Tuesday, June 19, 2018

PennDOT Employee's Facebook Rant Receives Constitutional Protection

The Commonwealth Court of Pennsylvania issued an opinion applying the First Amendment to a Facebook rant in Carr v. Commw. Dept. of Trans.

A PennDOT road worker posted this to a Facebook group:
Rant: can we acknowledge the horrible school bus drivers? I’m in PA almost on the NY boarder [sic] bear [sic] Erie and they are hella scary. Daily I get ran off the berm of our completely wide enough road and today one asked me to t-bone it. I end this rant saying I don’t give a flying shit about those babies and I will gladly smash into a school bus.
She followed up with some sassy replies in the comments. She got fired.

Public employees enjoy some First Amendment free speech protections generally not afforded to private employees. For speech to receive protection, the Court will inquire whether:
  • The employee spoke as a citizen on a matter of public concern; and
  • Whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public (including whether the speech has some potential to affect the entity’s operations).
(See opinion for citations and quotations).

The Court held that her rant did touch on a matter of public concern: "Carr’s speech touched on the safety of schoolchildren and the traveling public." On the second issue, the Court applied the first four of the seven "Sacks factors":
1. Whether, because of the speech, the government agency is prevented from efficiently carrying out its responsibilities;  
2. Whether the speech impairs the employee’s ability to carry out his own responsibilities;  
3. Whether the speech interferes with essential and close working relationships;  
4. The manner, time and place in which the speech occurs[;] . . . .  
5. Whether the speaker was in a position in which the need for confidentiality was so great as to justify dismissal for even completely accurate public statements[;] 
6. Whether narrowly drawn grievance procedures required submission of complaints about the operation of the agency to superiors for action prior to taking complaints to the public[; and]  
7. Whether a statement that was knowingly or recklessly false, if it were neither shown nor could reasonably be presumed to have harmful effects, would still be protected by the First Amendment.
I'll spare you the blow-by-blow, but the Court concluded: "the Department’s generalized interest in the safety of the traveling public does not outweigh Carr’s specific interest in commenting on the safety of a particular bus driver." Ultimately, the employee was reinstated.

Even public employees should not read this as some kind of blanket protection for Facebook rants. This decision addressed the exception rather than the rule.

HT: Court: PennDOT Employee Who Wrote on Facebook That She'd 'Gladly Smash Into a School Bus' Must Be Reinstated via The Legal Intelligencer.