Wednesday, June 10, 2020

SCOPA: Public employee free speech meets Facebook rant about bus driver

The Supreme Court of Pennsylvania (SCOPA), recently issued its opinion in Carr v. PennDOT, addressing public employee free speech and Facebook rants. I know, I know, cut to the chase and tell us what she posted already:
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 [sic] 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[.] 
 And some sassy replies to comments: 
 If you see a vehicle coming perpendicular you [sic] with no turn signal on, do you pull out from your stop sign anyway? Lmk when you’re done googling perpendicular Good then, you don’t? Then they shouldn’t either. . . 
And that’s my problem? They broke traffic law[s], which I’m abiding and I’m in the wrong? Getfucked. What world do you live in that I’d deliberate [sic] injure myself in stead [sic] of somebody else. [sic] Didn’t call myself a hero . . . 
No I’m saying you don’t care about the random fucks that drive your kids and are you serious? Haha. . . 
I care about me. . . . 
Your children and your decision to chance them with a driver you’ve never been a passenger with is your problem. A vehicle pulls out in front of me or crosses the yellow line, that’s their problem. A sedan, school bus or water truck. You’re [sic] kids your problem. Not mine
The author was a PennDOT road worker who got fired for the post. In 2018, the Commonwealth Court held that she was speaking on a matter of public concern, and that her public employer did not have sufficient justification to terminate her.  

Not so fast! The Supreme Court reversed. The Court agreed that the post touched on a matter of public concern, but noted that it seemed limited to a rant about a specific driver (as opposed to a broader issue of bus safety) and therefore had limited public value. The limited public concern was outweighed by the interest of the employer in "efficiently carrying out its responsibilities." As the Court noted:
Clearly, few statements could be more contrary to the Department’s mission of providing safe roadways for the traveling public than Carr’s comment, “I don’t give a flying shit about those babies and I will gladly smash into a school bus.” Furthermore, the fact that the Department received complaints via social media about Carr’s posts highlights the reasonableness of its concerns regarding the loss of public trust.
This remains a complicated area of the law. Many people don't realize that public employees have free speech protections at all; and then another large group thinks they have full free speech rights. Nope. It's somewhere in between - public employees receive some protection to speak as private citizens on matters of public concern - but balanced against public employers' rights to efficiently carry out their public duties. 

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