Do Public Employees Have Social Media Free Speech Rights?
Recently, a college professor employed by an elite public institution, the University of Virginia, has been separated from the university following a personal Facebook comment where he compared the Black Lives Matter movement to the Klu Klux Klan.[1] The university quickly distanced itself from the professor by issuing a public statement announcing: “[t]he personal comments made by University of Virginia adjunct lecturer Doug Muir on his personal social media accounts do not in any way represent the viewpoint or values of the University of Virginia Darden School of Business.”[2] In doing so, the university noted its commitment to “promote a multicultural, global and inclusive environment in which each person feels valued.”[3] While it is unclear whether the professor’s “leave of absence” was voluntary or compelled, the incident raises questions with regard to the First Amendment—in particular, the extent to which public employees enjoy the right to free speech.
Legal interpretation of public employee free speech rights has evolved significantly since the nineteenth century. For example, Oliver Wendell Holmes, writing for the Supreme Judicial Court of Massachusetts in 1892, upheld the firing of a police officer for violating a municipal political speech regulation by stating: “[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”[4] Over time, however, the courts have developed a more nuanced approach that seeks to balance free speech pertaining to matters of public concern with public employers’ desire to maintain organizational efficiency.[5] Furthermore, while common law developments have changed the legal landscape for public employees engaged in free speech, legislative enactments have also provided increased protection through the promulgation of federal and state whistleblower statutes designed to encourage the exposure of public corruption, misconduct, and inefficiency.[6]
Where the value of a public employee’s free speech outweighs the government’s interest in efficient operation of the organization, the employee enjoys the protection of the First Amendment.[7] And, when the speech involves matters of public concern, the law is protective of it.[8] In Pickering v. Board of Education, where a public school teacher faced dismissal over his commentary on school policy issues, Justice Thurgood Marshall, writing for the Court, held: “absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.”[9]
Content-based public sector social media policies that place restrictions on the private speech of employees will be subject to strict scrutiny by reviewing courts.[10] While there are certain carve-out exceptions (i.e. threats, incitement, etc.), private speech concerning matters of public importance is generally protected, yet subject to a balancing analysis.[11] Restrictive social media policies that are designed to preserve a public organization’s efficiency interests—but not narrowly tailored to those interests—may be held to violate the First Amendment. And when such policies are egregiously restrictive, the effect may hinder our marketplace of ideas through viewpoint discrimination that chills free expression.
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