Most of the recent legal controversy over employer enforcement of social media policies has involved employees’ concerted activity rights under the National Labor Relations Act. However, a recent case from the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) reminds public employers that the First Amendment limits their ability to restrict employee social media use.
In Liverman v. City of Petersburg, the police department’s policy prohibited the dissemination by employees of information on social media platforms “that would tend to discredit or reflect unfavorably upon the [Department] or any other City of Petersburg Department or its employees.” Two officers posted Facebook comments complaining that officers without adequate experience were being promoted to supervisory positions. The two officers were placed on probation and deemed ineligible for promotion during the probationary period. They sued the department claiming violation of their First Amendment free speech rights.
The Fourth Circuit agreed, concluding that the social medial policy was overbroad and invalid. The court noted that public employees do not enjoy absolute free speech rights, but they have the ability to comment on matters of public importance. When applied to social media use, these legal protections apply to both the original postings, as well as to other employees who agree or “like” the original comment. The medium used does not affect this analysis. Social media policies that contain blanket restrictions on speech critical of the employer do not pass constitutional muster.
While First Amendment protections do not apply to private sector employers, the Fourth Circuit’s reasoning tracks that used by the NLRB in deciding its social media policy concerted activity cases. Broad policies that prohibit or deter employees from making public statements critical of their employers will be found in violation of their statutory rights, even in situations where the employer has some legitimate concerns over damage to the organization from such conduct.
