The Perils of Punishing Public
Employees for Protected Speech:
Applying Pickering to Posts and Pins
Thursday, May 9, 2013 General Session; 10:45 a.m. – Noon
Jeb E. Brown, Supervising Deputy City Attorney, Riverside
J. Scott Tiedemann, Liebert Cassidy Whitmore
League of California Cities
2013 Spring Conference
Meritage Hotel, Napa
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League of California Cities
2013 Spring Conference
Meritage Hotel, Napa
Perils of
o Punishin
ng Public Employeees for Prottected Speeech:
Applyiing Pickeriing v. Boa
ard of Educcation to P
Posts and Pins
By Jaames Brow
wn, City of Riverside City Attorrney’s Offiice
And
J. Scottt Tiedemaann and Daavid A. Urbban
Liebert Caassidy Whhitmore
for
League off Californiaa Cities 2013 City Atttorneys Sppring Confference
I.
INTROD
DUCTION
Disciplining
D
employees
e
for
f their exprressive activvity has long presented complex issuues of
First Am
mendment law
w for public sector manaagement. In the age of soocial media,, whether thee
platform is Facebook
k, Pinterest, email,
e
or tex
xts, the challlenge to empployers is connstant and
seeminglly, increasing
gly more com
mplex. But learning thee general rulees developedd over decaddes
through case
c
law can
n greatly sim
mplify the anaalysis and alllow manageement to reduuce risk. In the
end, whille the techno
ology may ch
hange, the ru
ules remain tthe same.
This
T paper wiill explore th
he contempo
orary landscaape of publicc employee ffree speech llaw,
with partticular emph
hasis on Firstt Amendmen
nt concerns rregarding em
mployee use of social meedia
and electtronic comm
munications. How does a public agenncy respond when one of its employees
e-mails all
a the other employees
e
in
n her departm
ment complaaining aboutt the office bbreak room, her
superviso
or, and the beverage supplies for em
mployees? Hoow does a police departm
ment responnd
when onee of its officers repeated
dly boasts in a joking man
anner on his F
Facebook paage that he iss
ready and
d willing to abuse arresteees and lie under
u
oath? How does aan agency resspond when an
employeee starts her own
o blog, lin
nked to newss media sourrces, and acccuses her ageency of wastting
public resources?
The
T paper will introduce general prin
nciples of Firrst Amendm
ment law and history, andd then
set forth a detailed diiscussion of the law appllicable to puublic employyees and the legal
requirem
ments agenciees must conssider in decid
ding upon diiscipline. Thhe paper willl then discusss
how thesse requirements apply in the novel co
ontext of soccial media annd electronicc
“Perils of Pun
nishing Public Employees for Prrotected Speech:: Applying Pickeering to Posts and Pins”
League of California
C
Cities 2013
2
City Attornneys Spring Confference
©2013
3 Liebert Cassidy
y Whitmore and
d City of Riversid
de
communications by public employees. The article will conclude with a discussion on the
National Labor Relations Board’s social media jurisprudence in the private sector, and what it
may mean for the public sector, and with a discussion of a new California statute that prohibits
employers from requesting applicant Facebook account and other social media account
information.
II.
FREE SPEECH RIGHTS OF PUBLIC EMPLOYEES
A. The First Amendment
The First Amendment of the United States Constitution states: “Congress shall make no
law abridging the freedom of speech, or of the press.” The First Amendment was written by
James Madison and included in the Constitution in 1791 as part of the Bill of Rights, after the
Constitution had been ratified. By its own terms, the First Amendment applies only to what
"Congress" can or cannot do. It was not until more recently that the First Amendment has been
interpreted to apply to all government organizations in the United States. It applies to state and
local governments through operation of the Fourteenth Amendment Due Process Clause, which
incorporates the free speech protection of the First Amendment.
The California Constitution also has a free speech provision that is differently worded but
often construed by Courts in a similar way. It provides: “Every person may freely speak, write
and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A
law may not restrain or abridge liberty of speech or press.” (Cal. Const., art. I, § 2.) As a
technical matter, in answering a free speech question, one has to check case law under the state
as well as under the federal Constitution. For purposes of public employee free speech claims,
however, California Courts construe the federal and state constitutional protections as having the
same scope. See Kaye v. Board of Trustees of San Diego County Public Law Library, 179 Cal.
