地方政府可以对违反社交媒体政策的员工进行纪律处分吗?

Earlier this year the Fourth Circuit decided a case that pitted two fundamental interests against each other: a public employee’s First Amendment right to free speech and the government’s ability to provide efficient and effective service to the public. In the age of social media, 这两种利益之间的历史紧张关系只会变得更加有争议.

In Grutzmacher v. Howard County, 851 F.3d 333 (4th Cir. 2017),  a battalion chief of Maryland’s Howard County Fire Department (“Department”) sued the Department for retaliatory firing based on his Facebook posts and “likes.这是对2011年Facebook事件的回应, 该部门起草了一份社交媒体政策, entitled Social Media Guidelines, and accompanying Code of Conduct. 社交媒体指南禁止以下人员:

“[F]不得张贴或发表任何声明, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or positions of the Department, Howard County, 或代表部门或县的官员…. [F] from张贴或发布声明, 可能被合理地解释为歧视性的意见或信息, harassing, defamatory, 种族或民族贬损的, 或性暴力时这样的言论, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission… [From] post[ing] any information or images involving off-duty activities that may impugn the reputation of the Department or any member of the Department." 

The Code of Conduct, ，目的是确保部门人员在工作和下班时都保持“诚信和道德操守”,禁止部门人员“故意从事(从事)行为”, through actions or words, which are disrespectful to, 否则就会削弱权威, a supervisor or the chain of command" and "publicly criticiz[ing] or ridicul[ing] the Department or Howard County government or their policies" while requiring "[m]embers [to] conduct themselves at all times, both on and off duty, 以一种有利于该部的方式.《皇冠线上买球平台》还禁止部门员工从事与部门“不相称的”行为, 它将其定义为“任何不利于会员个人的行为”, the Department, or County government, 或有损于公众对本署的信任，或有损于本署的运作及效率." 

就在该部通过《皇冠搏彩APP下载》和《皇冠线上买球平台》一年多之后, the employee posted a statement on Facebook referencing news coverage of a gun control debate and alluded to killing a “liberal … with another liberal.” The employee subsequently “liked” a supportive but racially suggestive reply on his gun control post made by a county volunteer paramedic. The statement and “like” were brought to the attention of Department officials who told the employee his post violated the Department’s Social Media Guidelines and Code of Conduct and directed the employee to remove it. The employee complied but posted another statement on Facebook deriding the Department’s Guidelines and Code of Conduct and invoking the First Amendment’s constitutional guarantee of free speech. The employee also later “liked” a picture of an elderly woman with her middle finger raised that has a caption directing the picture at the Department’s captain. Ultimately, the Department fired the employee citing his Facebook activity as being violations of the Department’s Guidelines and Code of Conduct. The employee then sued the Department alleging his firing was retaliation against him for exercising his First Amendment rights and he also challenged the constitutionality of the Department’s Social Media Guidelines and Code of Conduct.

The Court upheld the termination of the employee finding that the employee’s speech on matters of public concern regarding gun control and the department’s social media policy were outweighed by the department’s interests in limiting dissension and discord, 避免出现种族偏见, 促进社会对执行部门政策的信任, 鼓励不尊重和不服从.

The Grutzmacher opinion reflects the complexities that government agencies and departments face when attempting to craft social media policies that are commonplace in other businesses. Government entities, as employers, 面对受到宪法挑战的独特挑战，因为就业决定构成国家行为. Furthermore, 公职人员在法律中享有特殊地位，法律保护他们就公众关注的问题发言. The law views public employees as a kind of check on government entities because those employees are the most familiar with that entity’s activities and are in the best position to speak out those issues that are matters of public concern. However, that government entity, as an employer, 有效率地运作，以便有效地为市民提供皇冠线上买球平台，是否有利益关系. Grutzmacher 是两种利益冲突的产物在这种情况下, the Fourth Circuit found that the government’s interest in efficient and effective operations outweighed Buker’s interests in speaking freely on public matters.

Government officials overseeing public entities and agencies can gain valuable insights from the Fourth Circuit’s treatment of Buker’s Facebook statements. The Grutzmacher court did not rule on Buker’s challenge to the Social Media Guidelines and Code of Conduct because the Department removed the allegedly offensive provisions, 因此，法院认为布克在这方面的主张没有实际意义. But the court did provide a valuable overview of what those in government entities with hiring and firing responsibilities should keep in mind when evaluating a public employee’s social media conduct with respect to a social media policy:

• 社交媒体上的“赞”是一种言论.
• 涉及公众关注的言论受宪法保护.
• 当言论涉及社会问题时，它就涉及公众关注的问题, political, or other interest to a community.
• 在询问社区成员是否真正关心员工的演讲时，要考虑上下文和常识.
• 涉及个人利益的言论不受宪法保护.
• 个人不满和对雇佣条件的投诉不构成对公众关注事项的言论.
• Matters of internal policy, 包括对偏袒的指控, employment rumors, 以及其他关于人际关系不和谐的抱怨, 不被视为公共政策事项吗.
• 考虑演说对政府机构的使命、职能和人员的影响.

Using these rules, the Grutzmacher court found that the employee’s statements on gun control legislation and the Department’s Social Media Guidelines were protected under the public employee speech doctrine as matters of public concern. On the other hand, 这位员工对那位竖起中指的老妇人的“赞”是一种没有保护的个人不满. However, the employee’s social media activity “frustrated the Department’s public safety mission and threated ‘community trust’ in the Department,破坏了该部的等级指挥和纪律结构, 而且它有可能“削弱司法部在公众中的地位”.” In the court’s opinion, each of those government interests outweighed the employee’s interest in speaking on matters of gun control and the Department’s Social Media Guidelines and Code of Conduct.

The Plaintiff in Grutzmacher 于6月19日向美国最高法院提交了一份请愿书, 2017, 所以这个案子还没有结束. 如果最高法院决定审理此案, it would provide further clarity on how government officials should evaluate a public employee’s social media activity and speech. In the meantime, government officials can discipline employees for violation of their social media policies but they should exercise caution when crafting and applying social media policies and insure their actions comply with current case law.

Jeff Rosen is a shareholder at Pender & 科沃德的执业重点是地方政府和劳动就业事务.  欲了解更多信息，请联系Jeff jrosen@repjcclothing.com or (757) 490-6253.