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Electronic monitoring of employee communications may give rise to the First Amendment freedom of speech rights of public-sector employees. That said, a public department's interests in managing its internal affairs may outweigh any public interest in an employee's speech when the employee makes social media postings that are offensive, according to the 4th U.S. Circuit Court of Appeals.
Kevin Patrick Buker is a former battalion chief with the Howard County, Md., Department of Fire and Rescue Services. In January 2013, after watching news coverage of gun control, Buker posted on his personal Facebook page (in part): "lets all kill someone with a liberal … then maybe we can get outlawed too! Think of the satisfaction of beating a liberal to death with another liberal."
Another department employee replied to Buker's post and said in part: "Oh … pick a black one, those are more scary."
At the time of the posting, the department had drafted a new social media policy that prohibited personnel "from posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or position of the department, Howard County or officials acting on behalf of the department or county."
[SHRM members-only toolkit: Managing and Leveraging Workplace Use of Social Media]
The department directed Buker to remove anything inconsistent with the department's social media policy. Buker deleted his initial post but then made another post stating: "To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirely in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I'm not scared or ashamed of my opinions or political leaning, or religion. I'm happy to discuss any of them with you. If you're not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On."
Buker was later terminated for violating the department's social media policy. Buker filed suit against the department, alleging that he was retaliatorily discharged for exercising his First Amendment free-speech rights and that the department's social media policy, which played a role in his termination, was facially unconstitutional. The district court granted summary judgment in favor of the department on the First Amendment retaliation claim and dismissed as moot the constitutional challenge to the social media policy, which the department later revised.
On appeal, the 4th Circuit affirmed the district court's decision, holding that while at least some of Buker's Facebook activity addressed issues of public concern constituting protected speech, the department's interests in managing its internal affairs outweighed the public interest in Buker's speech. The court observed that Buker's Facebook activity interfered with and impaired department operations and discipline as well as working relationships within the department. Buker's Facebook activity led to dissension, at least one employee perceived the Facebook posts to be racist, and three black employees approached the president of a constituent group representing minority employees about the posts, with one member stating, "I don't want to work for [Buker] anymore. I don't trust him."
The court further held that Buker's Facebook activity conflicted with his responsibilities as battalion chief, observing that as a leader he was responsible for enforcing the department policies. Moreover, his speech frustrated the department's public safety mission and threatened community trust in the department.
Although the court resolved the balancing test in favor of the employer in this case, it emphasized that government employees do not necessarily lose their right to free speech by working for the government and expressly cautioned that an employer's interest in maintaining efficiency will not always outweigh the interests of an employee in speaking on matters of public concern.
Grutzmacher v. Howard County, Md., 4th Cir., No. 15-2066 (March 20, 2017).
Professional Pointer: While the employer won this case, employers nevertheless should be careful when drafting and enforcing social media policies so that they do not interfere unnecessarily with employees' First Amendment rights.
Madonna Snowden is an attorney with Allen Norton & Blue, P.A., the Worklaw® Network member firm in Winter Park, Fla.
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