App. 4th 48 (2009).
The First Amendment and state constitutions like the California Constitution give persons
in the U.S. vast rights to freedom of expression. The rules governing constitutional free speech
are familiar. The government must meet a high standard for restricting speech in a public forum,
for example a public park or an area of a college campus set aside for expressive activities. Even
in “non-public forums” such as government offices and other areas, restrictions on speech have
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
League of California Cities 2013 City Attorneys Spring Conference
©2013 Liebert Cassidy Whitmore and City of Riverside
to be “reasonable” and “viewpoint-neutral.” Cornelius v. NAACP Legal Defense & Educ. Fund,
473 U.S. 788, 806 (1985). Courts are stringent in applying the First Amendment to political
speech. Although more mundane commercial speech is offered less constitutional protection, the
law still accords it protection that is substantial. Central Hudson Gas & Electric Corp. v. Public
Service Commission of New York, 447 U.S. 557, 566 (1980).
Individuals also have the right not to have the government restrict their speech on the
basis of the speech’s viewpoint. Such restrictions are rarely permitted. See Rosenberger v.
Rector and Visitors of the University of Virginia, 515 U.S. 819, 829 (1995).
Individuals have no constitutional free speech rights to engage in certain types of speech,
and the government is free to prohibit it. Examples of such speech include: true threats,
encouragement to commit imminent illegal action, obscenity, defamation, and “fighting words.”
United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012). But these exceptions are fairly limited.
Much speech is protected, and the government cannot regulate it without meeting judicially
mandated requirements.
B. When Public Employees Can be Disciplined for Speech
For public employees, however, the rights described above are diminished when it comes
to asserting such rights against the government when the government regulates speech in the
capacity of employer. When individuals enter government service as employees, they surrender
many of their First Amendment rights.
Garcetti v. Ceballos, 547 U.S. 410 (2006), is probably the most important recent public
employee free speech case, and it is a good starting point for a discussion of existing law
regarding the regulation of public employee speech. In Garcetti, the Supreme Court explained:
“When a citizen enters government service, the citizen by necessity must accept certain
limitations on his or her freedom.” However, the Supreme Court also recognized that a public
employee keeps the “right . . . to speak as a citizen addressing matters of public concern.”
Garcetti, 547 U.S. at 417-18.
Affording the government more leeway to regulate speech in its capacity as employer
makes practical sense. Otherwise, public employees could argue that they are allowed to say and
do just about anything they want in the workplace since the government would have only the
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
League of California Cities 2013 City Attorneys Spring Conference
©2013 Liebert Cassidy Whitmore and City of Riverside
same ability to regulate their activity as it does the protestor shouting from the top of his lungs at
Speakers’ Corner. One can only imagine a financial analyst trying to put the finishing touches
on a budget report for a city council as her colleague ranted and raved in the office about
wasteful spending. Indeed, as the Supreme Court has said, if government is going to function at
all as an employer, it will need to have the ability to restrict expressive activity just an employer
in the private workplace.
Nevertheless, the Supreme Court has indicated that it does not want public employees, in
going to work for the government, effectively to neutralize themselves as participants in the
marketplace of ideas. Having public employees waive any and all free speech rights when they
enter the government service would not only impair these individuals’ rights as citizens, but
would deprive the public of learning whatever important things these individuals have to say. In
fact, it is these public employees, who actually work for the government, and are intimately
familiar with its operations, who could have some of the most important things to say to the
general public about how the government runs.
Therefore, the U.S. Supreme Court in these public employee free speech cases strikes a
balance. The following is a summary of the test the U.S. Supreme Court has developed for
determining when an employee has a First Amendment claim. First Amendment protection
attaches if:
(1) The speech is a matter of “public concern,”
(2) The employee spoke as a private citizen and not a public employee (i.e.,
speech is not pursuant to “official duties”), and
(3) The employee’s speech interest outweighs the agency’s interest in
efficiency and effectiveness.
See Eng v. Cooley, 552 F.3d 1062, 1070–71 (9th Cir.2009) (summarizing the elements of an
employee free speech claim).
