Having employees can be a difficult thing and create all sorts of problems. A business wants to control how it is perceived by its customer base and by the public, and this has lead to a good number of recent accounts of job applicants being asked for their social media passwords as a condition of employment. It comes down to employers wanting to limit what is said about them and make sure it is all positive. As antithetical as that may seem to free speech, there’s nothing legally wrong with it. A private employer can make it a rule that you don’t badmouth them if you want to keep your job.
But the same doesn’t go for governmental agencies. It’s a little thing called the First Amendment. Where it says “Congress shall make no law . . .,” you might as well substitute “Government shall make no rule . . .” because both Congress and the U.S. Supreme Court long ago applied the First Amendment to local government entities through the mechanism of the Fourteenth Amendment and several civil rights statutes. This is the law of the land: governmental agencies don’t get to tell their employees what they can say about their employer, as long as they are talking about matters of public interest.
But someone please tell Harris County Sheriff Adrian Garcia because, apparently, he didn’t get the memo. According to a new lawsuit filed by Carl Pittman, a Harris County Sheriff’s deputy (and electoral rival to Garcia), the Sheriff’s office (HCSO) has a new social media policy that, among other things, prohibits any employee, through a use of social media, from causing “undue embarrassment” to the office or “damag[ing] the reputation” or—here’s the kicker—“erod[ing] the public’s confidence in the HCSO[.]” In other words, don’t say anything less than complimentary about us on Facebook, or you’re outta here because the public might not like us, if you do. Here’s Pittman’s federal court complaint, and here’s the HCSO policy.
Government employers have some authority over what their employees say about the agency. The U.S. Supreme Court, in a case called Garcetti v. Ceballos, held that government employees don’t speak as “citizens”—and, thus, lose First Amendment protection—when their speech falls within their usual job duties. In those cases, they are acting as employees, not citizens. That means that how you do your job is between you and your employer, even though your employer is the government. You need to toe the party line, just like any private employer would expect.
But the same thing doesn’t hold when you step outside of the employee’s area of responsibility. In a more recent case called Lane v. Franks, the U.S. Supreme Court held that, just because an employee learns facts in the course of his employment, that doesn’t mean those facts are part of his job duties. And Lane would seem to make the HCSO social media policy highly questionable. That policy is not just about the internal workings of the agency. It’s about the public perception, as expressed by the people in the best position to inform that perception, and the HCSO wants to make sure the dirty laundry doesn’t get hung out.
Nevertheless, don’t think that Garcia’s office is completely unhip to what all you kids are doing on that internet thing these days. The policy also notes that “HCSO endorses the use of social media for pre-employment background investigations, crime analysis, situational assessments, criminal intelligence development, criminal investigations, internal affairs, marketing, recruiting, and community engagement.” So, social media is fine, as long as you don’t criticize us. Otherwise, it’ll get you fired.