://nypost.com/2021/01/19/national-guard-members-pulled-           from-inauguration-over-militia-ties-report

Gardner, G (2018, January 31). General order: Code of Conduct. https://www.howardcountymd.

gov/LinkClick.aspx?fileticket=Rcj8ANwrlDQ%3d&portalid=0 Click.aspx (howardcountymd.gov)

Grutzmacher v. Howard Cty., 851 F.3d 332 (4th Cir.), cert. denied sub nom. Buker v. Howard     Cty., Md., 138 S. Ct. 171, 199 L. Ed. 2d 42 (2017)

International Association for Chief of Police (IACP) (2019, May). Concepts and issues: Social     media. https://www.theiacp.org/resources/policy-center-resource/social-media

Hudson, D.L. (2017, May 1) Public employees, private sector speech: 1^st amendment does not     always protect government workers. American Bar Association Journal. https://www.      abajournal.com /magazine/article/public_employees_private_speech

National Conference of State Legislature (2020, July 1). Access to social media usernames and

passwords. https://www.ncsl.org/research/telecommunications-and-information-technology/employer-access-to-social-media-passwords-2013.aspx

Nott, L & Moniz, M (2017, April 24). Government employees & first amendment overview.             https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-           speech-2/free-speech-and-government-employees-overview/

Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563, (1968)

Plain View Project (n.d.). https://www.plainviewproject.org/

Schenck v. United States, 249 U.S. 47 (1919)

Schogol, J. (2017, April 4). Marine social media training to be in person, not on MarineNet.

https://www.marinecorpstimes.com/news/your-marine-corps/2017/04/14/marine-social-media-training-to-be-in-person-not-on-marinenet/

Shepherd v. McGee et al. No. 3:2012cv02218 – Document 43 (D. Or. 2013)

Stanislas, P. (Ed.) (2015). Internationals perspective on police education and training. Oxford,   UK: Routledge

U.S. Const. amend. I

Way, Katie (2020, June 11). Cops are getting fired over their racist social media posts.

https://www.vice .com/en/article/dyz7yz/cops-getting-fired-for-racist-social-media-posts

Dr. Daniel Rousseau

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Dr. Dan Rousseau is an Adjunct Professor, Division of Criminal Justice, College of Safety and Emergency Services, Columbia Southern University. Dr. Rousseau has over thirty years of military and law enforcement operational and training experience. He is a retired Supervisory Special Agent of the U.S. Drug Enforcement Administration (DEA) and a retired officer of the United States Army Reserve. Dr. Rousseau’s research interests include emerging issues in the criminal justice system. He has earned a Bachelor’s in Criminal Justice from the University of Central Florida, a Master’s in Education from Central Michigan University, and a Doctorate in Criminal Justice from California University of Pennsylvania.

• Social Media and the Police
• Looking Out for Your Buddy, Teammate, or Partner.

Areas: Criminal Justice
Categories: Criminal Justice
Tagged: government employee, policy, Social media