A limited exception exists in the case of policymaking officials. The United States
Supreme Court has created a “policymaker exception,” recognizing that an elected official must
be able to appoint some high-level, personally and politically loyal officials who will help him or
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
League of California Cities 2013 City Attorneys Spring Conference
©2013 Liebert Cassidy Whitmore and City of Riverside
her implement the policies that the public voted for. See Branti v. Finkel (1980) 445 U.S. 507.
The inquiry whether a particular employee is a policymaking official is highly fact-specific.
Hunt v. Orange County (9th Cir. 2012) 672 F.3d 606, 614. Some factors to be considered when
determining whether public employee's job is policymaking position, for purposes of
policymaker exception to general requirement that employee's First Amendment free speech
rights be weighed against employer's interest in promoting efficiency of services it performs, are
whether employee has vague or broad responsibilities, her relative pay, technical competence,
power to control others, authority to speak in the name of policymakers, public perception,
influence on programs, contact with elected officials, and responsiveness to partisan politics and
political leaders. Fazio v. City & County of San Francisco (9th Cir. 1997) 125 F.3d 1328, 1334
fn. 5.
Otherwise, the test articulated in Garcetti v. Ceballos comes into play when a
public employer seeks to discipline an employee for what the employee claims to be the
employee’s protected speech. It could be, for example, that a city employee writes a letter to a
newspaper criticizing city government in a way the city believes is improper. It could also be an
agency safety inspector who prepares a report and claims to have been disciplined as retaliation
for what was said in the report. Another example might be talking on the job about religious
views, or political views, in a way that would violate applicable workplace rules. Courts will
answer all these types of free speech situations using the test described above.
The following discussion addresses each element in detail. Importantly for the employer
weighing its options in the face of an employee’s expressive activity, the technology employed,
whether digital rant or letter penned on paper to the editor, does not factor into the analysis.
1. Public Concern
The first element of the test, “public concern,” is in many ways straightforward. What if
an employee complains repeatedly about such items as not having the right type of coffee in the
break room, having shabby workplace furniture, or having a boss who is sometimes angry and
unprofessional. What if that employee who complains later - for whatever reason – suffers an
adverse employment action, and responds by arguing the action was retaliation for protected
speech in complaining.
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
League of California Cities 2013 City Attorneys Spring Conference
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A Court is going to find that this type of speech - on types of coffee, furniture, etc. – does
not rise to the level of “public concern,” and the employee will not be able to use the right to free
speech as a basis for a retaliation claim. The U.S. Supreme Court decisions emphasize that only
matters of significant importance to the public will serve as the predicate for a public employee
free speech claim.
Courts use the following considerations in determining “public concern”:
-
Whether the employee’s speech relates to a matter of political, social, or other
similar concern to the community,
-
The content, form, and context of the speech,
-
Whether the employee sought to inform the public,
-
Whether the employee sought to shed light on wrongdoing, and
-
Whether the employee spoke simply about a personal grievance.
See, e.g, Kristofek v. Village of Orland Hills, 2013 WL 932016, at **3-6 (7th Cir. March 11,
2013) (officer who protested being directed to release son of former Mayor of nearby town spoke
on a matter of public concern).
Cases have described that the requisite element of public concern is satisfied by speech
that involves the corruption of public officials. Marable v. Nitchman, 511 F.3d 924, 932 (9th
Cir. 2007), but personnel disputes and personal grievances do not. There is in fact language in
the Garcetti opinion describing that the Supreme Court does not want to “constitutionalize the
employee grievance.” Garcetti, 547 U.S. at 420. Also, “poor interpersonal relationships among
co-workers” generally will not rise to the level of public concern. Desrochers v. City of San
Bernardino, 572 F.3d 703, 711 (9th Cir. 2009).
Indeed, in a very recent case, Ellins v. Sierra Madre (9th Cir. March 22, 2013) Case No.
11-55213, the Ninth Circuit held that a police officer who led a vote of “no confidence” against a
police chief and issued related press releases in his capacity as a union representative engaged in
speech as a private citizen on matters of public concern.
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
League of California Cities 2013 City Attorneys Spring Conference
©2013 Liebert Cassidy Whitmore and City of Riverside
2. Outside “Official Duties”
The “official duties” element of the test is less intuitive. This part of the test requires
Courts to answer the potentially abstract question whether the employee has spoken as a private
citizen or as a public employee.
