First Amendment Law

Employee Free Speech

Navigating potential legal risks on social media

By Anna Mackin

Group of People Using Laptops and Smartphones

In this world of Twitter trolls, YouTube celebrities, and Instagram models, social media has become perhaps the most important platform for individual speech. It’s unsurprising, then, that an increasing number of clients seek advice on the potential legal risks of taking employment action in response to employee speech on social media.

Any discussion of individual speech calls to mind the First Amendment. Despite the public’s relative familiarity with the First Amendment, it is often overlooked that the Constitution only protects citizens from the government, but not from private parties. Government employers, then, arelimited by the First Amendment, while private employers are not.

Nevertheless, federal and state employment laws provide some protections for private employees, and these protections can extend to certain expressive activity. These include, for example, laws prohibiting discrimination and harassment and laws protecting workers’ rights to unionize (or not). So, to the extent employees engage in these protected activities through speech, that speech is protected.

Thus, the threshold inquiry is whether your client is a public or private employer.

Public Employers
While the First Amendment1 binds both state2 and federal governments, its protective reach does not extend to all government employee speech. Instead, government employers can limit employee speech when necessary to effectively and efficiently carry out their public functions.

The Supreme Court established the test for whether government employee speech is subject to First Amendment protection in Pickering v. Board of Education.3 The “Pickering balancing test” first asks “whether the public employee spoke as a citizen on a matter of public concern.”4 Unless this first prong is satisfied, “the employee has no First Amendment cause of action based on the employer’s reaction to the speech.”5

But if the employee demonstrates that they were speaking as a citizen on a matter of public concern, then the burden shifts to the governmental employer to present “an adequate justification for treating the employee differently from any other member of the general public.”6 Public employee speech as a citizen on a matter of public concern “may be restricted only if ‘the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees’ outweighs ‘the interests of the [employee], as a citizen, in commenting upon matters of public concern.’”7

The court’s “precedent in the public-employee context therefore establishes two main principles: First, although government employees do not lose their constitutional rights when they accept their positions, those rights must be balanced against the realities of the employment context. Second, in striking the appropriate balance,” courts “consider the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer.”8

The court explored this standard in Garcetti v. Ceballos, where a deputy district attorney wrote a memo attacking the truth of an affidavit that his office used in a prosecution and claimed that he suffered adverse employment action as a result. Applying the first prong of the Pickering balancing test, Garcetti held that the deputy DA’s critical memorandum was not entitled to First Amendment protection.

Ceballos was, the court reasoned, speaking as an assistant DA when he criticized the affidavit, and not as a citizen. Having made this determination, the court found it immaterial whether the veracity of the affidavit was a matter of public concern. The court acknowledged that government “employees retain the prospect of constitutional protection for their contributions to the civic discourse. This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit.”9 In other words, government “employee speech is unprotected if it is not on a matter of public concern (or is pursuant to an employee’s job duties)[.]”10

Application of the Pickering balancing test to online speech has not, to date, added many wrinkles to the analysis. At least one U.S. 5th Circuit Court of Appeals case bodes well for government employers (or, at the very least, government employers engaged in law enforcement). In Graziosi v. City of Greenville, a sergeant was terminated after she criticized her superior officer on the mayor’s public Facebook page for not sending a representative to a fallen officer’s funeral.11

The 5th Circuit balanced the city’s substantial interests in maintaining discipline and preventing insubordination within its police department against the sergeant’s interest in airing her particular criticism on Facebook, and held that the First Amendment did not protect the officer’s speech. It noted that the topic was of minimal public concern, but instead arose in the context of an employee’s disagreement with her public employer’s policy choice.

The court reasoned that this represented a comparatively minimal interest in speaking on a matter of public concern. Graziosi did, however, emphasize the need for close working relationships and harmony among law enforcement officers. This principle might be more limited in a context where the government employer’s public function does not involve immediate danger to life and limb.

State law can impose additional protections on public employee speech. In Texas, the Whistleblower Act12 prohibits adverse employment action against state and local government employees who make a good faith report of a violation of law by their employer or a coworker to an appropriate law enforcement authority.

