Controversial Social Media Posts: First Amendment Considerations

Employee social media posts may present challenges for schools already seeking to manage the charged political atmosphere, as was the case for some schools following Charlie Kirk’s recent assassination and other political and social issues. This article discusses the scope of school employees’ First Amendment rights, and the factors school officials should consider before disciplining a district employee for social media posts.

In 1968, the U. S. Supreme Court first recognized public employee free-speech rights in Pickering v Board of Education and ruled that a teacher had the right to write his local newspaper a letter that openly criticized his school board’s funding allocation. The Court wrote: “The problem in any case is to arrive at a balance 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.”

Similarly, in the 1987 decision Rankin v McPherson, the U.S. Supreme Court overturned the employment termination of a public employee who commented in private to a coworker that she hoped the next person who shoots at President Reagan “gets him.” Applying the Pickering test, the Court concluded that a private remark from an employee with limited authority and public impact was protected by the First Amendment, regardless of the unprofessionalism.

In contrast, in the Sixth Circuit Court of Appeals’ 2020 decision Bennett v Metro Gov’t of Nashville, a public employee posted about President Trump’s election victory on Facebook. In the comments to her post, Bennett used a racial slur. The next day, she deleted the post. Before its deletion, however, a number of Bennett’s coworkers saw the post and filed complaints. Ultimately, the employer fired Bennett for using a racial slur.

The Sixth Circuit upheld the employment termination. In the opinion, the court found “sufficient disruption was shown to tip the Pickering balance towards the employer.” The court noted that even though Bennett’s post did not impede her performance of her duties, it likely disrupted the harmony of the workplace, was likely to have a detrimental impact on working relationships with her coworkers, and detracted from her employer’s mission. The Sixth Circuit ruled that the fact that Bennett’s Facebook profile was public and identified her as an employee of the public entity also weighed in the employer’s favor. Finally, the court recognized that the use of a slur enjoys less protection than other types of speech, so less proof of a disruption was required.

When considering whether an employee’s social media post is subject to discipline, school officials should assess whether the statement:

1. impairs discipline by superiors or harmony among coworkers;
2. has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary;
3. impedes the performance of the speaker’s duties or interferes with the enterprise’s regular operation; or
4. undermines the employer’s mission.

First Amendment issues arising from employee social media use are fact specific and complicated. There may have been a different result in the 2020 Sixth Circuit case if Bennett had a private Facebook page, if she did not identify her employer on her page, or if the speech had been entitled to a higher form of protection. Before disciplining an employee for social media use, school officials should carefully analyze the particular facts to determine whether First Amendment protections extend to that employee’s posts. School officials must consistently apply employee speech policies when considering any potential discipline. Consideration also includes whether an employee made the social media post during the workday on work time, which would rarely be appropriate. We encourage school officials to contact legal counsel before disciplining employees for a social media post.