The U.S. Supreme Court set forth this “official duties” test in the landmark case
described above, Garcetti v. Ceballos, 547 U.S. 410 (2006). There, a deputy District Attorney
responsible for being a calendar deputy believed there were flaws in a search warrant that had
been issued in the City of Los Angeles. He complained to his supervisors, but they rebuffed his
complaint. The deputy DA was later given a different assignment, and he argued that this
transfer was in retaliation for his speaking out concerning the search warrant. Id. at 413-17.
The Supreme Court found that he could assert no First Amendment retaliation claim
because his speech in complaining about the search warrant had been in his capacity as a public
employee, i.e., pursuant to his “official duties.” The key for the Supreme Court was that part of
this prosecutor’s job had in fact been to evaluate whether search warrants were supported by
probable cause, and then report back to his office about what he had found. His speech in this
case was his simply doing what he was paid to do, and therefore the Court found no First
Amendment protection. Garcetti, 547 U.S. at 420-24.
Part of Garcetti’s reasoning considers whether the speech in question “owes its
existence” to the government. This means that if the government is in a sense creating the
speech in the first place, then there really isn’t any “citizen” right to engage in the speech. The
exact words of the Court’s holding are as follows:
“Ceballos wrote his disposition memo because that is part of what he, as a calendar
deputy, was employed to do. . . . Restricting speech that owes its existence to a public
employee’s professional responsibilities does not infringe any liberties the employee
might have enjoyed as a private citizen. It simply reflects the exercise of employer
control over what the employer itself has commissioned or created.”
Garcetti, 547 U.S. at 421.
The Garcetti Court also discussed how job description documents are to be used in the
“official duties” determination. It described that Courts must affirmatively go beyond the job
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description on paper and determine what the employee’s actual duties are in order to answer
whether speech was pursuant to official duties. Garcetti, 547 U.S. at 424-25. Also, according to
the Supreme Court in Garcetti, it is not dispositive whether the employee directed the speech
inside or outside the agency. A public employee who only “expressed his views inside his
office, rather than publicly” is not necessarily deprived of First Amendment protection. See id.
at 420.
Lower courts have developed some general rules for determining whether an employee’s
speech is pursuant to “official duties,” i.e., is speech as a public employee rather than as a private
citizen.
First, many courts have concluded that an employee’s reporting complaints up the “chain
of command” is unprotected because doing so fits within the employee’s official duties. For
example, in Foraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007), state troopers reported to their
supervisors numerous problems at a state police firing range, including malfunctioning of
equipment and elevated metal levels in blood of individuals who used the range. The Third
Circuit held the state troopers had not engaged in protected citizen speech. The Court described
that the controlling fact was that they “were expected, pursuant to their job duties, to report
problems concerning the operations at the range up the chain of command.” Id. at 241; see also
Bivens v. Trent, 591 F.3d 555, 560 (7th Cir. 2010) (applying similar reasoning in police officer
case).
Second, by contrast, speaking outside the chain of command, to elected officials or an
agency independent of the employing agency, very often brings the speech outside the scope of
“official duties.” A primary example is the Ninth Circuit decision in Freitag v. Ayers, 468 F.3d
528 (9th Cir. 2007). There, a female corrections officer filed reports documenting sexual
harassment by prisoners and inaction on the part of her superiors. She wrote letters to the
California Inspector General and to a California state senator. The Ninth Circuit found these
communications protected, reasoning that the officer’s right to communicate “to an elected
public official and to an independent state agency” is one “guaranteed to any citizen in a
democratic society,” and it was “certainly not part of her official tasks to complain to the Senator
or the IG . . . .” Id. at 545.
Third, Courts have often found employee speech to a newspaper or other media
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
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organization to be outside of “official duties.” Again, the inquiry will be fact-specific, but such
speech would rarely be mandated by job duties. See Andrew v. Clark, 561 F.3d 261, 268 (4th
Cir. 2009) (describing that Police Commander’s providing Baltimore Sun with copy of his
internal report critical of the department’s shooting of suspect could constitute protected speech).
