Facebook and the First Amendment

August 28, 2018

Caroline Dorsey, GMA Assistant General Counsel

This article appeared in the August 2018 issue of the Georgia's Cities newspaper.
Can your employer discipline you for a social media post?

Tucker v. Atwater et al.
A Tift County teacher, Kelly Tucker, received a five-day suspension after the school district she worked for received complaints of an offensive and racially charged Facebook comment.
After receiving the complaints and holding a hearing, the school system suspended Tucker and required her to participate in training. Instead of pursuing an administrative appeal, Tucker filed a lawsuit against a few school system officials claim­ing her First Amendment rights were violated. Be­cause Tucker failed to pursue an administrative appeal the only issue for the court to decide was whether the school district officials were protected by qualified immunity. As defined by Pearson v. Callahan, qualified immunity balances two impor­tant interests—the need to hold public officials ac­countable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.
The Georgia Court of Appeals held that the school district officials were entitled to qualified immunity “because they did not violate any clearly established law.” The Georgia Supreme Court declined to hear the case on appeal citing Tucker’s inability to pre­vail against qualified immunity. However, Justice Peterson recognized the importance of the First Amendment issue. In his concurring opinion, he cautioned government officials to tread cautiously before taking action against employees for speech that does not occur during the work day and does not involve his or her employment.
Peterson’s concurring opinion suggests that, had the First Amendment issue been before the Court, Tucker’s punishment may have been a violation of her Constitutional rights. Peterson acknowledged the First Amendment balancing test which evaluates the “the interest of the teacher, as a citizen, in com­menting upon matters of public concern and the in­terest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees”
Pickering v. Board of Education, 391 U.S. 564, 568 (1968).
This test has been cited in numerous cases since Pickering although only one such case involved statements that were made outside of work hours and were unrelated to employment. Because of this and other reasons, Peterson questions whether the Pickering test would apply in instances such as Tucker’s Facebook comment.
Justice Peterson’s opinion provides valuable in­sight as to how the court might consider a similar case. As always, consult your city attorney before taking an adverse employment action that may im­pair an employee’s rights under the First Amend­ment.

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