A Manager’s Guide to Free Speech and Social Media in the Public Workplace: An Analysis of the Lower Courts’ Recent Application of Pickering

• Author: Adam M. Brewer
• DOI: 10.1177/0091026020954507
• Date: 01 September 2021
• Published date: 01 September 2021
• Subject Matter: Articles

https://doi.org/10.1177/0091026020954507

Public Personnel Management

2021, Vol. 50(3) 430 –457

© The Author(s) 2020

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/0091026020954507

journals.sagepub.com/home/ppm

Article

A Manager’s Guide to

Free Speech and Social

Media in the Public

Workplace: An Analysis

of the Lower Courts’

Recent Application of

Pickering

Adam M. Brewer1

Abstract

Public organizations are experiencing a burgeoning of workplace challenges

involving employee use of social media. Comments, images, or videos ranging

from racist remarks, to calls to violence, simple criticism of one’s organization,

to full on whistle blowing significantly challenge public organizations’ policies for

addressing speech that creates discord in the workplace. With the blurring of

lines between personal and professional lives, these challenges create uncertainty

for public organizations regarding how to maintain the efficient operation of

the workplace, deal with the social and political fallout of such instances, and

manage organizational liability. This article performs content analysis on 33 federal

lower court opinions involving speech/social media workplace issues. The study

analyzes the manner in which the lower courts apply free speech precedent on

contemporary workplace speech cases. The findings suggest that patterns emerge

from the opinions providing key insights for public managers regarding how to

better manage these complex issues.

Keywords

public employee, free speech, social media, public workplace, matter of public concern

1University of Montana, Missoula, MT, USA

Corresponding Author:

Adam M. Brewer, Assistant Professor, University of Montana, 32 Campus Drive, Missoula, MT 59812, USA.

Email: adam.brewer@umontana.edu

954507PPMXXX10.1177/0091026020954507Public Personnel ManagementBrewer

research-article2020

Brewer 431

Introduction

Almost daily, news stories are published describing employee social media miscon-

duct. In 2020, a Weber State University professor, Scott Senjo, was placed on leave

after posting a series of offensive tweets in the aftermath of the death of George Floyd.

In response to a news reporter who was punched in the face multiple times by a police

officer during protests and tweeted about it, Senjo tweeted in response “Excellent. If I

was the cop, you wouldn’t be able to tweet.” In response to protesters vandalizing a

CNN building in Altlanta, GA, Senjo tweeted “Nothing about this makes me happy

but there’s this tiny sense of rightness in the burning of the CNN headquarters.” And

finally, in response to a New York City police vehicle that plowed into a crowd of

protesters, Senjo remarked, “That’s not how I would have driven the car into the

crowd” (Cortez, 2020, para. 7–10). Senjo was later compelled to resign (Klopfenstein,

2020). In 2019, a public school teacher in Texas was fired for a twitter rant directed to

President Donald Trump regarding illegal immigrant students where the teacher

tweeted that her school “has been taken over by them” (O’Kane, 2019, para. 3). In

2018, Randa Jarrar, a public university professor tweeted that the former first lady

Barbara Bush “ . . . was a generous and smart and amazing racist who, along with her

husband, raised a war criminal” noting she was “happy that the witch is dead” (Flaherty,

2018, para. 6). Another public school teacher was fired after a video surfaced on

YouTube of an art project where the teacher used his buttocks and other body parts to

paint on a canvas (Carter et al., 2008). Many other cases go unreported by the news

media or are solved internally between employee and the organization.

The following cases represent a number of issues in public human resource man-

agement including discipline, internal policy/procedures, and importantly, the First

Amendment rights of the public employee. The modes for addressing and providing

discipline vary drastically from one public agency to the next and are further compli-

cated by seemingly contradictory guidance from the lower courts in cases where

employment decisions are challenged by employees in the courts. Social media in the

public workplace is changing rapidly; Jacobson and Tufts (2013) note that “this new

medium does not change the nature of employees’ rights, conduct, or expectation, but

it does change the medium, the reach, the speed, and the permanency of their actions”

(p. 85).

Over the last decade, with the creation of various social media venues and the pro-

liferation of their use by millions throughout the world, the literature on the effects of

social media in law (Papandrea, 2012; Poore, 2013) and public administration (Picazo-

Vela et al., 2012; Tufts et al., 2015) has increasingly grown more robust. As noted by

McBeth et al. (2019), “Social media is legally complex and requires its own article”

(p. 3). Informed by Rosenbloom (1983), this article attempts to analyze and make

sense of the legal precedent established thus far by the lower courts. Rosenbloom’s

(1983) legal approach in public administration in relation to public employees notes

that the law provides insight as to their authority, the expectations of the governing

body, and establishes the rights of the individual and of the group. However, the goal

of this article is to not simply review the recent case precedent alone. Public managers