By Robin Shea
Many lawyers who represent private sector employers are familiar with the (some might say “harsh”) position on social media policies taken by the National Labor Relations Board during the Obama Administration. The NLRB’s position is that overly vague social media policies have a “chilling effect” on employees seeking to exercise their rights to engage in concerted activity under Section 7 of the National Labor Relations Act.
Under the NLRB’s analysis, social media policies that require “courtesy,” or that prohibit employees from “disparaging” the company or its management, or posting in a way that “adversely reflects on the company” violate Section 7. This applies to both union and non-union employers.
But the NLRA doesn’t cover federal, state, or local government employees, which is great if you represent a government employer . . .
. . . right?
Apparently not. Although public employers do not have to worry about the NLRA, they do have to worry about this little thing called “the First Amendment.”
A recent decision from the U.S. Court of Appeals for the Fourth Circuit, Liverman v. City of Petersburg (Virginia), indicates that there may not be much practical difference between a First Amendment analysis of public employer social media policies and a Section 7 analysis of private employer policies.
Liverman v. City of Petersburg
The plaintiffs in Liverman were two police officers who engaged in a conversation on Facebook during non-working time that criticized the City’s practice of promoting inexperienced “rookie” cops to training positions out of an excess of “political correctness.” Others – for the most part current or former law enforcement officers for the City – joined the conversation by “liking” the plaintiffs’ comments. The plaintiffs were disciplined for violating the City’s policy that, among other things, prohibited “dissemination of information ‘that would tend to discredit or reflect unfavorably upon the [Department] or any other City of Petersburg Department or its employees.’” (Bracketed material in Court’s decision.)
The policy also had a “negative comments” provision that stated as follows:
Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law.
Although the policy made an exception for discussion of certain matters of general interest or of public concern, it provided that each such situation would be reviewed on a “case-by-case basis” and that any violations of the policy would be submitted for possible disciplinary action.
A federal district judge in Virginia found that the social networking policy violated Plaintiff Liverman’s First Amendment rights but that the police chief had qualified immunity for his decision to discipline Mr. Liverman. The judge found that co-Plaintiff Richards was speaking purely on a matter of personal concern and, in any event, that the police chief had qualified immunity.
A three-judge panel of the Fourth Circuit consisting of Judge Wilkinson (author of the Court’s opinion), Judge Traxler, and U.S. District Court Judge Bruce H. Hendricks of South Carolina (sitting by designation), agreed that the policy violated Mr. Liverman’s First Amendment rights but found that it violated Mr. Richards’ rights as well. Calling the City’s policy “a virtual blanket prohibition on all speech critical of the employer,” and noting its “astonishing breadth,” the panel said that the policy “squashes speech on matters of public import at the very outset.” Moreover, the “public concern” provision was not enough to save the policy in light of its overbroad “negative comments” provision.
In light of the above, it is not surprising that the panel also found that the discipline administered to the plaintiffs violated their First Amendment rights. Finding that both Mr. Liverman and Mr. Richards were speaking on matters of public concern – that is, “the propriety of elevating inexperienced police officers to supervisory roles” – the plaintiffs satisfied the first element of the Connick/Pickering analysis. Also finding that there was no genuine issue regarding the second element (that the City reasonably apprehended substantial disruption to the workforce) or the third (that the plaintiffs were in fact disciplined for speaking on matters of public concern), the Court found that the discipline was unlawful.
Finally, the panel found that the First Amendment violation was so blatant that the Chief of Police was not entitled to qualified immunity.
(The panel did, however, find in the City’s favor on the plaintiffs’ retaliation claims based on internal investigations of wrongdoing that were not related to their First Amendment activity.)
The lesson from the Liverman decision is that public employers are not immune from the consequences of overly broad, vague policies regarding use of social media. Although they don’t have to worry about the NLRA, they must take care to ensure that their policies – as written, and as applied – do not violate employees’ First Amendment rights. Public employers in North Carolina and elsewhere in the Fourth Circuit should review their social media policies and update them as necessary.