More evidence of the dangers of employees using social media surfaced last week. In Duke v. Hamil, a Federal Court in Georgia sent a strong message to employees – beware of what you post on Facebook.
Rex Duke, Deputy Chief of Police of the Clayton State Police Department, had more than 30 years of experience as a police officer. In 2012, just after the November presidential election and while still employed by the department, he posted a message on Facebook stating, “It’s time for the second revolution” and posted a picture of a confederate flag. Duke set his privacy settings so that only his close friends and family could view the post. The police department, at the time, did not maintain a social media policy.
Although Duke deleted the post after only an hour, someone captured an image of the post and sent it to a local television station which prompted a reporter to contact Duke and University officials. Also, the University received complaints about Duke so it commenced an investigation. Ultimately, the Chief of Police determined that Duke’s post was inappropriate and they demoted him, cut his pay, and reassigned him to an undesirable shift.
For most employees, this would be the end of the story. Most employees have no protection from being fired because an employer is unhappy with a post an employee made on a social media site, underscoring the risk of posting on social media. However, because Duke worked for a public University, he had some protections under the First Amendment, including free speech and political expression rights. Indeed, Dukes sued the Chief and the University for First Amendment violations.
But, here is where the story becomes more troubling for employees because even though public employees may be protected by the First Amendment, the Court found that Duke’s Facebook post was not protected. The law is well settled that the First Amendment doesn’t always protect government employees, like Duke. An employee must first establish that he/she was speaking as a citizen on a matter of public concern. In Duke’s case, the Court determined that he was speaking as a citizen and that he spoke on a matter of political and historical significance so it was a matter of public concern.
The second step of the analysis is whether the employee’s First Amendment interests are more heavily weighted than the government’s interest in promoting an efficient workplace. In Duke’s case, the Court held that his speech was “controversial, divisive, and prejudicial” and that it could cause disruption within the department. Moreover, the Court expressed concern that the speech “implicated the Department’s reputation and the public’s trust.” Looking at the speech, the Court determined the department’s interests outweighed Duke’s.
The Court continued its analysis by looking at the manner of the speech, i.e. posting on Facebook. Duke argued that his post was not widely disseminated because his privacy setting was set to close friends and family. The Court noted that despite the privacy setting and despite the fact that Duke quickly removed the post, it nonetheless quickly became public. The Court’s language should give every employee pause to think about their post before submitting: “This illustrates the very gamble individuals take in posting content on the Internet and the frequent lack of control one has over its further dissemination. And even though there was no social media policy prohibiting political posts on websites like Facebook, the absence of such a policy did not foreclose a response to speech that compromised the Department’s interest.” Based on that analysis, the Court found that Duke’s Facebook post was not protected by the First Amendment.
The Duke case serves as an important reminder about the dangers of Facebook. Most notably, it emphasizes that employees risk reaction from their employers when posting on Facebook. In the Duke case, even with privacy settings and even with the post being removed after a short time, the employer still found out about the post and reacted to it. Further, most employees have no job protection and the Court’s analysis in Duke would not be used because the First Amendment does not apply to private employers. But, even in Duke’s case where the First Amendment might have protected him, the Court determined that it did not protect Duke’s Facebook post. Since the law did not protect Duke who potentially had more employment protections than most, it will not protect the many employees who do not have the same protections.
Finally, the Court’s observation that posting on the Internet may result in the “lack of control” over the post’s subsequent dissemination serves as a reminder to think twice about posting, for the sake of employment, and life in general.
If you have further questions about social media and employment, call the lawyers at Famighetti & Weinick at 631-352-0050 or visit our website at www.linycemploymentlaw.com