Richard Raysman is a Partner in our New York office.
Though the First Amendment affords greater free speech protections for government employees relative to those in the private sector, the speakers do not have carte blanche to insult or deride whomever they see fit. Rather, courts will balance the interest a governmental entity may have in regulating speech versus the constitutional rights of the speaker.
A recent case arose which presents the attempt of one court to balance these interests in the context of postings made on Facebook. In Shepherd v. McGee, No. 03:12-cv-02216-HZ, 2013 WL 5963076 (D. Or. Nov. 7, 2013), the plaintiff sued her former employer, the Oregon Department of Health Services ("DHS"), under a theory of First Amendment retaliation under 42 U.S.C. § 1983. Specifically, the plaintiff alleged that her firing was as a result of derogatory Facebook comments she made about individuals on public assistance, and that it was thus unconstitutional pursuant to her First Amendment rights to free speech.
The plaintiff was employed as a child protective services worker ("CPS") who determined child custody cases. She could be called into court as a result of this work. On multiple occasions, the plaintiff posted to her Facebook derogatory remarks about individuals on public assistance, including a suggestion of sterilization for individuals who have previously had their parental rights terminated. After an investigation, DHS fired the plaintiff.
In its analysis, the court looked to the five-step test for evaluating a First Amendment retaliation claim against a government worker, though it primarily focused on the fourth factor: "whether the state had adequate justification for treating the employee differently from other members of the general public." See Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009) (listing the entire five-step test). The court agreed that the state had adequate justification for treating the plaintiff differently, e.g. firing her, for a number of reasons. First, the court agreed with the defendant that her posts irreparably impaired her ability to perform her duties, since every time she appeared in court to testify on a CPS matter, she would immediately be impeached by the defense attorney. In fact, DHS had already concluded that the Facebook posts by plaintiff would prevent her from ever being called as a witness prospectively, even though she had been doing so 6 to 8 times per month as part of her job responsibilities. Second, the court agreed with the defendant that the Facebook posts caused disruption in the workplace sufficient to warrant her firing. Specifically, as a result of the Facebook posts, two coworkers doubted plaintiff's ability to be effective in her role. This was considered by the court to be sufficient evidence of a "substantial disruption" in their working relationships.
The court noted that speech protections are greater when the speech in question is at the core of First Amendment or is disseminated to a wider audience. The plaintiff's Facebook posts did not apply to either of those scenarios. First, plaintiff admitted they were meant to be humorous and ironic, and therefore the posts did not constitute "speech intended to help the public actually evaluate the performance of a public agency." Second, since plaintiff had customized her Facebook settings to allow only her designated Facebook friends to view her posts, they could not be considered to have been disseminated to a wide audience.
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