There’s a mistaken notion among many public employees that the First Amendment protects them from being fired for their online speech. It doesn’t, even if they’re off duty on their own device – unless the speech passes a tough legal test.
A recent casualty
Sara Erwin was a 20-year veteran officer in Hopewell Township, New Jersey. In June 2020, during the height of protests and riots following Officer Derek Chauvin’s murder of George Floyd, Erwin posted the following on Facebook:
Last night as I left for work I had my 2 kids crying for me not to go to work. I don’t think I’ve ever felt the way I did last night. And then I watched people I know and others I care about going into harms way. I love my police family like my own…..
So when you share posts and things on Facebook I’d really appreciate if you’d THINK before doing so. I’ve seen so many black lives matter hashtags in these posts. Just to let you know — they are terrorists. They hate me. They hate my uniform. They don’t care if I die.”
Erwin urged anyone who backed BLM to unfriend her. Five police department employees expressed support for the post. One was Sergeant Mandy Grey, another 20-year veteran. Erwin’s post was followed by protests in the township, a petition with hundreds of signatures demanding the local police force be disbanded and a public apology from the Police Chief.
Erwin lost her job after a town committee voted unanimously to accept a hearing officer’s recommendation she be terminated. Sergeant Grey was demoted and suspended for six months. The other four department employees received written reprimands.
According to news reports, appeals were filed in court on behalf of Erwin and Grey citing First Amendment concerns. I was unable to find the actual appeals online. Erwin and Grey may have other grounds for appeal – for example, if comparable speech has not been punished as harshly – but they are unlikely to prevail on First Amendment grounds.
The law
FYI – private employees have no First Amendment protection against employers’ retaliation for what they say. The First Amendment protects us from the government intruding on our non-criminal speech. Private employers aren’t the government.
For public employees, the U.S. Supreme Court recognizes when their employer takes actions against them for speech, it is the government, but,
[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”
An employer shouldn’t have to pay employees whose speech undermines the agency’s mission, especially when that employer – the government – is supposed to represent everyone. Also, public employees derive benefits from their government employment. So, the U.S. Supreme Court held in Pickering v. Board of Education (1968), that for a public employee’s speech to be protected, it must be about a matter of “public concern.”
“Public concern” hasn’t been defined. Some court opinions suggest it includes government operations. However, courts look at the context of the speech, not just the content. So, if an employee is griping about a supervisor, policy, or operation, and it’s mainly a personal gripe, it’s likely not protected – even if it touches on some government operation.
Even if the speech is about a “public concern,” Pickering held a court must balance the interest of the employer in delivering the public service it does against the employee’s interest in the speech.
I don’t think a court will find Erwin’s opinion about BLM protesters is a matter of “public concern.” The court can sidestep that question and hold even if the post was about a “public concern,” it fails the balancing test.
Courts have held the critical mission of police departments can be undermined by a lack of public trust and confidence. The Hopewell Township can point to the protests and petition that followed Erwin’s Facebook post as evidence of such undermining.
Beyond the law
People have developed strange notions about posting on social media. I wonder if Officer Erwin and her supporters would’ve felt okay expressing their sentiments on a sandwich board or through a bullhorn while walking their township streets? If not, why did it feel okay to do so on Facebook – a bulletin board in the sky with 2.85 billion viewers?
I wish Officer Erwin had vented to some friends in person. Last summer was very stressful for many. It wasn’t just the strife of some highly publicized police shootings. We were and continue to struggle with a pandemic and highly polarized, partisan politics. It strains the heart.
I wish I could’ve listened to Officer Erwin vent in person. I could’ve acknowledged her fears, her stress, the demands of the job. Sometimes just being listened to can help.
Maybe after being listened to, she could’ve listened. I might’ve pointed out that her broad-brush description of all BLM protesters as “terrorists” wasn’t unlike what she felt the protesters were doing to her – judging her without seeing the human underneath the uniform. Maybe some of them felt like she did.
I wish I could’ve listened and talked to Officer Erwin before she posted on Facebook. Maybe I could’ve gotten her to take her own advice,
So when you share posts and things on Facebook I’d really appreciate if you’d THINK before doing so.”
NEXT: Public employee speech and consequence of unlawful action
