Since the rise of social media, every national political event produces multiple examples of government employees being disciplined for on-line comments about that event. The shooting of Charlie Kirk is no exception. A Google search reveals dozens of stories about government employees being fired for sharing their thoughts on social media.  These firings come just weeks after a federal appeals court issued its decision in Hedgepeth v. Britton, a case sitting at intersection of social media, the First Amendment, and government employment.

Our courts have wrestled for decades with the question of how to define protected free speech for government employees. My colleagues and I have discussed the issue frequently as well; see this post, or this one,  or this one.

The initial First Amendment analysis for government employees is relatively simple.  To qualify for constitutional protection, speech by a government employee must be (i) about a “matter of public concern” and (ii) outside of the employee’s job duties. 

Matters of public concern are those that would be of interest to the general public, rather than mere workplace grievances. Complaining about the president or the governor is speech on a matter of public concern, but complaining about your boss is not. 

Speech must be outside of an employee’s job duties to receive First Amendment protection because an employer has the right to control how its employee speaks and acts while fulfilling job duties. A government employee has the right to post a political campaign sign in their front yard, but that employee probably does not have the right to post that same sign on their office door.

If both initial requirements are met, then the courts apply a very subjective balancing test: does the employee’s interest in free speech outweigh the government employer’s interest in the efficient delivery of public services?

Factors to consider when balancing those interests include: whether the speech disrupted the government’s operations; whether the speech would create problems in maintaining discipline or harmony among co-workers; whether the employment relationship is one in which loyalty and confidence are necessary; whether the speech impeded the employee’s ability to perform their responsibilities; and, the time, place, and manner of the speech.

The Hedgepeth v. Britton Decision

This case involved social media posts by an Illinois public high school teacher in response to the George Floyd protests in 2020. The teacher, Jeanne Hedgepeth, posted multiple times about the protests.  One post stated that she needed “a gun and training” because a “civil war” had begun.  Another recommended that the police use septic tank trucks equipped with high-pressure hoses to spray protesters with human excrement. The latter comment was accompanied by memes evoking the use of high-pressure hoses against civil rights protesters in the 1960’s. 

The local community’s response to Hedgepeth’s posts was swift and vocal.  The school board received over 100 emails and calls from current and former students and families complaining about Hedgepeth’s posts.  According to the court, “The disruption . . . rippled through the entire community. Hedgepeth’s posts threw school and district operations into disarray and unsettled her colleagues’ classrooms. The posts sparked outrage, drew media attention, and forced the District into a costly and time-consuming public relations response.”

Hedgepeth’s employment was terminated after the school board concluded that it no longer had confidence that Hedgepeth could work effectively with students and colleagues “of all backgrounds and races.”  She then sued the school board for violations of First Amendment rights to free speech.  The trial court ruled in favor of the government.

On appeal, the court quickly determined that Hedgepeth’s social media posts related to a matter of public concern and were made outside of her duties as a high school teacher.  It then moved to the balancing test, weighing the interests between employer and employee.  The court noted that while the government employer bears the burden of proof to demonstrate that its interests should prevail, the government also has “more leeway in restricting the speech of a public-facing employee like a classroom teacher who must maintain public trust and respect to be effective.”

The court’s emphasis on the importance of “public trust and respect” was a strong hint about which party was likely to prevail. Based on Hedgepeth’s social media posts regarding the Floyd protests as well as two previous instances in which she had been disciplined for unprofessional behavior (cursing at students in the classroom), the court concluded that the government’s interest in “addressing actual disruptions and averting future disruptions” to the efficient operation of her high school outweighed Hedgepeth’s free speech interests.  As a result, Hedgepeth’s First Amendment claim failed and her firing was upheld.

I believe there are five key First Amendment takeaways from the Hedgepeth case.

First, employees who interact with the public on a regular basis, in particular public school teachers, likely enjoy less freedom of speech than do other types of government employees. In the eyes of the court, “Teachers occupy roles that entail an inordinate amount of trust and authority, which makes the government’s interest particularly compelling.”

Second, speech made via social media will likely be viewed as more disruptive to the government’s mission than would speech made via more private means. Quoting an earlier case, the court observed, “A social media platform amplifies the distribution of the speaker’s message—which favors the employee’s free speech interests—but also increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency.”

Third, the disruption used as justification for employee discipline must not be purely speculative. While the government may “act to nip reasonable predictions of looming disruption in the bud,” the court stressed “that those predictions must be reasonable, meaning that they are supported with an evidentiary foundation and [are] more than mere speculation.”

Fourth, employees with histories of unprofessional conduct may be disciplined more severely for inflammatory speech than might employees with clean disciplinary records.  The court commented that the disruptions caused by Hedgepeth’s posts “did not occur in a vacuum.” The government “was entitled to look at Hedgepeth’s entire employment record. That context reveals two prior, serious incidents of workplace discipline for similar violations of the District’s decorum policies. The District was not required to wait around for a fourth violation.”

Finally, speech that denigrates a specific segment of the community which the employee serves may reasonably be considered more disruptive to the government than would  general political commentary. Hedgepeth’s posts did not simply criticize George Floyd or praise the police involved in that incident; her posts cast aspersions on all who protested in response to Floyd’s killing.  To demonstrate the level of disruption caused by Hedgepeth’s posts, the court quoted an email from a current student that expressed concern over Hedgepeth’s ability to work with Black students: “We don’t want a teacher . . . who believes we are being dramatic when a racist act has been done against us. We want a teacher who understands what we are going through and … the obstacles presented to us for simply being of different color.”

Recent Headlines Concerning Public Employees and Social Media

Every First Amendment dispute is different, of course, and the outcome will depend on the content of the employee’s social media posts as well as the employee’s role with the government. But Hedgepeth and related cases suggest that there are at least two general observations that apply to all disciplinary actions for social media activity.

Posts that encourage violence will be less likely to receive First Amendment protection than posts that offer opinions on political issues. (See this case involving comments on Hitler and the Holocaust.)  Posts from teachers, police officers, and other public-facing positions of trust will be less likely to receive First Amendment protection than posts from clerical employees who have little public interaction. (See the Hedgepeth discussion above and this case involving comments made by a county data-entry clerk on the assassination attempt against Reagan in 1981).  

The best advice I can offer to both public employees and employers when it comes to social media posts is . . . slow down and be deliberate in your actions.

Employees should consider the potential impact of their comments on their employers’ missions before hitting “post.”   Employers should consider the importance of employee free speech before reacting to their employees’ posts.  Are there other solutions besides immediate dismissal?

A bit of contemplation may avoid an acrimonious employment dispute.