Social Media and the Government Employee: Reconciling Our Public & Private Digital Identities

Stephen Kleinschmit, Ph.D and B. Joon Kim, Ph.D
Rutgers University's Cases and Simulations Portal
Ceding a portion of one’s right to free speech has long been an expectation of public service, but social media has facilitated new forms of conflict, testing the bounds of acceptable private behavior. Though technological innovation has far outpaced slowly evolving legal doctrines, a number of precedents may be used as general guidelines as to acceptable forms of employee speech. The U.S. Supreme Court uses the Pickering-Connick Balance Test, a proposition by which an official’s speech is defensible if one speaks on an issue of public concern, and such actions do not disrupt the efficiency of agency operations. Garcetti vs. Cerballos (2007) extended this axiom to define that internal processes (particularly personnel matters) are not issues of public concern, and thus speech on these issues may not be afforded protection. Our proposed case study examines the application of these doctrines to a recent lawsuit, Hispanics United of Buffalo Inc. vs. Ortiz. The Hispanics United case first explores the distinction between individual speech and collective forms of speech, the latter of which is largely protected under National Labor Relations Act. We also examine two recent teacher firings that have evidenced an inconsistent application of the Pickering test by administrative courts, as detailed within the Rubino and O’Brien cases. The divergent outcomes can largely be attributed to nature of the offending speech and the loss of trust between the public servant and those they serve.
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