Can Local Governments Discipline Employees for Violation of their Social Media Policies?

Earlier this year the Fourth Circuit decided a case that pitted two fundamental interests against each other: a public employee’s First Amendment right to free speech and the government’s ability to provide efficient and effective service to the public. In the age of social media, the historic tension between these two interests has only become more contentious.

In Grutzmacher v. Howard County, 851 F.3d 333 (4th Cir. 2017),  a battalion chief of Maryland’s Howard County Fire Department (“Department”) sued the Department for retaliatory firing based on his Facebook posts and “likes.” In response to a Facebook incident in 2011, the Department drafted a social media policy, entitled Social Media Guidelines, and accompanying Code of Conduct. The Social Media Guidelines prohibited personnel:

"[F]rom 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 positions of the Department, Howard County, or officials acting on behalf of the Department or County…. [F]rom posting or publishing statements, opinions or information that might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission… [From] post[ing] any information or images involving off-duty activities that may impugn the reputation of the Department or any member of the Department." 

The Code of Conduct, which was aimed at ensuring Department members maintained “integrity and ethical conduct both on and off duty,” prohibited Department personnel from "intentionally engag[ing] in conduct, through actions or words, which are disrespectful to, or that otherwise undermines the authority of, a supervisor or the chain of command" and "publicly criticiz[ing] or ridicul[ing] the Department or Howard County government or their policies" while requiring "[m]embers [to] conduct themselves at all times, both on and off duty, in such a manner as to reflect favorably on the Department." The Code of Conduct also prohibited Department employees from engaging in "[c]onduct unbecoming" to the Department, which it defined as "any conduct that reflects poorly on an individual member, the Department, or County government, or that is detrimental to the public trust in the Department or that impairs the operation and efficiency of the Department." 

Just over a year after the Department adopted the Social Media Guideline and the Code of Conduct, the employee posted a statement on Facebook referencing news coverage of a gun control debate and alluded to killing a “liberal … with another liberal.” The employee subsequently “liked” a supportive but racially suggestive reply on his gun control post made by a county volunteer paramedic. The statement and “like” were brought to the attention of Department officials who told the employee his post violated the Department’s Social Media Guidelines and Code of Conduct and directed the employee to remove it. The employee complied but posted another statement on Facebook deriding the Department’s Guidelines and Code of Conduct and invoking the First Amendment’s constitutional guarantee of free speech. The employee also later “liked” a picture of an elderly woman with her middle finger raised that has a caption directing the picture at the Department’s captain. Ultimately, the Department fired the employee citing his Facebook activity as being violations of the Department’s Guidelines and Code of Conduct. The employee then sued the Department alleging his firing was retaliation against him for exercising his First Amendment rights and he also challenged the constitutionality of the Department’s Social Media Guidelines and Code of Conduct.

The Court upheld the termination of the employee finding that the employee’s speech on matters of public concern regarding gun control and the department’s social media policy were outweighed by the department’s interests in limiting dissension and discord, avoiding the appearance of racial bias, promoting community trust in enforcing department policies, and discouraging disrespect and insubordination.

The Grutzmacher opinion reflects the complexities that government agencies and departments face when attempting to craft social media policies that are commonplace in other businesses. Government entities, as employers, face the unique challenge of being subject to constitutional challenge given that employment decisions constitutes state action. Furthermore, public employees hold a particular status in the law that protects them when speaking on matters of public concern. The law views public employees as a kind of check on government entities because those employees are the most familiar with that entity’s activities and are in the best position to speak out those issues that are matters of public concern. However, that government entity, as an employer, has an interest in operating efficiently in order to effectively provide its service to the public. Grutzmacher is a product of when those two interests collide and in this case, the Fourth Circuit found that the government’s interest in efficient and effective operations outweighed Buker’s interests in speaking freely on public matters.

Government officials overseeing public entities and agencies can gain valuable insights from the Fourth Circuit’s treatment of Buker’s Facebook statements. The Grutzmacher court did not rule on Buker’s challenge to the Social Media Guidelines and Code of Conduct because the Department removed the allegedly offensive provisions, thus the court found the Buker’s claim in that regard was moot. But the court did provide a valuable overview of what those in government entities with hiring and firing responsibilities should keep in mind when evaluating a public employee’s social media conduct with respect to a social media policy:

• A “like” on social media is speech.
• Speech involving matters of public concern is constitutionally protected.
• Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community.
• Context and common sense is considered when asking if a member of the community be truly concerned with the employee’s speech.
• Speech on matters of personal interest is not constitutionally protected.
• Personal grievances and complaints about conditions of employment do not constitute speech about matters of public concern.
• Matters of internal policy, including mere allegations of favoritism, employment rumors, and other complaints of interpersonal discord, are not treated as matters of public policy.
• The effect of the speech on the government entity’s mission, function, and personnel is considered.

Using these rules, the Grutzmacher court found that the employee’s statements on gun control legislation and the Department’s Social Media Guidelines were protected under the public employee speech doctrine as matters of public concern. On the other hand, the employee’s “like” of the elderly lady with her middle finger raised was an unprotected personal grievance. However, the employee’s social media activity “frustrated the Department’s public safety mission and threated ‘community trust’ in the Department,” undermined the Department’s hierarchical command and discipline structure, and it had the potential to “diminish the Department’s standing with the public.” In the court’s opinion, each of those government interests outweighed the employee’s interest in speaking on matters of gun control and the Department’s Social Media Guidelines and Code of Conduct.

The Plaintiff in Grutzmacher filed a petition to the United States Supreme Court on June 19, 2017, so the case is not over quite yet. If the Supreme Court decides to hear the case, it would provide further clarity on how government officials should evaluate a public employee’s social media activity and speech. In the meantime, government officials can discipline employees for violation of their social media policies but they should exercise caution when crafting and applying social media policies and insure their actions comply with current case law.

Jeff Rosen is a shareholder at Pender & Coward focusing his practice on local government and labor and employment matters.  For more information, contact Jeff at jrosen@zhangshijinye.net or (757) 490-6253.