A police officer in Nashville was fired for a Facebook comment about the death of a black man in Minnesota who was shot four times by a white cop. “Yeah. I would have done 5,” the Nashville officer wrote.

A 911 operator in Nashville was fired for Facebook comments about last year’s presidential election. “Thank God we have more American loving rednecks,” she wrote. “Even (racial expletive) and Latinos voted for Trump too!”

A volunteer firefighter in Earle, Ark., was relieved of duty for writing on Facebook that those protesting pro football players “should be shot in the head” and “obama lovin snowflakes” should be “shot on sight.”

A Batesville, Miss., teacher was fired, two Memphis police officers were suspended, and at least four Shelby County employees lost their jobs in recent months for racially insensitive or offensive comments they made on social media.

One Memphis police officer posted a white person pointing a gun at a cartoon image of a black child on Snapchat.

Whatever happened to common decency? Whatever happened to free speech? Here in the social media age, both are under duress, if not direct assault.

“Social media has made it easier to exercise free speech, but in some ways it also has made that speech more public and less protected,” said Steve Mulroy, a University of Memphis law professor and a former Shelby County commissioner. “It’s an emerging area of law that is complicated and unclear.”

And untested. Lower courts are still sorting through social media’s implications for the free speech rights of public employees.

Clearly, if you are in uniform in a government office using a government computer, whatever you post on social media can be used against you by your employer.

But what if you are in pajamas in your living room using your own cellphone and your personal Facebook page to share your own bigoted thoughts and feelings?

“My advice would be, if you don’t want to be held accountable for something you say on social media, don’t say it,” said George Scoville, editor-in-chief of the University of Memphis Law Review.

Scoville has been researching the case of the Nashville police officer who was fired for the “I would have done 5” comment.

“First responders don’t lose their rights to speak just because they work for a municipal government,” Scoville said, “but as a practical matter, it can be difficult to vindicate those rights in litigation and then try to go back to work after saying something online that offends contemporary social values as if nothing happened.” 

Mulroy and Scoville said there are two tests for whether a public employee’s speech is protected.

1. Was he speaking as a public official or employee? If so, his speech is not protected.

2. Was he speaking as a private citizen about a public matter? If so, his speech is protected — unless the government can show the speech somehow disrupted or undermined the workplace.

“Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services,” Supreme Court Justice Anthony Kennedy wrote in a 2006 decision.

There’s the rub. 

Facebook post that led to Earle, Ark., firefighter being relieved of duty (Photo: Facebook)

The government must respect and protect John Q. Public’s right to say what he will about presidents or protesters or any public matter. But if the government also employs John Q. Public, all constitutional bets are off.

“The petitioner may have a constitutional right to talk politics,” Justice Oliver Wendell Holmes wrote in an 1890s ruling against a public employee who was fired, “but he does not have a constitutional right to be a policeman.”

That’s how Nashville Police Chief Steve Anderson saw it when he suspended, then fired the “I would have done 5” officer.

“Certainly have you the First Amendment right to state to anyone that you would have shot Mr. (Philando) Castile five times,” Anderson wrote to the officer in a six-page letter in February explaining his decision.

“However, making such a statement is inconsistent with your employment (and) disqualified you from serving in a police officer capacity. At any time in the future you are involved in any use of force situation, especially a use of deadly force, your comments will surface. …

“Your declaration on the World Wide Web not only brought discredit upon yourself, you also created an uncomfortable atmosphere for every employee on the force, especially those on the front lines and likely to face tense and volatile situations inflamed by your words.”

It didn’t matter that the officer did not directly identify himself on his page or post as a police officer. “You published numerous (other) comments that made it sufficiently clear that you were a law enforcement officer living in Nashville,” Anderson wrote.

A Facebook post shared by David Barber (Photo: Facebook)

Shelby County officials made the same point after a corrections official resigned over a Facebook post about then-President Barack Obama: “The KKK is more American than the illegal president,” he posted.

Although the comments were “personal on his Facebook page, his occupation at the Shelby County Corrections Center was evident to anyone who accessed the page,” the county said.

Shelby County Mayor Mark Luttrell summed up the dilemma for all public employees. “The question is whether or not this is a private citizen exercising free speech or if this is a public official who was held accountable for his speech in the public arena,” Luttrell said. “There is a fundamental right to free speech here.”

There is. Public employees have a constitutional right to free speech. They also have a constitutional right to an attorney. They might need one if they post, tweet, like or share the wrong speech.

 

 

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