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Facebook Firings - By Susan Borowski

Social media use is increasing exponentially, and with it, the problems that can occur. Some recent statistics on social media from Nielsen’s Social Media Report: Q3 2011 include the following:
  • Nearly a quarter of the time people spend on the Internet is spent on social media sites.
  • More time is spent on Facebook than on any other website in the U.S.
  • Nearly 40 percent of those who access social media sites do so from their mobile phone.
  • The primary age group of social media users is the 18 to 34-year-old bracket.
Social media can be both a blessing and a curse. A blessing, because it connects people who otherwise may not connect; brings friends, relatives, and even business associates closer; can be used as a message board for getting out information; and can be used as a form of free marketing and advertising. Despite the benefits, however, social media is not without its issues.

Beware the negative posts

The pitfalls inherent in social media use seem to be most apparent when the posts tend toward the negative. Here are some examples:

In December, a Brownsville, Texas police dispatcher was put on administrative leave for harassment after posting text messages and photos between her husband and another woman (both police officers in the same department) on her Facebook page.

In November, a New Jersey Administrative Law Judge recommended the termination of a public school teacher for her Facebook posts in which she described her first grade students as “hardened criminals” and likened her job to that of a prison warden. The posts were brought to the attention of the school district by parents who happened upon it.

Another New Jersey teacher recently came under fire for her Facebook posts in which she protested about a school display recognizing October as Lesbian, Gay, Bisexual and Transgender History month. Her posts affirmed her religious beliefs, stating that gay people lived “against the nature and character of God.” While the local American Civil Liberties Union affirmed her First Amendment rights to freedom of speech, the organization also indicated that her posts may have violated not only school policy, but New Jersey’s Law Against Discrimination.

Facebook posts don’t have to be patently negative to draw public outcry. A public school teacher in Georgia was forced to resign after the school received a complaint about photos of her on Facebook holding an alcoholic drink in her hand. The photos were taken while she was on vacation in Europe. Her Facebook page was accessible only to adults and was set to the highest privacy settings.

The limitations of the First Amendment

Public employees are generally aware that they have freedom of speech rights as guaranteed by the First Amendment to the U.S. Constitution, and public employees enjoy greater First Amendment rights than do private sector employees. Still, such rights have their limits, particularly where social media is concerned.

For a public employee to claim a free speech right (whether on social media or other form of expression), he or she must satisfy several elements:

1. Citizen vs. employee. The individual must be speaking as a concerned citizen, as opposed to speaking strictly as an employee. Generally, speech that is made in a person’s official capacity is not subject to First Amendment protections. On the other hand, speech that raises awareness over a general issue that an individual makes in his or her personal capacity as a citizen is more likely to be protected speech.

2. Matter of public concern. The speech must involve a matter of public concern, as opposed to a purely internal matter. For example, a teacher that posts on Facebook that she personally dislikes the cafeteria food is talking about an internal matter that doesn’t affect the public welfare. On the other hand, if she posts that the nutritional content of the food is subpar and therefore the educational institution is doing its students a disservice, such a post raises a matter of public concern, which elevates her post to the level of protected speech.   

3. Balancing test of interests. The speech must outweigh the employer’s interest in maintaining efficiency and minimizing disruption to the operations of the workplace to be considered protected. This disruption need not be currently present if the employer can show that the employee’s speech has the potential to negatively impact business operations. In Richerson v. Beckon (9th Cir. 2009), the court found that a school district employee’s negative posts about co-workers (for which the employee was terminated) were stereotypical personal attacks, and hence unprotected speech, even though some of the underlying concerns raised had to do with the management of the school. The posts were considered sufficiently disruptive to the operations of the organization.

4. The speech caused an adverse employment action. Finally, if an adverse employment action (demotion, termination, loss of tenure) has occurred, and if all the above elements are met, the employee must show that it was the speech itself, not other factors, that caused the adverse employment action to be taken.

Word to the (social-media) wise

While it’s tempting to think that whatever you post in the privacy of your own home on your own high-privacy-setting social media page will be viewed only by your intended audience, history and experience dictate otherwise. Some points to take away from others’ mistakes:

1. Be extremely careful what you post on any social media site, both text and photos. Educators and public officials are held to a higher standard because they are in a position of trust.

2. Don’t rely on privacy settings or selective “friending” to protect you. As the case studies illustrate, nothing is safe from prying eyes, regardless of the protections people used to keep content private.

3. The free speech rights guaranteed by the First Amendment are not absolute. They can only protect a Facebook post in certain circumstances.

4. Think twice before you post, particularly any comments that are negative in tone or photos that some may find objectionable. Look at a comment or photo and think of the reaction a student, parent, member of the public, or other person not in your network might have if they see it. It just might make you think twice about what you post.

Susan Borowski is a contributing writer for INSIGHT Into Diversity magazine.

Originally published in our February 15 issue (March 2012).
 
 


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