Here at IT-Lex, we often report on the perils of posting employment related information on social media. Fact: it’s never a good idea to complain about your boss or your job on Twitter or Facebook. And if you needed further convincing, the Eleventh Circuit recently confirmed that the termination of a public employee for a Facebook post does not automatically violate the employee’s First Amendment rights.
Maria Gresham, a police officer, took to Facebook to criticize fellow officer, Barbara Floyd, for unethically interfering with her investigation. Although Gresham’s profile was “private,” the department discovered the post and opened an investigation into Gresham’s violation of department policy, which precluded her from a promotion. The policy in question requires that “any criticism of a fellow officer ‘be directed only through official Department channels, to correct any deficiency, and . . . not be used to the disadvantage of the reputation or operation of the Department or any employees.’”
Gresham sued the city and the police department, arguing that the department retaliated against her for First Amendment speech. The district court granted summary judgment to the department, and the Eleventh Circuit confirmed, concluding that the “legitimate interests of the Department outweigh[ed] [Gresham’s] interest in speaking in [that] manner.”
Generally, a government employee cannot be disciplined for speech if the speech meets the Pickering test: (1) plaintiff’s speech involved a matter of public concern; (2) plaintiff’s interest in speaking outweighed the government’s legitimate interest in efficient public service; and (3) the speech played a substantial part in the government’s challenged employment decision. If the plaintiff proves that the speech is protected under those three prongs, the defendant must prove it would have made the same decision even in the absence of the speech.
The court assumed that the speech was a matter of public interest and, instead, focused on balancing the plaintiff’s interest in the speech and the government’s interest in the efficient operation of the police department. The court noted that “it is well established that a police department is a quasi-military organization and that ‘comments concerning co-workers’ performance of their duties and superior officers’ integrity can directly interfere with the confidentiality, espirit de corps and efficient operation’ of the department.”
Gresham attempted to argue that there was no evidence of a disruption, but the court rejected the argument, reasoning that an actual disruption was not required. The court also took a common sense approach, noting that “common experience teaches that public accusations of unethical conduct against fellow officers would have a natural tendency to endanger the espirit de corps and good working relationships amongst the officers.”
The court also concluded that Gresham’s interest in the speech was not very strong, reasoning that it was “not  calculated to bring an issue of public concern to the attention of person with authority to make corrections, nor was its context one of bringing the matter to the attention of the public to prompt public discussion to generate pressure for such change.” Instead, she was merely “venting her frustration.”
The court seems to rely largely on the fact that Gresham worked for a “quasi-military” organization (the police department). It’s unclear whether the court would reach the same result if Gresham worked in the mayor’s office. But the court also makes the case that Gresham’s interest in the speech was not very strong because she was merely venting her private frustrations. If Gresham’s Facebook wasn’t private, she may have been able to argue that she was attempting to bring an important issue to the attention of the public. In any event, it seems that having her profile “private” actually hurt her in the end.