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Thursday, November 5, 2020

6th Circuit Court of Appeals Rules on Social Media Case

Early last month, the 6th Circuit Court of Appeals issued a ruling in a case filed by a City employee who was terminated for posting a comment on Facebook after the City determined that the comment was racially charged. In Bennett v. Metropolitan Government of Nashville and Davidson County, the Court of Appeals upheld the government employer's termination of the employee for the social media conduct. 

In 2016, Bennett, a government employee, posted a racial slur on her personal Facebook account right after the 2016 General Election. Bennett was an emergency dispatcher of the Metro Government Emergency Communications Center (ECC). Bennett’s Facebook referenced that she was a Metro Government employee and included information that she was a dispatcher at the ECC. After friends expressed concerns about the post, she deleted it from her Facebook post; however, several of her coworkers had already seen the post before it was deleted and reported the activity to department supervisors. 

When approached by supervisors about the incident, Bennett stated she made the comment in jest. Supervisors expressed concern about the racially charged comment and noted its impact on an agency that regularly interacts with the public. Bennett was placed on paid administrative leave while an investigation was conducted. An administrative hearing found that Bennett violated three provisions of the ECC's social media policy, and she was terminated.

Bennett filed a lawsuit against her employer in federal court claiming that the termination violated her First Amendment rights. The case went to trial, and a jury found in Bennett's favor, holding that her Facebook comment was not reasonably likely to impair discipline by Bennett’s supervisors at ECC, interfere with the agency’s orderly operation, or impede Bennett’s job duties. The jury awarded her $6,500 in back pay and $18,750 for humiliation and embarrassment. 

ECC appealed to the 6th Circuit Court of Appeals, which overturned the district court's ruling in favor of Bennett. The Court of Appeals applied the Pickering balancing test (a Supreme Court ruling that balances the weight of an employee’s speech with the weight of a government agency’s ability to maintain operations) and concluded that Bennett’s use of a racial slur was not protected speech under the First Amendment. 

The Court of Appeals also noted that the record showed that Bennett exhibited little to no remorse for her use of the slur. She even called her fellow employee’s hypocrites and stated she would not apologize because some employees took her use of the slur the wrong way. The Court also found that Bennett’s use of the slur was detrimental to the ECC’s close working relationships, and the use of the slur “detracted from the mission of ECC” as an agency that provides vital services to constituents. A critical determination in the case was that Bennett’s comment was made on her public-pacing profile while listing her employer as ECC. The court found that if her Facebook profile were private, it would have diminished the argument for her termination.

Finally, the Court rejected Bennett’s argument that the comment was political because she used the slur while discussing the outcome of the presidential election the day after the results were released. Her employer conceded Bennett was making a political statement on the post but argued that use of the slur was “not purely political” and should not have garnered a high level of protection from the trial court. The Court of Appeals agreed and found that Bennett’s speech did not reach the highest level of protection. 

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink


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