Facebook Comment Arguably Was Protected Speech

 

By Jeffrey Rhodes March 24, 2020
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​An Indiana Army National Guard member who published an e-book regarding her experiences as a phone-sex worker could pursue a First Amendment claim against the Guard director who fired her for mentioning it on Facebook, the 7th U.S. Circuit Court of Appeals ruled.

A little more than a decade ago, the plaintiff was unemployed and decided to work as an operator on a phone‐sex telephone line. The plaintiff then wrote and published a book on the experience, Conversations with Monsters, by making it available for sale in electronic form on Amazon, an online marketplace.

In the book, the plaintiff recounted five of her most horrifying phone‐sex calls and meditated on the social role of phone‐sex operators and on her experiences as one of them. The plaintiff described her horror in hearing what some of the callers would fantasize to her about, including sexual abuse of children. In the book, the plaintiff condemned the callers to her phone-sex line as "monsters" and particularly denounced those that expressed sexual attraction to children.

On June 2, 2016, the plaintiff announced publication of her book on her page on Facebook with a link to the book's page on Amazon. The plaintiff's Facebook page was set to private, meaning that only Facebook users whom the plaintiff designated as her friends could view what she posted there. Because the book was published pseudonymously, only the plaintiff's Facebook friends could tie her to it unless they hunted through her past posts to find a reference to it.

Shortly after publishing Conversations with Monsters, the plaintiff was selected to participate in the Volunteers in Service to America (VISTA) program. The VISTA program is a part of AmeriCorps, a federal network of hundreds of programs across the nation. AmeriCorps is administered by Corporation for National and Community Service (CNCS), a federal agency that leads service, volunteering and grantmaking efforts in the United States. The plaintiff had applied to and been accepted by CNCS as a VISTA volunteer sponsored by the Indiana Army National Guard at the Guard's Family Program Office.

The plaintiff maintained a database of information on service providers to whom veterans and their families could turn for help. Much of the underlying information had already been gathered by the Guard's previous VISTA volunteer. Occasionally the plaintiff could find no contact information for the service provider, so using her own Facebook account, she posted a comment to the provider's Facebook page asking for the information she needed.

During her employment, the plaintiff's direct supervisor asked to become her Facebook friend. The plaintiff felt she could not reject this request from her quasi‐employer and accepted the friend request, giving her supervisor access to all of her friends-only Facebook activity. The supervisor explored the plaintiff's Facebook history deeply enough to come upon her post of June 2 announcing the publication of Conversations with Monsters. The supervisor and another Guard employee followed the Amazon link and purchased a copy of the book.

On Sept. 27, the supervisor and the other employee brought the book's contents to the attention of the lieutenant colonel who was the Guard's state family program director. The director found the plaintiff's Facebook page did not favorably represent the Guard's Family Program Office and requested that the plaintiff be removed from the VISTA placement or be fired.

The plaintiff was given 19 days to find a new sponsor or her VISTA participation would be terminated. The plaintiff failed to secure reassignment by the deadline. On that day, she was informed that her VISTA membership had been terminated for lack of suitable assignment.

Within two weeks, the plaintiff sued the lieutenant colonel and several managers in their personal and official capacities, as well as the U.S. government, for violating her rights under the First and 14th Amendments and the Administrative Procedure Act. The defendants filed motions for summary judgment, and the district court granted the motions and entered final judgment in the defendants' favor.

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On appeal, the 7th Circuit found that the director could not justify the plaintiff's discharge and defeat her claim on a summary judgment motion. During her employment, the plaintiff had not connected the book with her work. A reasonable member of the public would not have viewed her as speaking for the Guard due to her mainly clerical duties. Thus, the appeals court overturned summary judgment for the director on the plaintiff's First Amendment claim and allowed it to proceed to trial.

Harnishfeger v. United States, 7th Cir., No. 18‐1865 (Dec. 3, 2019).

Professional Pointer: Federal and state employees have free speech rights that a public employer cannot limit by discipline or discharge, unless the employer can show how inappropriate employee speech negatively affected its mission or was made in a work-related capacity.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

 

Join the Society for Human Resource Management and the U.S. Department of Labor (DOL) for a Twitter chat hosted by @ePolicyWorks on March 25 at 2 p.m., using the hashtag #EPWChat to provide input as the DOL develops guidance on the Families First Coronavirus Response Act. Or participate online at https://ffcra.ideascale.com from March 23 through March 29.

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