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Weekend Roundup: Employee’s Offensive Speech on Social Media Not Protected

A recent court case decision sided with an employer on a matter that has become a rising concern in the workplace: offensive speech on social media. While the monitoring of employees’ online communications can run into the First Amendment rights of public-sector employees, a public department’s interests in managing its internal affairs can outweigh the public interest of an employee’s speech. This is the case when employees make posts on social media that are offensive, according to 4th U.S. Circuit Court of Appeals.


A battalion chief of a Department of Fire and Rescue Services in Maryland filed a lawsuit against his employer after he was fired for an offensive comment he made on his personal Facebook page. The post referenced inciting violence against others with liberal political beliefs.


The department had drafted a social media policy that prohibited employees from “posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or position of the department, Howard County or officials acting on behalf of the department or county.”


In following this policy, the department directed the battalion chief to remove posts or comments from his page that were inconsistent with the department’s social media policy. He deleted his post, but continued to post the following: “To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirely in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any of them with you. If you’re not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.”


This was also seen as a violation of the social media policy, and the employee was terminated. He later filed suit against the department. He alleged that he was discharged for exercising his First Amendment free-speech rights and that the department’s social media policy was unconstitutional.


The 4th Circuit ruled that while at least some of the content the employee posted was addressing issues of public concern, the department’s concern in managing its internal affairs outweighed public interest due to his fellow employee’s concern with this behaviour.


If your company has a social-media policy or is considering drafting one, remember to consult an attorney familiar with workplace law before implementing it.


Court Case: Grutzmacher v. Howard County, Md., 4th Cir., No. 15-2066 (March 20, 2017).

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