Unlike employees in private companies, government workers have much better job protection when it comes to speaking their mind about politics or other matters of public concern. Government workers can't be fired or disciplined for engaging in "constitutionally protected" speech. To be protected under the First Amendment, the speech must be a "matter of public concern," the employee must be acting in his/her capacity as a private citizen rather than in his/her official duties as a government worker and the speech must outweigh the government employer's interest in "promoting the efficiency of the public services it performs."

This delicate balance was recently tested in two cases – one in Memphis and one in Nashville – in which government workers were fired after inflammatory posts on social media.

In Goza v. Memphis Light, Gas & Water Division ("MLGW"), Michael Goza, an MLGW customer service tech, made the news when he defended the Jefferson Davis statue in Memphis Park. Thereafter, he took to Facebook and posted messages that any reasonable, decent person would call racist, vile and unacceptable, so much so that we have chosen not to quote them in this article. One of Goza's Facebook pictures showed him in an MLGW truck. Word got around MLGW about Goza's social media postings and the company conducted an investigation. Citing potential liability, the safety of Goza and the public, and the desire to avoid controversy and protect its reputation, MLGW decided to demote him to a position that would not involve customer interaction. When Goza refused, MLGW fired him.

Goza filed suit in federal court, arguing that MLGW unlawfully fired him for exercising his right to free speech. Following a non-jury trial, Judge Jon McCalla ruled in his favor. The court concluded that Goza was speaking on a matter of public concern and that MLGW's interests didn't outweigh Goza's free speech rights. The court noted that MLGW did not adequately interview customers and Goza's coworkers to gauge how they would react to him continuing to perform his duties. Nor did it present any evidence that the workplace was actually disrupted by Goza's behavior. The court concluded that Goza was entitled to reinstatement as well as damages of nearly $160,000.

In Bennett v. Metropolitan Gov't of Nashville, No. 3:17-cv-00630 (M.D. Tenn. June 25, 2019), Danyelle Bennett, a white female and ardent supporter of Donald Trump, worked as a dispatch operator for Metro Nashville's Emergency Communication Center (ECC), which is in charge of 911 service. On election night in 2016, Bennett displayed a triumphant post on her Facebook page about President Trump's victory. A Facebook poster commented on Bennett's page with overtly racist comments and epithets, and here too, we will not quote the vile remarks. Suffice it to say that Bennett adopted and repeated the racial epithets in her reply. A few of her coworkers saw the post and complained.

Following an investigation, the ECC decided that Bennett should be fired for using a racial slur. Bennett filed suit in federal court and, as with Goza, alleged that the ECC unlawfully fired her in retaliation for exercising her First Amendment right to free speech.

With the help of a jury, Judge Eli Richardson sided with Bennett. The court concluded that Bennett's post was a matter of public concern and that Bennett's right to display the post outweighed the ECC's interest in "promoting the efficiency of the public services it performs." Although the ECC argued that Bennett's post caused disharmony in the workplace and jeopardized the agency's public image, the court determined that the ECC – similar to MLGW – did not conduct an adequate investigation to corroborate that this was actually true.

The ECC could only identify one coworker who expressed concern about continuing to work alongside Bennett. The court also "views it as highly speculative that even if an African American were familiar with Plaintiff's Facebook comment and was offended by it, such African American would be deterred from calling it an emergency." Although Bennett sought damages in excess of $100,000, the jury only awarded her $6,500 in backpay and $18,750 for humiliation and embarrassment.

These cases highlight how much harder it is for public employers to take adverse employment actions against their workers than private employers and the strength of First Amendment protection. Had Goza and Bennett worked for private companies, it would have been a "no-brainer" that they could be fired. In fact, the consequences of turning a blind eye to such inflammatory posts could be much more harrowing.

This article appeared in the Nashville Business Journal and the Memphis Business Journal.

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