Not Everything an Employee Posts on Facebook is Protected Speech
Many Americans believe that their right to free speech under the First Amendment of the United States protects their right to say whatever they want on social media. Furthermore, many people believe that their personal social media accounts should be their own business, and should not affect their professional lives. In many instances this is the case, and, in fact, many laws reinforce this idea. Several states including Oregon have recently enacted laws that prohibit an employer from demanding an employee’s personal social media username, password, or other
access to their profiles.
However, a recent case out of Georgia shows that, under some circumstances, an employee’s post on a personal social media profile can have an adverse effect on their employment. In that case, the court warned that posting content on the Internet is always a “gamble.”
Employer reputation vs. Free speech
Police officer Rex Duke had 30 years of experience and had been appointed as Deputy Chief of Police of the Clayton State University Police Department in 2004. Duke’s performance reviews showed he had done a good job in his time with the University force and even filled in for the Chief of Police for most of 2007. However, after learning the results of the presidential election on November 6, 2012, Duke posted an image of the Confederate flag and the words, “it’s time for the second revolution,” on his personal Facebook profile.
Though Duke stated the post was meant to be seen only by his close Facebook “friends,” someone copied an image of the post and forwarded it to a local media station. The station then ran a story on the nightly news regarding the Deputy Chief of Police’s threatening post. The police department then received several anonymous complaints regarding the news story and the Deputy Chief. The police officials responded by demoting Duke, which significantly reduced his pay. Duke then resigned and filed suit against his former employer for violation of his First Amendment rights, among other things. He argued that since he was off-duty, at home, on his personal account, and made no mention of his employer, there should have been no adverse action against him at work.
A federal district court recently dismissed the case in favor of the employer. The court found that the Facebook post could have been interpreted by many as threatening or even violent, coming from an officer who is expected to uphold law and order in the community. Therefore, the court found that the police department’s interest in protecting its reputation outweighed Duke’s First Amendment rights to post on Facebook.
There is a lot of gray area when it comes to questionable posts on personal social media accounts. If you have any questions, contact HKM Employment Attorneys for help today.