To Tweet or not to Tweet: Government Employees and Social Media

By Melemaikalani Moniz, Legal Intern

April 24, 2017

Many government offices and agencies have official Twitter accounts, which enable them to communicate news and information to the public in a timely manner. On Jan. 20, 2017, the day of President Donald Trump’s inauguration, one of these Twitter accounts was thrust into the national spotlight. The National Park Service retweeted side-by-side photographs of President Trump’s inauguration and former President Barack Obama’s 2009 inauguration, which showed that there were far fewer people in attendance at President Trump’s.

Shortly afterwards, the president made a public statement that approximately 1.5 million people attended his inauguration; Press Secretary Sean Spicer followed up with statements that the inauguration had “the largest audience to ever witness an inauguration” and that it had more attendees than President Obama’s inauguration; and the Department of Interior, which the National Park Service falls under, was forced to suspend all of its department Twitter accounts.

A few days later, a new Twitter account appeared, bearing the name “Badlands National Park Service.” This “rogue” twitter account posted scientific facts pertaining to climate change, an issue in question under President Trump’s new administration. Park rangers, government employees at the Badlands National Park, were said to be behind this new Twitter page, sparking debate as to whether or not they were protected under the First Amendment.

These incidents have raised public awareness of a much broader question: What are the free speech rights of government employees? Can they be fired or disciplined for statements they make on social media, or do they have the same right to air their political opinions as ordinary citizens?

The answer: It depends. (The same answer applies to most legal questions.)

For the most part, the government can’t punish or limit the speech of private citizens. But employers do have the right to limit or discipline the speech of their employees. Naturally, things get a little complicated when the government is your employer.

Here are a few ways in which government employees can evaluate whether or not their speech could be protected by the First Amendment:
1) First of all, government employees are only protected by the First Amendment when they are speaking as private citizens. If their speech is part of their official job duties, then they can be fired or disciplined for it.

This rule comes from a 2006 Supreme Court case, Garcetti v. Ceballos. Obviously, it isn’t always easy to differentiate when a government employee is speaking as a private citizen, and when they are speaking as a government employee. This becomes especially difficult on social media, where the line between private citizen and government employee may begin to blur. In instances where government employees spoke out on social media concerning their official duties, courts have frequently found that their speech is not protected by the First Amendment. Here are some basic guidelines to keep in mind.

  • An official government Twitter account is considered to be an official communication channel for the government. When a government employee tweets from a government Twitter account, that employee is speaking pursuant to his or her official duties, and is not protected by the First Amendment. A government employer would be within their rights to terminate an employee who tweeted statements in opposition of that agency’s expectations.
  • Government employees can, of course, express themselves on their own private social media accounts. They can speak freely regarding their private lives: families, friends, gardening tips, recipes, and so forth. They may also engage in political speech on social media as long as it is not through the lens of their employment. (For example, a police officer can express his opinions about criminal justice on Facebook, but if he makes an assessment of his precinct’s specific policies, his employer will probably be able to discipline him for it.)
  • Some government employees are considered “public-facing” employees if they frequently interact with the public (for example, a city councilman, a school superintendent, or a White House press secretary). These employees are almost always considered to be speaking pursuant to their official duties, whether they’re speaking about their jobs or speaking in a personal capacity. This is because of the public perception that these public-facing employees can never really sever their connection with the government, and that even when they are speaking about personal matters they somehow represent the government’s position.
  • Some employees, like teachers or police officers, are held to a higher moral and ethical standard than the general public, and so even their private conduct is considered to have an impact on their official job duties. Therefore, if a teacher posts photos of herself abusing alcohol or using inappropriate language, she may be subjected to discipline or termination.
    • In Pittsburg, a Spanish teacher, Ginger D’ Amico, was suspended for a month without pay due to a picture posted by a third party of D’Amico and a male stripper. While the photo had been taken down almost immediately after it was brought to D’Amico’s attention, the damage had already been done. The surprising part: D’Amico was not the only teacher in the photo. However, as the only teacher identifiable, she was therefore held responsible.
    • In Georgia, a 24-year-old English teacher, Ashley Payne, was called into the principal’s office to be warned that she could be terminated due to content on her Facebook page. The problematic content included pictures from her recent trip to Europe, including one of Payne at a beer garden consuming alcohol, and a comment that she was to attend a trivia contest called “Crazy Bitch Bingo.” While Payne’s Facebook page had been private, a student had discovered the activity and alerted the principal through an anonymous email.

2) If a government employee was speaking as a private citizen, the next question is, was their speech regarding a matter of public concern? If they weren’t speaking on a matter of public concern, the First Amendment will not protect their speech. If they were speaking on a matter of public concern, the First Amendment might protect their speech. (There’s still a test to go after that.)