That said, if a leak to the media harms the agency’s operations, Courts can find discipline
appropriate. For example, in Dixon v. Kirkpatrick, 553 F.3d 1294 (11th Cir. 2009), the clerk to a
veterinary board leaked to a local veterinarian her fiscal concerns over the board’s investigating
Oklahoma dog fighting rings. The Eleventh Circuit found that the employer could punish this
speech, which had the potential to compromise an ongoing investigation.
Fourth, in the Ninth Circuit there is authority that law enforcement officer’s duties to
report, as part of the job illegal conduct by anyone, even their own agency and own superiors,
means that many types of whistleblowing speech by law enforcement officers will lack First
Amendment protection. See Huppert v. City of Pittsburg, 574 F.3d 696 706-08 (9th Cir. 2009)
(inherent duty on the part of police officers to report wrongdoing made his cooperation with the
FBI and also his testifying before grand jury part of his job duties). The continued validity of
this rule from Huppert is in question, however. The Ninth Circuit sitting en banc just heard oral
argument on March 20, 2013, in Dahlia v. Rodriguez, a case in which the Court has been urged
to overturn Huppert in order to provide broader First Amendment rights to law enforcement
personnel.
3. Balancing Test – Pickering v. Board of Education
The third element of the test for free speech by public employees is the balancing test.
This is famously called the “Pickering” balancing test after the 1968 U.S. Supreme Court case
that introduced it, Pickering v. Board of Education, 391 U.S. 563 (1968).
The balancing test applies if the employee has passed both of the earlier tests, public
concern, and speech outside of official duties. This third test weighs the speech interest of the
employee under the First Amendment with the legitimate interest of the government in
regulating the speech in a way it has chosen to do. In other words, this part of the test asks
whether the employer rule that the employee violated is important enough to justify suppressing
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
League of California Cities 2013 City Attorneys Spring Conference
©2013 Liebert Cassidy Whitmore and City of Riverside
the employee’s speech at issue.
The following are some factors Courts consider:
-
Did the speech impair discipline or control by superiors?
-
Did it disrupt co-worker relations?
-
Did it erode close working relationships premised on loyalty and confidentiality?
-
Did it interfere with speaker’s performance of duties?
-
Did it obstruct routine office operations?
See Hyland v. Wonder, 927 F.2d 1129, 1139 (9th Cir. 1992) (interpreting Pickering).
The facts of Pickering were as follows. A high school teacher sent a letter to a local
newspaper criticizing the ways that the school board and the administration were trying to raise
revenue for the school. The administration basically fired the teacher for sending the letter and
embarrassing the administration. The teacher sued, alleging infringement of his First
Amendment rights. After weighing the facts and circumstances, the U.S. Supreme Court agreed
that the school had infringed the teacher's rights. The Court described: “The problem . . . is to
arrive at a balance between the interests of the teacher, as a citizen, in commenting on matters of
public concern and the interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.”
Important in the Court's reasoning was that the teacher's speech did not impede the
teacher's performance of his daily duties and did not interfere with the regular operation of the
school.
The following are some practical tips if an agency is relying on disruption to support
discipline based on protected speech (as the discussion below makes clear, these apply as much
to today’s world of social media as they did to letters to a newspaper in the 1960’s):
-
Be able to show actual disruption,
-
Obtain declarations from those affected,
-
Keep solid records of public complaints, comments, newspaper articles, etc.,
-
Conduct a thorough and fair investigation,
-
Be able to show some impact to the organization.
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
League of California Cities 2013 City Attorneys Spring Conference
©2013 Liebert Cassidy Whitmore and City of Riverside
III.
FREE SPEECH RIGHTS AND SOCIAL MEDIA, NEW MEDIA, AND THE
INTERNET
A. New Challenges
What if a public school teacher assigned to students with learning disabilities posts on her
Facebook page to a student: “you’re a retard, but I still love you”? What if an NYPD police
officer posts on Facebook that he watches the movie Training Day to brush up on proper police
procedure, and posts: “if you were going to hit a cuffed suspect, at least get your money’s
worth.” Training Day is a film from several years ago in which Denzel Washington plays a
nefariously corrupt veteran police officer charged with a mentoring a rookie.
