In Part 1 of this series we talked about social media and students, tackling topics like student speech, off-campus speech, cyberbullying, and Wisconsin expulsion cases related to social media.
In this installment of the series, we shift our attention to social media and employees, with a focus on the following topics …
- Employees’ Personal Social Media Use
- When may a school district regulate an employee’s speech on social?
- Can an employer require employees to disclose login information?
- District devices.
- Employees Speaking on Behalf of the District
- Public records
- Social Media & Public Relations
- Members of the Public
- The Tenor of Ongoing PR
Let’s dive in …
Social Media & Employees
EMPLOYEES’ PERSONAL SOCIAL MEDIA USE
- When may a school district regulate an employee’s speech on social media?
Matter of Public Interest. The First Amendment generally prohibits the dismissal/discipline of employees in retaliation for the exercise of protected speech, including speech made via social media.
Our Supreme Court has stated that the “protection of the public interest in having debate on matters of public importance is at the heart of the First Amendment.” Public employees do not lose their right to comment on matters of public interest merely by virtue of public employment.
Our courts recognize that public employees are in a unique position to form informed opinions and comment on important public issues related to their employers.
Pickering-Connick Doctrine. Under the Pickering-Connick doctrine, the First Amendment does not protect public employees when their free speech interests are outweighed by the government’s interest in providing efficient and effective services to the public.
- Issue 1: Can the public employee’s statements be fairly characterized as speech on a matter of public concern? If “yes,” ask:
- Issue 2: Was the public employee speaking pursuant to his/her official duties or as a private citizen?
If the employee was speaking as a citizen, the employer must conduct a balancing test: Does the government’s interest in controlling the operation of its workplace outweigh the public interest in free and unhindered debate on matters of public importance?
Factors relevant to the balancing test include whether the speech:
- Impaired the maintenance of discipline by supervisors;
- Impaired harmony among coworkers;
- Damaged close personal relationships;
- Impeded the performance of the public employee’s duties;
- Interfered with the operation of the institution;
- Undermined the mission of the employer;
- Was communicated to the public or to coworkers in private;
- Conflicted with the job responsibilities of the employee; or
- Abused the authority and public accountability that the employee’s role entailed.
- Employees may assume that if they post on social media in their own home and outside of school hours, their speech cannot be tied to the district. This is a misperception.
School officials, in particular, are generally viewed as representatives of the district by the community, even during off hours.
In addition, employees’ online presences often blend the personal and professional, such as posting photographs of school events and commenting on school initiatives, which can give their personal speech on the same platform the appearance of endorsement by the District.
- In Munroe v. Central Bucks School District, a school district terminated an English teacher who made derogatory statements regarding her own students via social media. The teacher brought suit against the district for violation of her free speech rights, noting that she made the statements on a private blog.
The court applied the Pickering-Connick balancing test, and concluded that, while the teacher may have implicated matters of public concern, her speech interfered with her job duties and caused sufficient disruption amongst students, staff, and the community to warrant restriction.
Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 476 (3d Cir. 2015).
- An employer may not require its employees to disclose login information to their social media accounts. Under state statute, an employer may not:
- Request/require an employee or job applicant, as a condition of employment, to disclose access information to their social media accounts or “to otherwise grant access to or allow observation of that account;”
- Discharge or discriminate against an employee for refusal to disclose access information, grant access to, or allow observation to their social media; or
- Discharge or discriminate against an employee for filing a complaint or attempting to enforce the above right, or testifying or assisting in any action or proceeding to enforce the above right.
- District Devices.
- Districts should notify employees that their personal use of district-issued devices may be monitored. If an employee challenges any subsequent search of his/her social media use on those devices, the district can show that the employee had no reasonable expectation of privacy.
- If a district implements a policy governing employees’ personal use of district devices, it must apply that policy equally to all employees. A strict ban on any personal use is not recommended, because it is often not fully enforced.
EMPLOYEES SPEAKING ON BEHALF OF THE DISTRICT
- Public Records. An employee’s social media use can also implicate the Public Records Law.
Employees sometimes run a social media page on behalf of their school district, such as the Facebook page of a school athletic activity. Employees must be aware that the posts, private messages, and other activity on that page may be subject to disclosure under the Public Records Law.
This is true whether the employee accessed the page through a district device or a personal device.
Social Media: Public Relations
Shifting gears a bit to public relations, here are a few insights and tips …
MEMBERS OF THE PUBLIC
- School districts generally cannot regulate the speech of members of the public. This includes the parents of a district’s students.
- Not all speech is protected by the First Amendment, however, such as defamatory speech, true threats, and identifiable references to a pupil.
- A school district does have an interest in regulating speech posted on the district’s own social media platforms, but any restriction must be content neutral. The site administrator may not delete posts from members of the public based on viewpoint.
THE TENOR OF ONGOING PUBLIC RELATIONS
- Positive tone.
- Do not define issues on the critics’ terms (e.g., apologizing for public education or “failing public schools”).
- Treat all parties — critics, observers, others — as part of the District family.
- Respond to challenges with:
- Acknowledgement and validation of critics (treat them as concerned constituents whenever possible).
- Understanding (show that you understand the issue that they are raising).
- Information (demonstrate your mastery of the issue; prove that you understand the issue better than the casual critic or angry name caller).
- Rebuttal (make your case politely, but firmly).
- Transition (turn the discussion back to your issues; if possible, cement the message that your comprehensive treatment of the issue shows why expert public educators are valuable.
This brings us to the end of our series on The Impact of Social Media on Wisconsin School Districts. We hope you found the information we shared useful.