What Free Speech? Social Media Pitfalls for Public Employees

On July 6, 2016, the aftermath of Philando Castile’s shooting by a Minnesota police officer was live-streamed on Facebook. The next day, Anthony Venable, an officer with the Metropolitan Nashville and Davidson County Police Department (MNPD), posted a number of comments in a Facebook conversation including: “Yeah, I would have done 5,” in response to a comment that Castile was shot four times. The postings never identified Venable as an MNPD officer. Yet, within minutes, his postings got MNPD’s attention, prompted an investigation and resulted in his termination.

Three years later, in December 2019, a federal judge ruled that Venable’s termination (which had been upheld by a civil service board) did not violate his First Amendment right to free speech[1]:

This Court has no hesitation in concluding that the MNPD could reasonably predict that Venable’s comments would be disruptive to its mission and affect officer morale. The comments were made directly in response to a police shooting at a time when police shootings were a hot topic of debate among members of the public and the subject of nationwide protests.

This case and others should dispel the widely held misperception that public employees are protected by free speech and can say—as private citizens—whatever they want and whenever they want, without job consequences.[2] Yet, just on June 27, 2020, four San Jose police officers were reportedly placed on administrative leave after being linked to a private Facebook group rife with racist and incendiary comments.

There is no doubt that the events over the police use of force, resurgence of nationwide protests and intensifying national conversation about race and “defunding” the police, often polarizing and divisive, make it nearly impossible to avoid putting in your two cents. There are and will be other matters of “public concern” that call us to join the debate, or speak our mind. But now, more than ever, is the time to step away from the screen and consider the pitfalls.

• There is no such thing as a “private” social media post or communication.  Employees should operate as if whatever they share on social media with their “friends” will be seen by the world.
• Facebook “Likes,” Twitter “re-Tweets” or memes by others posted on your social media platform may been seen as your own speech—whether or not you had anything to do with the original content
• Think about how the employer, co-workers or citizens would react if they saw the post? Would it cause somebody to complain?
• Ask if the employer can say the posts or comments affect its interest in efficiently fulfilling its public services.
• Public employees, especially those in positions of public trust (Firefighters and LEOs), are held to a higher moral standard.
• Public safety employees (firefighters and LEOs) depend on co-workers maintaining strong, trusting relationships. This factor is considered by courts in examining whether social media posts (especially those directed at a co-worker, a group of co-workers, supervisors or managers) by an employee serve to cause disruption in the workplace.
• Employees who are identified as a “Fire Fighter” or “Law Enforcement Officer” may be deemed to have made the posts or comments in their “official capacity” resulting in no First Amendment protections.
• Speech that is threatening, vulgar, demeaning, insulting or made in anger with violent rhetoric will almost never enjoy First Amendment protections.

For more information, contact the attorneys at Donnelly + Gross.

Paul Donnelly       paul@donnellygross.com
Laura Gross          laura@donnellygross.com
Jung Yoon            jung@donnellygross.com
Jim Brantley         jim@donnellygross.com
Cole Barnett         cole@donnellygross.com

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[1] Venable v. Metropolitan Government of Nashville, 430 F.Supp.3d 350 (M.D. TN 2019).

[2] The First Amendment protects a public employee’s right to free speech as a private citizen if (1) the speech addresses a matter of public concern, and (2) the free speech interest outweighs the employer’s efficiency interests. Speech is considered to be a matter of public concern if it is related to a social, political or community issue.