As with most major spectator sports, national elections tend to draw commentary from everyone. With social media platforms like Facebook, Twitter, and even Instagram, Americans have more options than ever to comment on the campaigns and show support for their chosen candidate. With both major parties’ conventions wrapping up toward the end of last month and Election Day just around the corner, we thought it would be a good time to revisit the First Amendment rights of public employees.
Broadly speaking, the First Amendment prevents government action to punish or limit speech. Because they are government actors, public employers have much more to consider when it comes to disciplining or regulating employee speech than their private counterparts. Indeed, it is important to remember that, like all Americans, public employees have broad rights to speak freely on “matters of public concern,” despite their public employment, and that these rights act as restraints against actions that can be taken by their public employers.
Courts have repeatedly held that these rights occupy the “highest rung of the hierarchy of First Amendment values.” However, what constitutes a “matter of public concern” has caused many public employers significant heartburn over the years. The Supreme Court has defined speech involving a matter of public concern as speech “relating to any matter of political, social, or other concern to the community.” The Sixth Circuit recently had an opportunity to revisit this question in Marquardt v. Carlton, Case No. 19-4223 (2020). In Marquardt, a Cleveland EMS Captain made several objectionable Facebook posts relating to the death of Tamir Rice. The Captain was fired and he sued for a violation of his First Amendment rights. The Sixth Circuit ruled that though the posts were “distasteful and unpopular,” they addressed a matter of public concern, stating “the posts addressed a ‘subject’ one could envision ‘stepping up to the microphone’ to discuss in the traditional public square.”
However, determining whether speech addresses a matter of public concern is only half the equation. Public employers retain a legitimate interest in operating their organization in an efficient manner. At times, this might mean disciplining an employee for something they say, whether it regards a matter of public concern or not. These two competing interests – the employer’s interest in maintaining an efficient workplace and the employee’s interest in commenting on matters of public concern – require delicate balancing, and courts will frequently spill a lot of ink trying to parse the ins and outs of these two interests. However, as a general rule of thumb, public employers should not discipline an employee for speech relating to matters of a public concern without consulting legal counsel first. Generally, courts will balance a public employee’s rights to comment on a matter of public concern against the public employer’s need to maintain order and carry out its mission.
But what about employee speech regarding matters that are not of a public concern? First Amendment protections do not extend to matters not related to the general public interest. The most common example is speech related to a public employee’s employment. Public employees do not have a First Amendment right to comment on matters relating to their own employment since such matters do not concern the general community. This includes public comment on disciplinary matters. Other examples of speech not covered by the First Amendment include confidential information obtained through public employment and use of official employer logos. However, like matters of a public concern, public employers should refrain from disciplining employees for speech until they have consulted with legal counsel.
In Ohio, classified public employees are also prohibited by statute from engaging in partisan political activity. This includes soliciting or receiving any assessment, subscription, or contribution for any political party or candidate for public office. However, classified employees retain their First Amendment rights to express political opinions, make financial contributions to political candidates and organizations, display political stickers on their vehicles, post on social media about their chosen candidates, and, of course, register to vote.
None of this means that public employers cannot limit the use of social media on computers and mobile devices owned by the public entity. Public employers are also permitted to restrict social media use during work hours.
In summary, as this year’s election draws closer, public employers should remember that their employees retain broad rights to comment on matters of public concern, including elections. Employers should always contact legal counsel before taking action against an employee for something they say on social media or elsewhere, even if those comments are distasteful and unpopular.
The attorneys at Fishel Downey regularly work with employers to ensure compliance with federal and state employment law. If you have a specific scenario or complaint in regard to these issues, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.