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February 20, 2021

Can a government worker get fired over a Facebook post?

Can people who work in the public sector exercise their First Amendment rights at work? Can they lose their job because of what they post on social media?

These and other questions concerning free speech and government workers were explored Feb. 19 at “The First Amendment and Public Sector Employees” during the 2021 American Bar Association Virtual Midyear Meeting.

Consider Bennett v. Metro: In 2016, a Nashville 9-1-1 operator wrote a public-facing Facebook post following the election win of Donald Trump: “Thank god we have more America loving rednecks. Red spread across all America. Even n******* [edit YourABA] and latinos voted for trump too!”

The Metropolitan Government of Nashville fired the operator after complaints from co-workers and others. So, she sued for a violation of her rights.

But “The Sixth Circuit held the First Amendment did not provide a basis to have that employee’s speech protected,” said panelist James Carlos McFall, a partner at Jackson Parker, LLP in Dallas, who specializes in First Amendment media and entertainment litigation.

“The mere fact that one supports a political party is not in and of itself a means for which the government can terminate an employee,” he explained. “But here, the ‘speech’ involved a reference to not just ‘rednecks’ but the ‘N word,’ which the Sixth Circuit expressly stated is the ‘most vile and inflammatory word in the English language.’”

“[The operator’s post] had a detrimental impact on not just the employee’s ability to work with her colleagues – but also the public's perception of the agency itself,” McFall continued. “And as a result, the court held that the employer was allowed to terminate the employee without violating the First Amendment.”

An advocate at the Texas legislature on First Amendment and open government issues, co-panelist Laura Prather of Hanes and Boone in Austin, Texas, said most free speech cases hinge on the answers to the questions: Were you acting as a citizen? And, were you speaking about a matter of public concern?

Then, even if so – “the court still has to balance the interest of the individual with the government's interest in promoting the efficiency of its public service,” she said.

According to Prather, the courts will also look at how the speech affects the place of employment – including the harmony of the workplace and whether the speech impedes the performance of the speaker's duties, among several areas of impact.

However, one thing is clear: “Speech that is made in the course and scope of the employee’s official duty is not considered speech made as a citizen,” Prather said.

Professor Theodore Hirt of George Washington University Law School cautioned all public sector employees to mind their social media. As posts go viral and inevitably become digitally manipulated in some way – “Who knows what will be done with your words or the characterization of your words.”  And in the end, you could be held responsible.

Paula Fredrick, general counsel for the State Bar of Georgia moderated the discussion.

“The First Amendment and Public Sector Employees” was sponsored by the ABA Government and Public Sector Lawyers Division and cosponsored by the Forum on Communications LawSection of Civil Rights and Social Justice’s Free Speech and Free Press Committee and Young Lawyers Division.