Speech is considered to regard a matter of public concern if it relates to a social, political or community issue. While speech touching on corruption or racial discrimination in a workplace tends to be viewed as relating to matters of public concern, at least one federal appeals court (the 11th Circuit) has held that speech pertaining to sexual harassment is a matter of private concern. The definition of public concern has been interpreted widely by different circuit courts, so the definition might vary depending on where you are.

The Supreme Court established this as a necessary element for a government employee’s speech to be protected by the First Amendment in Pickering v. Board of Education. In a later case, Connick v. Myers, the Supreme Court instructed that the question of whether an employee’s speech addresses a matter of public concern should be determined by looking at the content, form, and context of a given statement, as revealed by the whole record, and not by applying a common, standardized rule. The Court also said that this was a question of law, meaning that it should be left to the court to decide, not a jury.

In a state court case called Reed v. West Virginia State Police, a police officer on leave, Gregory Reed, made a post to his personal social media account that implied that he might commit workplace violence. The court evaluated whether this was speech on a matter of public concern by looking at the content, form, and context of the statement, as revealed by the whole record. Based on this, the court found that Reed’s Facebook post was not concerning a matter of public concern, but a matter of private concern: his frustration with the way the police department had put him on leave. The court found that the police department was within its rights to terminate him.
3) If a government employee was speaking as a private citizen on a matter of public concern, the next question is whether the government employer’s interest in efficiently fulfilling its public services is greater than the employee’s interest in speaking freely.

The government employer has an interest in efficiently providing public services and maintaining good professional relationships within an office. Courts analyze the government employer’s interest by considering a set of factors: 1) whether the speech would interfere with the employee’s responsibilities, 2) the nature of the working relationship between the speaker and those at whom the criticism was directed, 3) whether the relationship between the speaker and the person criticized was sufficiently close that the speech would create disharmonious relations in the workplace, 4) the speech would undermine an immediate superior’s discipline over the employee, or 5) would compromise the loyalty and confidence required of close working employees. When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference is given to the government employer’s judgment. After the courts consider each factor, the courts weigh these factors against the employee’s interest in speaking out.

In a federal district court case, Palmer v. County of Anoka, the court evaluated a First Amendment claim by Leah Palmer, a spokesperson for a county attorney who acted as a liaison between the county attorney and the sheriff’s office. However, Palmer spoke about the sheriff’s office on social media, accusing it of sanctioning homicide. The court concluded that while Palmer did speak on a matter of public concern, Palmer’s social media speech disrupted her relationship with her employer and disrupted the relationship of the county attorney and the sheriff’s office. Palmer’s employment was effectively terminated.
4) Special Note: Federal government employees have extra restrictions on their speech, which are imposed by the Hatch Act.

The Hatch Act, or the Act to Prevent Pernicious Political Activities, was passed in 1939. The purpose of the Hatch Act was to prevent federal employees from engaging in partisan political activities, such as endorsing particular political candidates. Although the Hatch Act explicitly applies to federal employees, state employees may be bound by this act if they work in connection with federally-funded programs. While some argue that the Hatch Act violates the First Amendment rights of government employees, the Supreme Court has ruled otherwise, upholding the constitutionality of the Hatch Act not once but twice: United Public Workers of America (C.I.O) v. Mitchell[1] and U.S. Civil Service Commission v. National Ass’n of Letter Carriers.[2]

Federal employees do have the ability to vote, participate in voter registration and express their political opinions. They cannot, however, interfere with an election, wear partisan buttons, or solicit political activity or political contributions, nor can they discourage them. Federal employees cannot post on social media while they are on duty. (They are free to post to their private social media accounts when they are off duty.)

The Hatch Act is filled with nuances that may be difficult to understand. A good rule of thumb: Leave politics completely at home.


Notes

[1] In United Public Workers of America (C.I.O) v. Mitchell, 330 U.S. 75 (1957, the United Public Workers of America brought suit challenging the constitutionality of the Hatch Act. The Supreme Court weighed the First and Fifth Amendment rights against a “congressional enactment to protect a democratic society against the supposed evil of political partisanship by classified employees of government.” As Congress was concerned about federal workers participating in nonpartisan elections, the Supreme Court chose not to dispute Congress. The Supreme Court dismissed the action and held the Hatch Act as being constitutional.

[2] In U.S. Civil Service Commission v. National Ass’n of Letter Carriers, AFL – CIO, 413 U.S. 548, a provision of the Hatch Act prohibiting government employees from taking an active part in political management or in political campaigns was challenged in District Court. While the District Court ruled the provision unconstitutional, the Supreme Court ruled the provision constitutional.