Free Speech, Social Media, and Employment Law for Government Employers

by Michelle D. White

In the age of social media, it has become much easier for people to express themselves quickly and to a wide audience. As a result, public employees’ social media activity has become a growing area of concern for government employers. Unlike private employers, government employers must consider First Amendment protections when developing social media policies or managing the impact of employees posting on social media. Even though the First Amendment protects freedom of speech for public employees, those protections are not unlimited.

Legal Standard

The First Amendment prohibits government actors from restricting speech based on content or viewpoint. This includes public employers who seek to restrict their employees’ speech and participation in social media. However, public employers are able to restrict some employee speech by virtue of their employment without interfering with their First Amendment rights.

Case-by-Case Evaluation

Whether an employee’s social media posts and speech are protected are dependent upon the facts of the specific circumstances. When evaluating whether a government employer may restrict or discipline an employee for social media speech, courts typically follow a formula in evaluating the specific circumstances. The U.S. Supreme Court has developed a balancing framework that allows government employers to regulate employee speech under certain conditions, especially when that speech interferes with workplace efficiency, discipline, or public trust.

Step 1: Was the employee speaking as a private citizen or as part of their official duties?

As a threshold issue, a determination must be made about whether the speech was made as a private citizen or pursuant to their official duties as an employee. If the speech is part of the employee’s job responsibilities, the government can restrict or discipline the employee without violating constitutional rights.¹ In Garcetti, the Court held that employees are not speaking as private citizens when employees make statements pursuant to their official duties, and therefore their speech is not protected by the First Amendment.

An employee whose speech is made pursuant to their official duties is not protected from discipline based on the First Amendment. However, if an employee is speaking as a private citizen, the next step will be to determine whether the speech addresses a matter of public concern.

Step 2: Is the speech on a matter of public concern?

The next key issue in evaluating employee speech is determining whether the speech addresses a matter of public concern. Whether an employee’s speech addresses a matter of public concern is determined by the content, form, and context of a given statement.² Generally speaking, matters of public concern include topics such as government operations, public safety, political issues, social justice, or policy debates. Private concerns such as workplace disputes, grievances, or personal complaints are not protected. While the determination is fact-dependent, some factors that the Court considered in Connick included:

• whether the speech was merely an extension of an employment dispute;
• whether the speech occurred at work or on the speaker’s own time and outside of the working areas of the office;
• whether the employee “[sought] to bring to light actual or potential wrongdoing or breach of public trust” on the part of superiors.

These considerations were dependent upon the factual considerations of the content, form, and context of the speech in the specific circumstances of the case. It is important to note, however, that the palatability of the speech is not a factor which weighs on this analysis. In other words, speech may be reprehensible to all who hear it, but the subject matter may still be a matter of public concern.

Employee speech on a matter of private concern is not protected from discipline based on the First Amendment. However, if the employee is speaking as a private citizen on a matter of public concern, then the employer’s interest in regulating the speech must be weighed against the employee’s interest in commenting on matters of public concern.

Step 3: Does the government employer’s interest outweigh the employee’s free speech rights?

Even protected speech may be subject to discipline if it causes significant disruption or undermines the functioning of the public agency.³ If the employee is speaking as a private citizen on a matter of public concern, then the court applies the Pickering balancing test. The court weighs the employee’s interest in commenting on matters of public concern against the government employer’s interest in promoting workplace efficiency, discipline, and loyalty.

Under the Pickering balancing test, the employer may restrict otherwise protected speech if it:

• Disrupts discipline or harmony among coworkers
• Undermines close working relationships where loyalty and confidentiality are essential
• Interferes with the agency’s mission or effectiveness
• Damages the public’s trust in the agency
• Impairs the ability of the employee to perform their duties
• Courts have given government employers more leeway in regulating speech that directly impacts operational effectiveness, particularly in sensitive or public-facing roles (e.g., law enforcement, education, public health).

Special Considerations for Social Media

When evaluating social media posts, there are a few additional factors that can be taken into consideration under any of the steps of the balancing test. Speech made on a “private” or friends-only social media account may still be subject to scrutiny if it becomes public or is shared widely. If an employee includes a disclaimer in their post or in their social media profile stating that the views are their own, this may help clarify that the speech is personal; however, if the content appears to reflect official duties or damages the agency’s credibility, it may not be fully protected.

Best Practices for Public Employers

To navigate these issues proactively, public employers should:

• Develop a clear, content-neutral social media policy that outlines expectations for employees, consistent with constitutional protections.
• Train managers and HR personnel on First Amendment issues in the employment context.
• Evaluate discipline cases on a case-by-case basis, using the balancing test.
• Consult legal counsel before taking adverse action based on employee speech, particularly when it involves matters of public concern.

¹Garcetti v. Ceballos, 547 U.S. 410 (2006).
²Connick v. Myers, 461 U.S. 138 (1983).
³Pickering v. Board of Education, 391 U.

Michelle White is an Associate in the Firm’s Employment Law Practice Group. If you have questions related to this article or other employment law matters, please contact Michelle at 512.322.5821 or mwhite@lglawfirm.com.