Posted on November 30, 2020
By: Lily Crespo Esq.
What happened? Nashville Metro (employer) discharged a white employee for comments she made from her public-facing Facebook profile. She sued the employer for retaliation under the First Amendment. The lower court ruled in employee’s favor but the 6th circuit overturned that decision in favor of the employer.
The post showed an electoral map of the United States with Trump presidential victories highlighted in red. A commenter on the post wrote, “Redneck states vote for Trump, (n-word) and Latinos vote for Hillary.”
The employee replied, “Thank god we have more America loving rednecks. Red spread across all America. Even (n-word) and Latinos voted for Trump too!”
The main question: Does a public employee’s use of a racial slur when discussing politics on Facebook get protection of the First Amendment, outweighing a government agency’s interest in having an efficient workplace and effectively serving the public?
The 6th circuit said no! The employee’s interest in free speech did not outweigh interests of employer. The court found the employee’s speech did not occupy “the highest rung” of public concern. Several factors weighed heavily in favor of the employer. Although there were factors weighing in favor of the employee, sufficient disruption was shown to tip the Pickering balance towards employer. The employer’s interest in maintaining an effective workplace with employee harmony that served the public, outweighed the employee’s interest in using racially offensive language in a Facebook comment.
Political or offensive? The U.S. Supreme Court has crafted a “balancing test” that judges must use to decide when a government employee’s First Amendment rights prevail over the government’s interest in “having an efficient workplace and effectively serving the public.” Speech that is considered political and on a matter of “public concern,” or importance, gets greater weight under that test.
Takeaway: Offensive speech does not enjoy the same level of First Amendment as does political speech. Take care with these issues because the balancing between what is protected by the First Amendment and what is just plain offensive can swing differently depending on the district, the judge, or the facts of the case.
From the opinion:
“Testimony and the facts of the case indicate that Bennett was fired specifically for her use of a racial slur, for her lack of regret for doing so, and for the disruption it caused — not for the political nature of her original post”
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.