Social Media and the Progressive Limitations on Public Sector Employees' First Amendment Right to Free Speech.

AuthorHearing, Gregory A.

There are moments in history that mark advancements in communication from which humans will never return. Such moments include the invention of the printing press, the telegraph, the telephone, the radio, the internet, email, and social media. Times were much simpler before social media. Even in the age of email, an employee could express his or her opinions, even unsavory ones, to several people without attracting the attention or scorn of the masses and without the media proliferating the speech. Social media has proven to be a complete game changer. Employees who once failed to manifest an audience of two can watch as their post goes viral around the country and even the world. Even more worrisome is the fact that the power of a social media post is gauged by its shares and views, which are largely obtained based on the content of the post. The more outrageous the post, especially that of a government employee, the greater the likelihood of the post going viral. This has placed government employees in a precarious position as speech that may have once been considered protected under the First Amendment was considered as such because the speech was not made in a public forum and shared with only a few individuals at the most.

A common misconception among most U.S. citizens and many privatesector employees is that the First Amendment applies to all speech. Indeed, not only is the First Amendment's free speech protection limited by requiring government action, such protection is further constricted by years of appellate and U.S. Supreme Court authority. This authority has chipped away at the definition of protected free speech in an unsurprising way by excluding speech that contains the following: true threats; fighting words; calls to illegal action; obscenity; child pornography; defamation; perjury; plagiarism; solicitation to commit a crime; and blackmail.

In the public-sector employment setting, the U.S. Supreme Court has further limited the protection afforded public-sector employees through four landmark decisions that have resulted in a four-part analysis for courts to utilize in order to determine whether a public employee's speech is protected by the First Amendment.

In Pickering v. Board of Education, 391 U.S. 563, 568 (1968), the U.S. Supreme Court established that, when determining whether a public employee's speech is protected by the First Amendment, courts should consider the "balance between the interest of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [s]tate, as an employer, in promoting the efficiency of the public service it performs through its employees." Pickering, an Illinois school teacher, sent a letter to the local newspaper criticizing the board's attempts to increase educational funding and the use of such funds that ultimately led to his termination. (1) With respect to the foregoing balancing test, the Court found that Pickering's complaints regarding school funding were a matter of public concern, and that the contents of Pickering's letter, although critical of the board, could not interfere with his daily work as a teacher or the functioning of his distant relationship to the board and superintendent. (2)

The U.S. Supreme Court's decision in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), provides the fourth step to the four-part analysis. The Court concluded that an employee must show causation between the speech and the adverse employment action and, if the employee makes this showing, the public employer must...

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