Court of Appeals Strikes Down Palm Beach County Social Media Policy

The US 11th Circuit Court of Appeals has ruled that a social media-related First Amendment lawsuit filed by two Palm Beach County fire captains may proceed, reversing a district court ruling from 2020. In doing so the court struck down the fire department’s social media policy as being a prior restraint on employee speech.

The suit was brought by Captain AJ O’Laughlin and Captain Crystal Little, who were disciplined for posts they made on Facebook back in 2018.  As explained in the ruling:

• O’Laughlin was running for the union presidency.
• As part of his campaign, he created an invitation-only Facebook page, on which he posted a comment accusing the union’s First Executive Vice President—Captain Jeffrey Newsome—of attempting to misuse, for his personal benefit, time that union members had donated to the Union Time Pool.
• The UTP consists of union-member-donated hours that union officers can use on days that they would otherwise have to take off from their regular work in order to conduct union business. O’Laughlin’s Facebook post accused Newsome of conspiring with Fire Department management to use donated UTP time on Thanksgiving and Christmas Days—on which, all agree, he wouldn’t have been transacting any union business.
• O’Laughlin posted a screenshot of the UTP calendar and stated, as relevant here: “This is your Union leadership. Wtf. When elected this will stop.”
• For her part, Little responded: “Thanks AJ for keeping them accountable. And on that note our fucking stellar staffing officer just blindly approves it? Wtf!”

Captains O’Laughlin and Little were disciplined for their posts, which the department claimed violated the social media policy. Here are the portions of the social media policy they were accused of violating:

• d. Employees are prohibited from disseminating content that is inconsistent with the duties, conduct, and responsibilities of a Fire Rescue employee including content that could be reasonably interpreted as having an adverse effect upon Fire Rescue morale, discipline, operations, the safety of staff, or perception of the public. For example, unprofessional, unbecoming, illegal, unethical, sexual, violent, harassing, racist, sexist, or ethnically derogatory comments, pictures, artwork, videos, material or other such references all tend to undermine the public trust and confidence required by employees of the Fire Rescue.
• g. Employees who choose to maintain or participate in social media or social networking platforms while off-duty shall conduct themselve[s] with professionalism and in such a manner that shall not reflect negatively upon this agency or its mission.
• Failure to comply with the above guidelines may result in discipline up to and including termination.
• j. Fire Rescue personnel shall not post, transmit, or otherwise disseminate any information (photographic or text) to which they have access as a result of their employment without written permission from the Fire Rescue Administrator or designee.

Captains O’Laughlin and Little filed suit claiming their posts were protected by the First Amendment (free speech and freedom of association) and alleging that the department’s social media policy was overbroad, constituting a prior restraint on employees’ free speech rights. The district court upheld the discipline, concluding the posts did not involve a matter of public concern, were private communications not eligible for First Amendment protection, and did not violate a right to free association. The district court also upheld the social media policy, prompting the captains to appeal.

In reversing the district court, the 11th Circuit explained:

• The district court … held that plaintiffs’ Facebook posts did not address a matter of public concern and ended its free-speech analysis there.
• In so holding, the court emphasized (1) that “the content of the speech addressed the potential misuse of a Union Time Pool,” not the “misuse of public dollars or the Fire Department’s budgeting priorities”; (2) that the speech was not “communicated to [the] public at large” but, rather, was “made in the form of posts and a comment in a private Facebook group”; and (3) that the “context” suggested that plaintiffs “were motivated to speak by personal interests in electing… O’Laughlin to a union leadership position.”
• We disagree with the district court’s reasoning with respect to each of the public-concern sub-factors and, thus, with its overall conclusion that plaintiffs’ speech didn’t address a matter of public concern.
• Here, O’Laughlin alleged—and Little seemed to second — (1) that Newsome had attempted to misuse member-donated paid-time-off for his own personal benefit and (2) that Fire Department management was complicit in Newsome’s wrongdoing.
• Put simply, plaintiffs’ speech was intended to expose what they perceived to be corruption within the union and the Department.
• That strikes us as sufficiently “a subject of legitimate news interest” to satisfy the public-concern requirement’s content sub-factor.
• Indeed, we have emphasized that “a core concern of the [F]irst [A]mendment is the protection of the ‘whistle-blower’ attempting to expose government corruption.”
• The district court likewise erred with respect to the public-concern requirement’s form sub-factor.
• Contrary to that court’s apparent assumption, the law is well-settled that a public employee does not forfeit his free-speech rights simply because he chooses to communicate privately rather than publicly.
• The Supreme Court unanimously … [rejected] the proposition that “private expression of one’s views is beyond constitutional protection.”
• Plaintiffs here aired their grievances in the run-up to a union election, and they used an online platform to pointedly criticize union leadership.
• Because we conclude that the district court erred in concluding that plaintiffs’ speech didn’t address a matter of public concern at step one of the four-part Pickering-Connick balancing test, we vacate that court’s rejection of plaintiffs’ free-speech claim and remand for it to conduct the remainder of the Pickering-Connick analysis in the first instance.

The court went on to affirm the district court’s dismissal of plaintiffs’ as-applied free-association claim, but strike down the fire department’s social media policy, concluding:

• The Social Media Policy… suffers from the same sort of “astonishing breadth” [as the police department’s policy that was struck down in Liverman v. City of Petersburg, 844 F.3d 400 (4th Cir. 2016)].
• It expressly prohibits “disseminating content” that “could be reasonably interpreted as having an adverse effect upon Fire Rescue morale, discipline, operations, the safety of staff, or perception of the public.”
• In the Liverman court’s words, that “could be just about anything.”
• The district court here reasoned that the Social Media Policy’s “For example” clause—which is found in Subsection (d) and catalogues a non-exhaustive list of topics that might trigger the prohibition—sufficiently narrowed the provision’s reach.
• But here, as in Liverman, “the milder language in a single provision does not salvage the unacceptable over-breadth of the social networking policy taken as a whole.”
• Accordingly, we vacate the district court’s summary judgment on plaintiffs’ overbreadth claim and remand for further proceedings consistent with this opinion.

Here is a copy of the decision.

By the way, the ruling mentions a very important social media decision, Liverman. Here is a link to my coverage of that case along with a copy of the decision. We cover Liverman and many other cases in Drafting and Implementing and Effective Social Media Policy. The next delivery is July 13, 2022. The good news for those who have been through the program: nothing in the Palm Beach County decision requires any changes to my model policy.