These are two examples derived from news stories of public employees, in particular a
teacher in the Washington D.C. area and a Police Officer, both of whom faced serious scrutiny as
a result of their social media posts.
Public employers can advance sound reasons for wanting to control employees’
statements that can become public. Crude or offensive comments by public employees can
easily become openly available on the internet and place the public employer in a bad light. In
the case of police officers in particular, inapt statements on social media can potentially impair
the officer’s ability to testify in Court, by providing material for cross-examination. They can
even conceivably surface as evidence in civil litigation, for example in a police brutality case.
On the hand the question then arises of whether the First Amendment safeguards a right
to make these comments in social media. And this brings public agencies back to all of the
considerations discussed above.
B. Is The Test for Discipline Any Different?
From the perspective of the First Amendment, the answer is: no, the test is not really any
different. If a public employee is discharged or disciplined for speech on Facebook, My Space,
Twitter, Pinterest, or other similar forums, then any free speech retaliation claims should be
analyzed under the three-part test discussed earlier: (1) is the employee engaged in speech as a
matter of public concern, (2) is the speech outside of their official duties (it likely is if the
employee is posting in the evening on Facebook or Twitter), and (3) does the employer rule at
issue withstand the Pickering balancing test. Courts have not articulated why different
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
League of California Cities 2013 City Attorneys Spring Conference
©2013 Liebert Cassidy Whitmore and City of Riverside
constitutional standards should apply to public employee speech on social media or the internet
than applies to public employee speech generally.
A key practical way social media has changed workplace speech law, however, is that
whereas employee workplace gripes, gossip, and criticism used to take place in contexts where
what was said would not be recorded, and likely would not even be remembered, now statements
made through social media and the internet constitute permanent records. Moreover, social
media platforms encourage participants to communicate and share information freely – basically,
to make permanent, semi-public statements in a glib, real-time manner. This in turns increases
the chances of persons making permanently recorded statements they would never make “in
writing,” and amplifies potential harm. It certainly increases the number of incidents that come
to the attention of public administrators and which must be analyzed for First Amendment
ramifications.
One other unique issue is that although what the employee says on social media can be
very disruptive to the organization, it may be difficult to pin down a particular rule that the
employee has violated, since their conduct takes place outside of the work environment.
Typically, these types of statements are made on home computers after hours, and are not
intended to be viewed by the public.
Several recent cases provide some examples of how First Amendment law has applied to
public employee speech on social media:
Shaver v. Davie County Public Schools, 2008 WL 943035 (M.D.N.C. 2008).
In this case, a school district terminated a bus driver after district officials discovered the
MySpace page he designed with his wife. The page revealed that the employee practiced the
Wiccan religion and contained several phrases that apparently indicated that his wife was
bisexual. The district fired him based on the premise that the web page damaged his position to
be a role model at school. The employee sued under the First Amendment claiming he was
terminated in violation of his free speech rights. Ultimately, the court ruled that the First
Amendment did not protect his speech because it was not on a “matter of public concern.”
Spanierman v. Hughes, 576 F. Supp. 2d 292 (2008).
A school district decided not to renew a teacher’s contract after the district determined
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
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©2013 Liebert Cassidy Whitmore and City of Riverside
that he had engaged in inappropriate conduct via his MySpace web page. The teacher created
pages under the name “Mr. Spiderman” and “Apollo68” that displayed pictures of nude men, and
contained comments to other users, blogs, poetry and other pictures. The teacher admittedly
used the web pages to communicate with district students about non-school related topics. In
addition, the pages displayed the profile pictures of students the teacher had accepted as
“friends” to his pages. The teacher brought suit against the district, alleging a First Amendment
retaliation claim. He alleged that the district chose not to renew his contract because he
exercised his freedom of speech and freedom of association rights. The court ruled for the
district, determining that the only item on his web pages on a matter of public concern was a
poem about the Iraq War, and there was no indication the poem played any part in the decision
not to renew his contract.
Bland v. Roberts, 2012 WL 1428198 (E.D. Va. 2012).
