A Reminder That There Are Big Limits to Employee Free Speech on Social Media

By Eric B. Meyer

One of the finest employment-law bloggers, Daniel Schwartz, recently marked the eight-year anniversary of his Connecticut Employment Law Blog with a post about the three most notable changes in employment law over that span.

No. 1? It was social media.

While for us bloggers, social media presents the lowest-hanging clickbait fruit, its metamorphosis and overall effect on the workplace is undeniable. Social media presents a slew of issues, from hiring (all those state laws on social media passwords) to firing (like the time those Facebook postings bungled an employee’s FMLA claims) and so much more.

A most infamous social media firing

Speaking of social-media related firings, one of the most notable ones was local schoolteacher Natalie Munroe.

I’ve blogged about Ms. Munroe — a lot. She’s the one with the blog posts describing the atrocious comments she would like to make to students, but can’t. (Stuff like: “A complete and utter jerk in all ways” and “frightfully dim.”)

Most recently, I posted here about how a Pennsylvania federal court concluded that the interest of Ms. Munroe’s (former) employer in maintaining the integrity of the teacher-student relationship (and otherwise keeping the workplace free from the mega-disruption that Ms. Munroe’s blog posts created) trumped Ms. Munroe’s supposed First Amendment claims to spew this crap.

Ms. Munroe appealed that decision to the Philadelphia-based Third U.S. Circuit Court of Appeals, where she fared no better. Indeed, the Third Circuit also concluded that “her speech was likely to cause — and, in fact, did cause — disruption and that, under the circumstances, the School District’s interest outweighed Munroe’s interest, as well as the interest of the public, in her speech.”

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Not much employee free speech rights on social media

Had Ms. Munroe held a private-sector job, none of this would be an issue. That is, there are no free-speech rights outside of public employment.

Even in the public sector, clearly, there are limits to free speech. That is, one must consider the interests of the speaker and the public in the speech at issue versus the employer’s interest in promoting efficiency and avoiding disruption.

Where speech may hinder working relationships or impair discipline, the employer’s interest prevails.

Ultimately, this tweet captures the essence of it: “You have the right to say whatever you want, but you also then have to face the consequences….

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.