As the election cycle continues to heat up, it is not difficult to find social media postings that could be considered inflammatory – among other things. Commenters on various social media sites can be as divisive as the presidential race has been. Politics aside, many public employers may take issue with the postings of their employees. Social media activity that espouses racist propaganda, divulges trade secrets or other confidential information, or hurt the reputation of the public employer’s business are some of the many issues that can occur when individuals “type before they think.”
Once a public employer becomes aware of problematic social media activity of an employee, the difficulty is determining what activity is protected free speech under the First Amendment and what activity may be subject to discipline or termination of the employee. The questions for a public employer dealing with these issues becomes even more difficult when the employee’s social media is “private.”
Courts have adopted a two-step inquiry to balance the competing interests of public employers and public employees under the First Amendment. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.
If you would like Isaac Wiles to assist your company in helping to determine what social media activity can and cannot result in employee discipline or craft policies to protect against the release of confidential information and reduce liability exposure, please contact Matthew Teetor.