In my previous post, I stated that the First Amendment does not prevent employers from restricting their employees’ right to free speech. Although this statement is generally true, it requires some qualification with regard to public employees. In the classic Pickering v. Board of Education, the Supreme Court created a two-prong test to determine whether a public employee’s speech is constitutionally protected. The first prong established that in order to receive First Amendment protections, the employee must speak “as a citizen on matters of public concern” in a context outside the employment relationship. The second prong balanced the free speech interests of the employee with the employer’s interests in “promoting the efficiency of the public services it performs through its employees.” If the disruption caused by the speech outweighs its value, it may be restricted.
The Ninth Circuit appears to have been the first to apply the Pickering test to a case involving employee speech made via social media. In Richerson v. Beckon, a public school teacher brought a Section 1983 suit alleging that she was demoted for posting demeaning (albeit protected) comments about colleagues and supervisors on her personal blog. The trial court granted summary judgment in favor of the school district. The Ninth Circuit affirmed, finding that even if the teacher’s allegations were true, the second prong of the Pickering test would justify the school district’s response because the “vituperative” nature of the comments had a “deleterious” effect on the workplace.
Several other federal courts have addressed social media cases involving public employees. In Mattingly v. Milligan, a county employee brought a First Amendment claim against a newly elected county clerk who had terminated several employees during his transition into office. The employee made two posts on Facebook, one voicing her general distress over the clerk’s actions and another expressing her sympathy for the terminated employees. She was terminated after her comments drew attention from the local media and prompted several of the clerk’s constituents to call him at home and express their disapproval. In denying the defendant’s motion for summary judgment, the court applied the Pickering test and found that the public outcry proved that the employee’s posts touched on a matter of public concern and that the clerk failed to show any evidence that the posts disrupted the efficiency of his office.
Conversely, in Gresham v. City of Atlanta, the court granted summary judgment in favor of the city when a police officer brought a First Amendment retaliation claim. The officer was denied promotion in light of a Facebook comment in which she described the details of an investigation and accused a fellow officer of wrongdoing. The court found that the officer’s post constituted a private grievance, but even if it had been a comment on a matter of public concern, the city’s interest in providing efficient police services outweighed the police officer’s interest in disclosing details of an investigation.
While these cases offer some basic guidance for public employers and employees, they did not attract even a fraction of the attention garnered by the highly publicized Bland v. Roberts case. In Bland, Sheriff B.J. Roberts of Hampton, Virginia was sued by several deputies and civilian employees who Roberts had terminated shortly after his reelection. One of the deputies, Daniel Ray Carter, Jr., raised a First Amendment claim alleging that he was terminated for “liking” the Facebook page of Roberts’ election opponent. The district court granted summary judgment in favor of Roberts, finding that Carter’s allegation was not grounds for a First Amendment claim because “liking” a Facebook page is not an act of speech for First Amendment purposes. When the case came before the Fourth Circuit, Facebook, Inc. itself filed an amicus brief urging the court to recognize “likes” as statements that qualify for First Amendment protection. To the delight of social media and civil liberties advocates, the Fourth Circuit accepted Facebook’s argument, holding that “[o]n the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.” The court further held that a “like” is a form of symbolic expression because the thumbs up sign implies message of support. “[I]t is the internet equivalent of displaying a political sign in one’s front yard.”
Despite this obvious win for Facebook, the court also held that Sheriff Roberts was entitled to qualified immunity for the First Amendment claims brought against him in his individual capacity. In other words, Daniel Ray Carter, Jr.’s claim suffered a significant blow despite earning a broad victory for social media users. Nonetheless, the publicity surrounding Bland indicated early on that the case is important primarily for its broader implications. And, of course, the case’s long-term impact on social media, First Amendment, and public employment jurisprudence remains to be seen. As the Wake Forest Law Review concluded shortly after Bland was released, “perhaps the Court’s holding . . . is simply a confirmation of what the millennials have known all along: that digital “speech” is just as valid as the real thing.”
Posted Feb. 27, 2014