By Shereen Siewert | Wausau Pilot & Review
A new social media policy under discussion this week prohibits city employees from posting statements on social media that could “compromise public confidence” in Wausau, a rule that – if violated – could result in termination.
The proposed social media policy is one of several items on the Human Resources agenda for Monday and applies to written and oral statements, websites, conversations, blogs, email and social networking sites. Among the standards: Employees may not post information to the Internet or any public or private forum that would tend to discredit or reflect unfavorably upon the city or any city employee.
The city may monitor employee posts, the policy goes on to state. “Violations of this policy may lead to disciplinary action, up to and including termination.”
Bill Lueders, president of the Freedom of Information Council, said the city needs to be careful about including language in its policies that could be interpreted as a constraint on whistleblowing.
“It is possible that pointing out problems with waste, fraud, and abuse could diminish public confidence in city functions, and perhaps the city ought to make it clearer that this is not what it means by this rule,” Lueders said.
Though the rules may feel Orwellian, the First Amendment implications are unclear. Private companies and employers can discipline or fire an employee for what they post on social media, but government employees pose a trickier question.
Lueders pointed to a case in Wisconsin in which a Milwaukee Public School counselor was fired after allegedly making vulgar comments at an anti-trans rally in April 2022. The teacher, Marissa Darlingh, fought the termination in court and said she has the right to express her views as a private citizen.
In writing about that case, Lueders reached out to American Civil Liberties Union National Legal Director David Cole, who explained that public employees can indeed be terminated for speech off the job “if it undermines their ability to perform their jobs.”
The American Bar Association points to a 2016 case in which a Nashville 911 operator wrote a public-facing Facebook post following the election win of Donald Trump: “Thank god we have more America loving rednecks. Red spread across all America. Even n******* [edited] and latinos voted for trump too!”
The Metropolitan Government of Nashville fired the operator after complaints from co-workers and others. So, she sued for a violation of her rights.
But “The Sixth Circuit held the First Amendment did not provide a basis to have that employee’s speech protected,” said James Carlos McFall, a partner at Jackson Parker, LLP in Dallas, who specializes in First Amendment media and entertainment litigation.
“The mere fact that one supports a political party is not in and of itself a means for which the government can terminate an employee,” he explained. “But here, the ‘speech’ involved a reference to not just ‘rednecks’ but the ‘N word,’ which the Sixth Circuit expressly stated is the ‘most vile and inflammatory word in the English language.’”
“[The operator’s post] had a detrimental impact on not just the employee’s ability to work with her colleagues – but also the public’s perception of the agency itself,” McFall continued. “And as a result, the court held that the employer was allowed to terminate the employee without violating the First Amendment.”
An advocate at the Texas legislature on First Amendment and open government issues, Laura Prather of Hanes and Boone in Austin, Texas, said most free speech cases hinge on the answers to the questions: Were you acting as a citizen? And, were you speaking about a matter of public concern?
Then, even if so – “the court still has to balance the interest of the individual with the government’s interest in promoting the efficiency of its public service,” she said.
According to Prather, the courts will also look at how the speech affects the place of employment – including the harmony of the workplace and whether the speech impedes the performance of the speaker’s duties, among several areas of impact.
But one thing is clear, she said.
“Speech that is made in the course and scope of the employee’s official duty is not considered speech made as a citizen,” Prather said.
Professor Theodore Hirt of George Washington University Law School cautioned all public sector employees to mind their social media. As posts go viral and inevitably become digitally manipulated in some way – “Who knows what will be done with your words or the characterization of your words.”
And in the end, you could be held responsible, the ABA stated.
See the proposed policy on the agenda below, beginning on p. 55. The Human Resources Committee will review the proposed changes at 4:45 p.m. Monday at City Hall. Any decision is subject to full council approval.