Prevailing on a claim under Texas’ Whistleblower Act requires a considerable showing. Indeed, it is insufficient for a plaintiff to make a good faith report of a violation of law. To be protected under the act, the employee must also have a good faith belief that the entity reported to has authority to enforce the law allegedly being violated, or to investigate or prosecute suspected criminal acts.13

In short, while individuals have a constitutional right to speak, they have no constitutional right to public employment.

Private Employers
If your client is a private employer, the First Amendment does not restrict its behavior.15 There are, however, several laws that prohibit adverse employment action by private employers in connection with an employee’s expressive conduct. To be clear—these prohibitions do not arise out of the First Amendment. They simply happen to protect speech.16

Chief among these is the National Labor Relations Act,17 which protects employee discussions about the terms and conditions of their employment—for example, wages,18 hours, and benefits.19 Importantly, the act only prevents employers from interfering with this type of employee speech when it takes place “in concert with” other employees.20 An individual’s complaints about his or her own wages, particular hours, or specific benefit package are not protected, as these are not made “in concert with” other employees.21 It is also important to note that government employers are exempt from the National Labor Relations Board’s jurisdiction.22

Communications protected under the National Labor Relations Act are just as protected when they take place on social media as they are in any other context. The NLRB has been relatively permissive in defining concerted activity on Facebook—even “liking” another employee’s post about common working conditions is considered acting “in concert with” another employee.23

All employers—public and private—also have a duty to take reasonable steps to prevent harassment, discrimination, and retaliation. Thus, employee social media posts complaining about these activities are generally protected.24 Similarly, once an employer is aware of potential harassment, discrimination, or retaliation by one employee against another, the employer has a duty under Title VII of the Civil Rights Act to take reasonable steps to investigate and mitigate that behavior. This applies equally in the online context. Thus, where one employee engages in harassing or discriminatory speech against another—including online—the employer must investigate and remediate as necessary.

Both public and private employers can minimize litigation risk by implementing a specific, carefully crafted social media policy, which can specify limitations on employee use of company time and resources (including equipment) for use of social media. The policy can also limit discussion of the employer, so long as those limits do not proscribe activity that is protected under other laws. Public employers should be particularly cautious in this respect, and should ensure that any such limitations are necessary for the employer’s efficient provision of public services. TBJ

Notes

1. U.S. Const. amend. I.

2. U.S. Const. amend. XIV.

3. Pickering v. Board of Education, 391 U.S. 563 (1968).

4. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citing Pickering, 391 U.S. at 568; Connick v. Myers, 461 U.S. 138 (1983)).

5. Id.

6. Id.

7. Harris v. Quinn, 134 S. Ct. 2618, 2642 (2014) (citation omitted).

8. Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 599-600 (2008).

9. Garcetti at 422.

10. Harris v. Quinn, 134 S. Ct. at 2642.

11. Graziosi v. City of Greenville, 775 F.3d 731, 733, 741 (5th Cir. 2015).

12. Tex. Gov’t Code § 554.002(a).

13. Id. § 554.002(b)(1); University of Texas Southwestern Medical Center at Dallas v. Gentilello, 398 S.W.3d 680, 682 (Tex. 2013).

14. E.g., Bradley v. Lockheed Martin Corp., 275 F. App’x. 396, 397 (5th Cir. 2008) (First Amendment claims cannot be maintained against private employers.).

15. As such, this is not an exhaustive list of all expressive conduct (on social media, or elsewhere) for which private employers cannot take adverse employment action.

16. 29 U.S.C. §§ 151-169.

17. NLRB v. Brookshire Grocery Co., 919 F.2d 359, 362 (5th Cir. 1990).

18. See 29 U.S.C. § 157.

19. Id.; see also Hispanics United of Buffalo, Inc., 2012 N.L.R.B. LEXIS 852 (2012).

20. Meyers Industries Inc., 268 N.L.R.B. 493, 505 (1984).

21. 29 U.S.C. § 152(2)-(3).

22. Three D, LLC d/b/a Triple Play, 361 N.L.R.B. No. 31 (2014).

23. E.g., 42 U.S.C. § 2000e.



Anna MackinANNA MACKIN
is an assistant attorney general in the General Litigation Division of the Texas Office of the Attorney General. Her practice focuses on constitutional and civil rights litigation, with an emphasis on election law and the First Amendment. Mackin is a graduate of the University of Texas at Austin and Notre Dame Law School.

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