Professional Service Agreement

Interests of Employer Outweighed Public Interest Facebook posts by Employee on Gun Control and Social Media Policy

March 27, 2017

Although at least some of Employee's Facebook activity touched on issues of public concern, including posts over gun control legislation and Employer’s social media guidelines, Employer’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in the Facebook activity. The U.S. Court of Appeals for the Fourth Circuit ruled against Employee's First Amendment claims.

In response to an incident in which an employee posted to Facebook a photograph of a lynching with an inflammatory caption, Employer drafted a new social media policy. Among other things, the guidelines prohibited personnel "from posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or positions of [Employer] or officials acting on behalf of [Employer]." Employer also issued a code of conduct "aimed at ensuring [employees] maintain the highest level of integrity and ethical conduct both on and off duty."

Not long after, Employee, after watching news coverage of a gun control debate, posted on his Facebook page while on duty: "My aide had an outstanding idea . . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . ." Twenty minutes later, a non-employee replied "But . . . . was it an ‘assault liberal’? Gotta pick a fat one, those are the ‘high capacity’ ones. Oh . . . pick a black one, those are more ‘scary’. Sorry had to perfect on a cool idea!" Employee "liked" the comment.

After Employee's supervisor told Employee to remove anything inconsistent with Employer’s social media policy, Employee deleted the posts but posted the following comment to his Facebook wall: "To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirely in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any of them with you. If you’re not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On."

The next day, another employee emailed the a member of management for Employer a screenshot of Employee’s Facebook posts and noted the racial overtones of the comments, which, he asserted, Employee had endorsed. Three weeks later, during an investigation into Employee’s Facebook activity, a non-employee posted to his own Facebook page a picture of an elderly woman with her middle finger raised with the following caption: "THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT IT’S MINE[.] I’LL POST WHATEVER THE F** I WANT[.]" Above the picture, he wrote, "for you [Employee's supervisor]." Employee, who was a Facebook friend of the non-employee, "liked" the photograph.

Subsequently terminated for violating Employer’s code of conduct and social media policy, Employee sued, asserting that Employer retaliated against him in violation of the First Amendment.

The court noted that according to an expert report submitted by Employee, the discussion about "liberals" and "assault liberals" was a commentary on gun control legislation using "a lexicon that is extremely common in contemporary American gun culture." Thus, the post and comment implicated a matter of public concern. Likewise, Employee’s post describing Employer’s social media guidelines and expressing concern that they infringed on his First Amendment rights also addressed a matter of public concern.

But other Facebook activity prompting his termination did not implicate matters of public concern, said the court, pointing to his "like" of the image of the elderly woman raising her middle finger, which amounted to no more than an unprotected employee grievance.

Turning to whether Employee’s interest in speaking on matters of public concern outweighed Employer’s interest in providing effective and efficient services, the court pointed out that it has previously recognized that "[a] social media platform amplifies the distribution of the speaker’s message—which favors the employee’s free speech interests—but also increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency."

Finding that Employer’s interest outweighed Employee’s, the court observed that his Facebook activity interfered with and impaired Employer operations and discipline, as well as working relationships.