Federal, state, and local government organizations embraced social media as a means to generate citizen engagement. But how does social media relate to constitutional freedom of speech for public employees?
Although an employee may work for a public entity, they are still a citizen of the United States and have free speech rights like any other citizen. However, with work-life lines becoming more blurred, there are some additional concerns about First Amendment issues when a public employee is using social media. For example:
- What are the First Amendment issues if a public employee is using social media during working hours or on agency owned equipment?
- What are the First Amendment issues if a public employee is using social media on personal time and using personal equipment?
One important thing to be aware of when using your own private equipment - if you are doing public business on your own equipment, then that equipment and contents is subject to GRAMA, be it a computer, smart phone, etc.
Of course, as mentioned, the work-life boundaries are not so clear.
For example, it is very possible that an employee is using their private
social media service while on work time or an employee may use their own equipment for a work communication.
Employee Access and Use
An agency’s approach regarding employee access to social media run the gamut from absolutely no access during working hours to full access. A question arises about time spent and production reduction. Social media tools will become a production tool for public customer service, information sharing and other important work functions. Just like any other office tool (ie. phone and web) social media can be a time waster. In fact, time can be wasted just chatting in a room with colleagues. Instead of focusing on the tool, the focus might be on whether the work is accomplished or not. If there is a problem with performance, then it can be addressed the same as any other performance issue.
Issues arising when a public employee is using social media in the public context could mostly be covered by existing internal policies. These policies often include: transparency, honesty, privacy, professionalism, privacy, security, and other issues that may be covered by email policies, employee conduct policies, or other computer related policies. It may be important to remind employees that these current policies cover new public activities related to social media, regardless of whether on agency or personal equipment, or on work or personal time.
Government employees do not forfeit their First Amendment rights by virtue of their employment. Speech by government employees, however, may be regulated to a greater extent than the general population. Government may restrict employee speech to protect legitimate government interests under certain circumstances.
Free speech issues usually arise in context of disciplining or terminating an employee for his or her speech. Courts apply the following three part balancing test 1 to determine if the First Amendment protects an employee from being disciplined for their speech:
Part 1: Is the person speaking on a matter of public concern? If not, then free speech protections do not apply.
Part 2: Is the person speaking as a citizen or as a public employee? If speaking as public employee then free speech protections do not apply.
Part 3: Do the interests of the government in promoting efficient operations outweigh the interests of the employee in commenting on matters of public concern? If yes, then employee may be disciplined for speech.
Be clear about your expectations on how employees conduct themselves in their private lives when their employment agency is discussed, posted, or listed.
Some public organizations require that if an affiliation with the agency is listed, then the employee conduct should be the same as if in the work environment, and with the same policies concerning employee conduct, regardless of whether on agency or personal equipment, or on work or personal time.
The State of Utah, Department of Technology Services has a related clause in the
“State of Utah Social Media Guidelines” 2
“Perception. In online social networks, the lines between public and private, personal and professional are blurred. By identifying yourself as a State employee, you are creating perceptions about your expertise and about the State by legislative stakeholders, customers, business partners, and the general public, and perceptions about you by your colleagues and managers. Be sure that all content associated with you is consistent with your work and with the State's values and professional standards.”
The key is that the more clear you can be with your internal policies, then the fewer problems there will be in this area. It is recommended that you identify existing policies that apply, prior to creating any new social media specific policies. Also, make sure there are no conflicts between your current policies and any new policies you are creating.
The key internal social media policy areas to address are:
- Employee access to social media
- Employee use during working hours
- Policies regarding handling of electronic information (email, social media, web, phone texting, etc) including security, privacy, information accuracy, etc.
- Policies concerning public record law, open meetings law, public forums, and free speech
- Employee conduct both in public and private contexts
Recommended policy actions are:
- Review current internal policies to determine issues that are already covered
- Create new policies where needed
- Review to ensure there are no conflicts between policies
- Communicate all related policies to employees
Notes: This paper has been created to provide ideas and context for using social media in the public sector and is not intended to be a legal authority on policy issues. Please contact your legal expert to discuss any legal or policy issues prior to launching a social media program.
This paper is part of a series published by the Center for Public Policy & Administration at the University of Utah. To view other related papers, please go to: http://www.cppa.utah.edu/policy_publications.html#egov