Demotion as a Consequence of Controversial Facebook Post not in Violation of the First Amendment

What employment consequences can result from posting controversial material on Facebook for government employees? Rex Duke recently found out the hard way. Duke was a veteran police officer with the Clayton State University Police Department, and had achieved the rank of Captain. On November 6, 2012, after the results of the 2012 Presidential election, Duke posted an image of the Confederate flag along with the phrase “[i]t’s time for the second revolution” to his Facebook page. Duke was not on duty when he posted the image, nor did he reference his employment with the Clayton State University Police Department. The Department had no policy relating to the use of social media at the time of Duke’s post.

Duke’s Facebook account was visible only to friends and family, and the post was removed within an hour. However, a screenshot of the post was given to an Atlanta Television station, which then contacted university officials. The Clayton State Police Department received anonymous complaints relating to the post. Following an official investigation, the Chief of Police of the Department found that Duke’s post was “inappropriate” and that “officers should not espouse political beliefs in public.” Duke was demoted from Captain to Detective, and experienced a significant decrease in pay rate.

The court noted that ‘the post illustrates the very gamble individuals take in posting content on the Internet and the frequent lack of control one has over further dissemination.’

On May 16, 2013, Duke filed a complaint in the Northern District of Georgia against the University System of Georgia, which operates Clayton State University. In his complaint, Duke alleged that he was demoted “in violation of the First Amendment as a means ‘to punish [him] for privately advocating for his personal political beliefs, and sought to restrain his ability to privately advocate for those personal beliefs.’” He maintained that his sole intention when posting the controversial material was “to express his general dissatisfaction with Washington politicians.” Duke further argued that his Facebook post cause no disruption to either the law enforcement or the educational function of the police department. He sought an injunction declaring that his First Amendment rights had been violated, and instating him to his prior rank.

The court denied Duke’s claims. It analyzed the claim under the four part Pickering Test. The Court found that while Duke posted the content as a private citizen, and that it was a matter of public concern, however, it found that the Clayton State University Police Department’s interest “in promoting the efficiency of the public services it performs through its employees” outweighed Duke’s First Amendment interests. It noted that police departments have an especially acute interest in efficient public service.

In its analysis, the court considered the nature of the Facebook post. While Duke argued that his post “was not widely disseminated, but simply posted to his private Facebook account …  to be viewed only by close friends and family,” the court disagreed. It found that, despite those intentions, the post was widely disseminated, affected the favorable reputation of the police department, and caused a disruption. It noted that “the post illustrates the very gamble individuals take in posting content on the Internet and the frequent lack of control one has over further dissemination.”  Finally, the court determined that the absence of a social media policy did not prohibit the Police Department’s response.

Duke’s story serves as a cautionary tale to all government employees, particularly Police Officers, with social media accounts. While government employees do not surrender their First Amendment rights, the result of this case demonstrates that government employers have a particularly strong interest in maintaining order, and even an initially private Facebook post can disrupt that balance if it is controversial.

Blog post sources: blog.ericgoldman.org; docs.justia.com