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Q: I live in Tennessee, and my town recently adopted a social media policy that forbids any city employee, elected official, appointed official, vendor or volunteer from posting anything “negative” about the city on social media.
Can you please take a look at this and determine if this is a violation of the First Amendment?
A: The First Amendment, with some exceptions, generally prevents the government from limiting citizens’ speech. Employers, with some exceptions, generally have the ability to limit what their employees can say on behalf of the company or while
engaged in work functions. Thus, an interesting dynamic is generated when, as in this situation, the government is the employer.
As a threshold matter, it is important to note that “public employees do not surrender all their First Amendment rights by reason of their employment.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S. Ct.
1951, 1957, 164 L. Ed. 2d 689 (2006). “It is well settled that ‘a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.’”
Id. at 413 (quoting Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).
However, as noted, “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.”
Garcetti, 547 U.S. at 418 (citing Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality opinion) (“[T]he government as employer indeed has far broader powers than does the government as sovereign.”).
The key distinction is “whether the employee spoke as a citizen on a matter of public concern.”
Garcetti, 547 U.S. at 418. “If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.”
Id. (citing Connick, at 147). “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.” Id. (citing Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
In Pickering, the Court held that while teachers as public employees do not enjoy the complete protection of the First Amendment because of the government’s “interests as an employer in regulating the
speech of its employees,” a balance must be struck between “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs
through its employees.” Id. at 568. However, the Court made clear in
Pickering that the negative impact of the teacher’s expression must be substantial and material. If the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the
classroom or to have interfered with the regular operation of the schools generally,” then “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting
a similar contribution by any member of the general public,” and the teacher’s speech enjoys First Amendment protection.
Id. at 568, 573.
Regarding the City of South Pittsburg’s social media policy, “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary
for their employers to operate efficiently and effectively.” Garcetti, 547 U.S. at 419. (citing
Connick, at 147.) In other words, a blanket policy that restricts even a government employee from making
any “negative” comment about the city likely would not withstand First Amendment scrutiny.
See, e.g., San Diego v. Roe, 543 U.S. 77, 82, (2004) (per curiam) (“Were [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues. The interest
at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.” (citation omitted)).
With respect to elected officials, appointed officials, vendors and volunteers—none of whom are city employees—the city’s policy is even more questionable. Indeed, purporting to limit the content of an electedofficial’s speech is particularly troubling. This almost certainly reaches the very heart of “[c]ore political speech” that traditionally “occupies the highest, most protected position” in the hierarchy of speech protected by the First Amendment.
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 422 (1992).