This 2012 case involving Facebook gained enormous attention in legal circles. In this
U.S. District Court decision from Virginia, the Court found that a public employee’s mere
pressing of “Like” for a Facebook post did not constitute expression protected by the First
Amendment. The Court considered the case of a Hampton, Virginia sheriff who allegedly fired a
number of employees for conduct that included “liking” the Facebook page of the sheriff’s
political opponent. The Court ruled that the employees could not predicate a free speech
retaliation claim on the simple act of “liking” the page. The Court reasoned: “It is the Court's
conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional
protection. In cases where courts have found that constitutional speech protections extended to
Facebook posts, actual statements existed within the record. . . . [¶] No such statements exist in
this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive
statement that has previously warranted constitutional protection. The Court will not attempt to
infer the actual content of [a plaintiff’s] posts from one click of a button on [the political
opponent’s] page.” Id. at ** 3-4.
Commentators have criticized the Bland v. Roberts ruling for failing to recognize that
“liking” a post constitutes a mode of expression. It is not clear, however, whether the District
Court was making a broader holding about communication on Facebook, or just refusing to draw
inferences in that particular case. Subsequent decisions will likely clarify the law in this area
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
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©2013 Liebert Cassidy Whitmore and City of Riverside
soon.
Stepping back, there are a few other areas of law to consult in deciding whether to
discipline an employee for social media or other internet speech. One is privacy law, which may
come up when employee speech that is fairly far removed from the actual workplace. How the
employer learned about the speech will be significant – if the employer or an agent of the
employer gained access to the employee’s social media comments through what can be labeled a
subterfuge, or by other intrusive means, the employee can attempt to argue invasion of privacy.
The second area, of course, is traditional labor relations law. In the public employment
context, in which many employees have due process rights in continued employment and the
protection of “for cause” provisions in their collective bargaining agreements, another real issue
may be whether any speech on social media websites is going to be sufficiently egregious to
warrant discipline under “for cause” standards.
IV.
POTENTIAL ADDITIONAL CONSIDERATIONS – THE NATIONAL
LABOR RELATIONS BOARD’S SOCIAL MEDIA JURISPRUDENCE
There is yet another body of law to keep in mind in disciplining employees based on
internet speech, and this is the social media jurisprudence of the National Labor Relations Board
(“NLRB”). By far the body of employment law that has had the most development in the social
media context is the NLRB’s decision and guidance on social media. The NLRB administers the
National Labor Relations Act, which applies to union-management relations and related matters
in the private sector workplace. It does not apply to the public sector, which is governed by state
laws and state agencies, but the NLRB’s decisions have persuasive effect in the public sector
nevertheless.
The upshot of the NLRB’s recent decisions is that a private sector employer cannot
discipline its employees for engaging in speech in social media that qualifies as protected
“concerted activity” of employees “for their mutual aid or protection” under the NLRA. See 29
U.S.C. § 157. This means that if employees complain on social media to each other, for
example, about the workplace conditions, their pay, management, and others matters within the
scope of the NLRA, then the employees’ speech will be considered protected, and the private
sector employer cannot discipline them for it.
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
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Starting in the last several years, NLRB regional offices across the country have begun
issuing complaints in response to unfair labor practice charges by employees who allege they
were terminated for harsh, joking, or critical comments about their employers made on their
Facebook pages or other social media sites. Examples of these cases are Hispanics United of
Buffalo, which involved termination of employees who had posted on Facebook criticisms of
workload and staffing decisions of their employer, and American Medical Response of
Connecticut, Inc., in which an ambulance company employee was terminated for posting on
Facebook vulgar and negative comments about her supervisor.
The Board has not just passed on whether or not employees can be disciplined, but has
struck down private sector workplace policies that appear to infringe worker Section 7 rights. In
Costco Wholesale Corp, on September 7, 2012, the Board held that Costco’s social media policy
prohibiting the posting of any statements that “damage Costco . . . defame any individual or
damage any person’s reputation” violated Section 7 by chilling employees’ speech that could
constitute protected concerted activity under the NLRA. Costco Wholesale Corp., 358 NLRB
No. 106 (2012). Shortly thereafter, the Board decided in a 2-1 decision in Knauz BMW, 358
NLRB No. 164 (2012), that the following “Courtesy Rule” violated Section 7 as well:
Courtesy is the responsibility of every employee. Everyone is expected to be
courteous, polite and friendly to our customers, vendors and suppliers, as well as
to their fellow employees. No one should be disrespectful or use profanity or any
other language which injures the image or reputation of the Dealership.
