When involved in litigating cases, attorneys (or their investigators) often troll the Internet looking for potentially-harmful material that can be used to discredit a witness. The information which is now readily available from individual social media accounts also serves to provide useful background information such as the person’s friends, charities, place of employment, family members, hobbies, and photographs for identification purposes.
Some may say, “What’s the worry? I’ve nothing to hide.”
However, this approach misses the broader issue involved which is first, that of job protection and second, insulation from unwanted intrusion into your personal life.
At What Price, Facebook Posts?
In the world of social media, a private posting on Facebook meant as a joke can later become a nightmare. Consider the true story of a police officer who, after being involved in the fatal shooting of an armed suspect, was vilified by local media who found his Facebook profile which listed his occupation as “human waste disposal.”
Is the need to post comments — whether considered as jest, a statement of opinion, or healthy venting — so overwhelming that an officer would risk the added scrutiny that may one day come from its posting?
Is one’s job worth the liberality of the exercise of free speech too often found in the nether world of the Internet?
The law on this subject is increasingly on the side of the public employer. Across the country, arbitration cases dealing with public employee discipline have found against employees who post on social media sites derogatory, offensive, or inappropriate comments relating to their employment, supervisors, or fellow employees. Even opinion relating to employment policy matters is not protected.
The root of this latter restriction rests with the 2006 U.S. Supreme Court case in Garcetti v. Ceballos, which limited First Amendment protections for public employees. Speech made as a public employee — rather than as a private citizen — has no First Amendment protection unless it is related to a public concern. Courts have been generally accommodating to public employers in their interpretation of what is considered “speech made as a public employee.”
Additionally, the U.S. Supreme Court, lower federal courts, as well as state courts have permitted regulation of off-duty officer behavior when it may tend to bring disrepute to an agency or negatively impact an officer’s ability to perform the job.
In a case of first impression, the Minnesota Appeals Court in Tatro v. University of Minnesota found for a public university when it disciplined a student based on off-campus Facebook postings related to the student’s work in the mortuary-science program. The court upheld the disciplinary determination based on the “adverse effect on a substantial university interest” cause by the posting.
In a New York case (Matter of Rubino v. City of New York), the state Supreme Court overturned a school board’s dismissal of a teacher for inappropriate Facebook comments regarding her students. The dismissal was found to be too severe in light of the teacher’s otherwise unblemished 15-year career and the relative unlikely occurrence of a repeat offense. While this case mitigated the punishment of the public employee, the punishment itself was upheld.
This is the consistent theme in arbitrations and the courts when it comes to certain Facebook, Twitter, and other social media content posted by public employees.
Misconceptions and Misguided Notions
The often misguided notion in many of the court cases by discharged or disciplined public employees has been that their First Amendment right to free speech has been infringed upon. This argument is limited in light of Garcetti and subsequent cases relying on its precedential value.
However, another misconception is the belief in the private nature of social media posts. Social media by its nature is not a private activity. Fishing alone in a secluded spot is a private activity, posting comments on a site viewed by others, even if it is with only 30 of your intimate friends, is not private.
If you want a private conversation, have it with yourself.
Former Teamster union boss Jimmy Hoffa found this out the hard way when the U.S. Supreme Court ruled there was no privacy violation involved in the government’s use of a paid informant to prosecute him (Hoffa v. United States).
Google the words “Facebook” and “police officer discipline” and you will see the results are many from across the country. Search further and you will also see that the problem extends across different job descriptions.
When considering the safety and security of your employment, grand beliefs in the value of free speech and privacy are noble and romantic but common sense and discretion are more practical.