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Monday, March 24, 2014

Public Employees, Facebook & the First Amendment

Government entities have been establishing and maintaining a pretty active social media presence, with many cities posting about community events on Facebook, tweeting emergency information, and uploading meeting videos on YouTube. And, government employees are just as active on social media as employees in the private sector. So, what is the difference? That would be the First Amendment, which can affect how government can regulate its own social  media presence and how it deals with its employees' social media activities.

Surprisingly, there have been very few cases on the First Amendment and social media use.  In 2012, the Honolulu Police Department was sued for removing negative comments from its Facebook page - that lawsuit is still pending.  Recently, a Court of Appeals ruled in favor of government employees who had been terminated by their boss for "liking" his opponent's campaign page.  And now, we have a new lawsuit filed against Maui County by a county employee who claims the county is violating his First Amendment rights by pressuring him to shut down is Facebook page, where he reports on county issues.  Mamuad v. County of Maui (Dist. Haw. Mar. 3, 2014). You can read the complaint here.

Mamuad is a part-time administrative assistant and volunteer liquor commissioner for Maui County.  In 2013, he established a Facebook page called "TAGUMAWatch." which he later renamed to "MAIUWatch, where he reports on news items of interest in Maui County.  Many of his posts (and public comments) were about the activities of Maui County police officer Taguma, an alleged prolific ticket-writer. Athough Mamuad did not advertise his involvement with the Facebook page, the county learned of the page (remember what I say - someone will always rat you out, and it's usually one of your "friend" co-workers).  The county attorney met with Mamuad and told him to shut down the page.  He refused to do so, and became the subject of a harassment complaint filed against him claiming that his Facebook activities amounted to cyber-bullying.

In his lawsuit against the county, h claims that the county's workplace policies against cyber-bullying violate his constitutional right to freedom of speech. He also claims that the county has "chilled" his First Amendment speech by threatening to terminate him if he does not shut down the Facebook page or moderate his speech.  
In deciding whether the county has violated Mamuad's First Amendment rights, the court is going to apply the Ninth Circuit Court of Appeals test for "public employee speech." That test will require the county to consider the following:
  • Were Mamuad's postings on a "matter of public concern"?  
  • Did he speak as a private citizen or public employee?  
  • Was his speech a motivating factor in any adverse employment action? 
  • Did the government have an adequate justification for treating Mamuad differently from members of the general public? 
  • Would the government have taken the adverse employment action absent the protected speech?
Many government employers are understandably unsure about their legal limitations in regulating employee activities on social networking sites when those activities negatively impact the government or other employees. This case may provide some guidance to government employers, assuming it doesn't settle before a court issues a ruling.

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