The majority observed that an employee reading the policy would “reasonably assume” an
employee’s Section 7 statements of protest or criticism to be “disrespectful” or “injur[ious] to the
reputation of the dealership.” Id.
What do these NLRB decisions mean for the public sector? They are not binding on
public sector employers, whose labor relations standards are instead governed by state law, as
described above. In addition, the California laws governing public sector labor relations have
different language on employee rights. Finally, none of these precedents has to do with the First
Amendment necessarily. Indeed, interpersonal issues with management and disputes about
working conditions are often found not to constitute matters of “public concern” at all.
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
League of California Cities 2013 City Attorneys Spring Conference
©2013 Liebert Cassidy Whitmore and City of Riverside
Nevertheless, the Public Employee Relations Board (“PERB”) and California courts
interpreting these statutes often look to federal authorities for general guidance, and it is
worthwhile for public sector employers to be vigilant of the private sector agency rulings and
also to review employment policies that may affect employees’ abilities to criticize their
workplace, complain about pay or workplace safety issues, or complain about the operations of
their agency. There is at least a possibility that PERB will choose to follow the NLRB
precedents in the labor relations context.
V.
SOCIAL MEDIA PASSWORDS – STATUTORY PROTECTIONS
There is also a new statutory issue in California with regard to social media in
employment. Effective January 1, 2013, California Labor Code section 980 (known for its Bill
number “AB 1844”) prohibits employers from requiring or asking prospective and current
employees to disclose social media usernames and passwords. It also prohibits requiring or
requesting employees and students to log onto social media platforms in the presence of the
employer or educational institution. The law defines social media as including videos, still
photographs, blogs, podcasts, instant and text messages, email, online services of accounts or
website profiles or locations. Its language covers popular social media platforms such as
Facebook and MySpace. Governor Brown’s tweet regarding the new law sums up its purpose:
"California pioneered the social media revolution. These laws protect Californians from
unwarranted invasions of their social media accounts."
Labor Code section 980 allows employers to access usernames and passwords under two
circumstances: (1) if the employer reasonably believes it is relevant to an investigation of
employee misconduct, and (2) to disclose a username or password for purposes of accessing an
electronic device that has been issued by the employer.
Under section 980, an employer may not discharge, discipline, threaten to discharge or
discipline, or retaliate against an employee or applicant for refusing to provide their personal
social media information.
There is some debate as to whether Labor Code section 980 applies to the public sector.
The statute does not state that it does, and there is authority under California law that Labor Code
provisions that do not expressly apply to public entities do not apply to them. Johnson v. Arvin–
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
League of California Cities 2013 City Attorneys Spring Conference
©2013 Liebert Cassidy Whitmore and City of Riverside
Edison Water Storage District, 174 Cal. App. 4th 729, 733 (2009) (“[U]nless Labor Code
provisions are specifically made applicable to public employers, they only apply to employers in
the private sector.”). In addition, charter cities and counties may have unique arguments that
under principles of “home rule” section 980 is the type of Labor Code provision that should not
apply to them. See Curcini v. County of Alameda, 164 Cal. App. 4th 629, 643-44 (2008); Dimon
v. County of Los Angeles, 166 Cal. App. 4th 1276, 1283 (2008). However, until such arguments
are resolved by the Courts, the prudent course from the perspective of potential liability under
section 980, is to assume that it applies, and to comply with its restrictions accordingly.
VI.
CONCLUSION
The law of free speech rights of public sector employees is constantly evolving, public
employee utilization of social media is increasing, and First Amendment retaliation litigation is
proliferating. Thus, employers must keep pace, by establishing effective workplace policies and
educating management and employees about the Internet, the pitfalls of social media use, and
employees’ right to free expression, whether shouting from the rooftops or “liking” a Facebook
page.
“Perils of Punishing Public Employees for Protected Speech: Applying Pickering to Posts and Pins”
League of California Cities 2013 City Attorneys Spring Conference
©2013 Liebert Cassidy Whitmore and City of Riverside
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League of California Cities
2013 Spring Conference
Meritage Hotel, Napa