The First Amendment and Governmental Entities
The First Amendment poses a special concern to governmental entities seeking to regulate comments and messages made by both the general public as well as public employees on social media platforms. These entities should identify the governmental interest(s) in support of any limitations the policy imposes on the content of comments or posts conveyed by the general public and public employees. Any restriction placed on the general public and, by extension, public employees’ comments or posts concerning a matter of public concern must be content-neutral. In other words, if political comments in favor of a particular position or candidate are permitted, then comments in opposition of a position or candidate must also be permitted.
In the event a governmental entity begins to delete or remove commentary from its social media sites that have been posted by public employees or citizens, the entity may be exposed to a First Amendment claim if the social media policy is not properly drafted and consistently enforced. Any discipline imposed by a public employer on employees who violate the policy may be at risk for reversal if the policy is not properly constructed or consistently enforced. To mitigate this risk, the governmental entity should clearly and unambiguously establish the interests sought to be advanced by limiting speech that may otherwise be protected under the First Amendment. Only when the stated governmental interests outweigh the public employee’s right to free speech will a court sanction a social media policy’s limitation on protected speech and any action taken against an employee pursuant to the policy.
Valid governmental interests that have been recognized by the courts include promoting efficiency, preventing disruption to employer operations by, for example, interfering with and impairing operations and discipline, and protecting working relationships. Police and Fire Departments have a strong interest in the promotion of camaraderie and efficiency as well as internal harmony and trust. Courts have permitted regulations to protect the department’s reputation in the eyes of the public, as well as to retain the confidence of the public. Courts have accorded substantial weight to a department’s interest in limiting dissension and discord by permitting prohibitions against discriminatory or racially insensitive posts made by employees on their personal social media sites. Courts have found such offensive speech to frustrate the agency’s public safety mission and threaten community trust. The more the employee’s job requires public contact, the greater the state’s interest in firing her for expression that offends her employer. Comments that smack of insubordination or harm the public’s trust that an employee (or department) is able to make fair and impartial decisions may also trigger the employer’s interest in regulating personal use of social media.
A social media policy requires careful legal review prior to adoption, in light of the risks attributed to regulating employee’s off-duty, personal usage of social media. To ensure that an employer is able to quickly and efficiently respond to offensive and improper comments posted on social media sites, and that its actions will withstand judicial scrutiny, the public employer must promulgate a social media policy that contains clear and unambiguous guidance to employees.
Read more about what employers should know when developing a social media policy in Part 1 of this two-part series.
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