Court Dismisses Free Speech Lawsuit Involving Employee's Social Media

Court Dismisses Free Speech Lawsuit Involving Employee's Social Media

  Wednesday, January 17, 2018    Julie Tappendorf

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We have written a number of blog posts about employee activity on social media and the extent to which an employer can discipline, or even terminate, an employee for social media activities. That is the subject of today's post which was first published on Ancel Glink's labor & employment blog, The Workplace Report with Ancel Glink. You can read the original post here: Court Dismisses Free Speech Suit by Deputy Fire Chief against Calumet City. 

Last week, an Illinois federal district court dismissed a suit against the City of Calumet City after it discharged a Deputy Fire Chief allegedly for a series of critical and political remarks he made on Facebook. Banske v. City of Calumet City, 17 C 5263, 2018 WL 372145 (N.D. Ill. Jan. 11, 2018). According to news reports about the social media posts, his comments included the following:

"It's bad enough that I have spent a lifetime being called a racist by idiots on the left but now the idiots like Mitt Romney are calling me one too because I support Trump. Hey Mitt-go F yourself."

"Protest anything you want but if you interfere with my right to travel or get to my kids or my home you're gonna get run over. And I really don't care if you get hurt."

After the City was made aware of the posts, the Deputy Chief claimed he had a phone conversation with the City's personnel director and the assistant to the Mayor about his Facebook commentary but was not directed to stop posting. Later, according to the Deputy Chief, the Fire Chief informed him that he was being discharged “due to concerns over his private political views” on his Facebook page.

Subsequently, the Deputy Chief filed a lawsuit in federal court against the City, the Mayor, and others alleging that his First Amendment rights were violated when he was terminated. 

In considering the Deputy Chief's claims, the district court analyzed the legal standards for public employee speech under the First Amendment. While public employees have a right to engage in free speech, that right is tempered by a few factors. To establish a First Amendment retaliation claim, a public employee must show that:

1. he engaged in constitutionally protected speech; 
2. he suffered a deprivation because of his employer's action; and 
3. his protected speech was a “but-for” cause of the employer's action.

In dismissing the Deputy Chief's case, the court determined that the Deputy Chief did not establish that his speech was constitutionally protected. One of the significant issues for the court was the plaintiff's position as Deputy Chief. The court noted that an employee who is considered a “policymaker” in the organization may be discharged “when that individual has engaged in speech on a matter of public concern in a manner that is critical of superiors or their stated policies.” The outcome may have been different had the Deputy Chief engaged in the political commentary while still a firefighter, and not as a Deputy Chief. But, the law clearly sides with a public employer’s right to demand a certain amount of loyalty and circumspection in an employee’s speech when that employee becomes “management” or is involved in the creation or effectuation of policy within the organization.

Free speech issues are still tricky and the rules can apply differently depending on the facts of the particular situation. Employers should always look at the position and duties of the employee making critical statements, where the statements were made, along with whether the statements are negatively affecting the organization. Employers are rightfully sensitive to negative statements on Facebook because of the possible widespread dissemination  of the remarks. Each case must be evaluated individually though to determine the lawful response. It is good practice to consult with labor and employment counsel before taking action against your public employee as a result of his or her negative statements about the organization or officials.

Original Post Authored by Margaret Kostopulos, Ancel Glink