The Social Media Effect: Dealing with Employee Speech in the New Public Square

CATEGORY: Authored Articles
CLIENT TYPE: Public Employers
AUTHOR: Mark Meyerhoff
PUBLICATION: PSHRA's Public Eye publication
DATE: May 11, 2023

This article originally appeared in PSHRA’s Public Eye publication

Social media has changed the workplace, and its changed the way public sector employers approach First Amendment issues in a number of ways. For example, social media allows
employees to instantaneously share their thoughts and beliefs with hundreds or thousands of people.

As the Supreme Court has stated in recent years, social media has become the new “public square” and the main place where people receive news and information. This means that public employers have to plan for dealing with speech that has potentially been viewed by many people, which can exponentially increase the impact the speech has on the agency.

In addition, social media has increased the scrutiny on public agencies and public employee speech. There are individuals that monitor public employee speech on publicly accessible social media sites and report on speech that appears to be offensive, inflammatory or insensitive. Social media has resulted in public agencies dealing with free speech issues more often, due to the likelihood that somebody will report public employee speech that appears to be problematic.

A Matter of Public Concern

Hernandez v. City of Phoenix is a 2022 9th Circuit decision that illustrates the effect of social media on the public sector workplace. Hernandez, a police officer for the City of Phoenix, while off-duty, posted various news articles and memes created by others to his personal social media account.

Four of the posts expressed derogatory viewpoints of Muslims and the Islamic religion, and addressed issues such as cultural assimilation, media coverage of crimes committed by Muslims and government spending priorities. More than five years after Hernandez posted this content, a watchdog group published a collection of posts from various officers from the Phoenix Police Department, including the posts from Hernandez.

The Phoenix Police Department conducted an investigation and concluded that the posts violated the department’s social media policy, which, among other things, prohibited speech that undermined respect or public confidence, caused embarrassment or discredited the department.

Hernandez and his union filed a lawsuit against the City of Phoenix for, among other things, First Amendment retaliation. The trial court dismissed Hernandez’s First Amendment claim, finding that none of his posts addressed “a matter of public concern” and were not protected by the First Amendment.

The 9th Circuit disagreed, holding that the posts did address matters of public concern, meaning that the posts were of political, social or other concern to the community, despite being inflammatory or controversial. The 9th Circuit reinstated the case and returned it to
the trial court.

The impact of this portion of the Hernandez holding is that public agencies must not automatically assume public employee speech that targets a particular group, or that includes inflammatory or offensive content, is not protected.

Rather, public agencies must carefully consider whether social media speech has any political, social or other value to the community, regardless of how crude or harsh the speech may be. If the social media speech may relate to a matter of public concern, and assuming the speech is not part of the employee’s official duties, public agencies must be able to show that the speech had a negative impact on the agency that outweighs the employee’s First Amendment right.

For example, an agency should consider whether there is evidence that the speech impacted co-worker relations, interfered with the employee’s ability to do their job, or otherwise interfered with the agency’s ability to effectively carry out its mission.

In addition, not all speech is entitled to the same level of First Amendment protection. Speech that is inflammatory or offensive and only “touches” on a matter of public concern is not entitled to the same level of First Amendment protection as speech that exposes wrongdoing or corruption. Accordingly, an agency needs less evidence of disruption to overcome an employee’s First Amendment right to speech that only “touches” on a matter of public concern.

The Importance of Social Media Policies

The other large impact of the Hernandez case relates to social media policies. Hernandez challenged the Police Department’s social media policy as being overbroad and prohibiting speech that is protected by the First Amendment. Though the 9th Circuit largely disagreed with Hernandez, it did identify portions of the department’s social media policy that could be overbroad and sent the issue back to the trial court.

Specifically, the 9th Circuit pointed to a portion of the social media policy that prohibited employees from “using social media in a manner that would cause embarrassment to or discredit the Department in any way.” The 9th Circuit held that this clause could potentially restrict speech protected by the First Amendment and stated that an agency cannot restrict speech merely because the agency may find the speech embarrassing or discrediting.

Rather, the agency would also need to show the speech disrupted the agency or impacted the agency’s ability to run effectively. The 9th Circuit also questioned another portion of the department’s social media policy that prohibited employees from divulging “information gained while in the performance of their official duties.” While the 9th Circuit stated the department likely has an interest in prohibiting the disclosure of confidential information, the challenged policy section could silence speech that deserves First Amendment protection.

A legally compliant social media policy should include language stating that social media speech that undermines, interferes with or is detrimental to the agency’s goals and mission and its relationship with the public is prohibited. In addition, a social media policy can restrict speech that undermines respect or public confidence in the agency. However, policies that simply restrict speech that generally embarrasses or discredits an agency may be overbroad and subject to challenge.

Social media polices can also have provisions that prohibit employees from engaging in other conduct such as (1) revealing the name of the agency on a website with sexually suggestive, violent or otherwise offensive content; (2) using social media sites or blogs for unlawful  purposes; (3) disclosing confidential information; or (4) disclosing the name of the agency otherwise identifying themselves as employees of the agency on personal or social media websites as opposed to professional networking websites.

The balance between an employee’s First Amendment rights and an agency’s right to discipline an employee or restrict an employee’s speech is a difficult analysis. Agencies must be mindful that social media speech may be protected if it can be reasonably argued that the speech relates to a matter of public concern. Assuming the speech is being made by the employee as a private citizen (which would be true in most cases), then social media speech made by an employee is usually protected, even if the speech is inflammatory or offensive.

The agency then has to show a corresponding degree of disruption to overcome that First Amendment right. Agencies that need to show disruption should consider conducting investigations to determine whether the speech has impacted co-workers, supervisors or members of the public. The investigation can also determine whether the speech impacts an employee’s ability to carry out their job duties. In addition, speech that is widely distributed to individuals who know the speaker is a public employee will usually increase the chance the speech has caused disruption. The key for an agency is to carefully analyze the speech and gather the evidence showing impact before it makes any disciplinary decisions with regard to the employee.