In yet another case that disfavors the freedom to post social media rants, The United States District Court for the District of Oregon found that a social services caseworker who posted Facebook comments questioning the ethics of families she supervised, was not entitled to relief for a First Amendment retaliation claim under 42 U.S.C. Sec. 1983. In Shepherd v. McGee (available here) the court found that the First Amendment did not provide protection to plaintiff, whose job it was to evaluate claims of child neglect among families, a majority of whom were on public assistance, for comments such as “So today I noticed a self-sufficiency client getting into a newer BMW. What am I doing wrong here? I think I need to quit my job and get on Temporary Assistance to Needy Families.” Plaintiff also posted a list of “rules for society” including “If you are on public assistance, you may not own a big flat screen television…”
The court balanced the interest of individual free speech against the government’s interest in assuring administrative efficiency and held for the defendant-government employee who terminated plaintiff. While the case serves as another example of an individual’s qualified right to post on Facebook, the more interesting query to me concerns a seemingly innocuous sentence in Judge Hernandez’ opinion concerning the intersection of personal and professional lives.
Judge Hernandez wrote that plaintiff identified herself on her Facebook pages as a “Child Protective Services Case Worker at Department of Human Services” yet did not provide a general disclaimer that “any content on the page was her opinion and not that of DHS.” Listing one’s job on one’s profile pages is almost as common a practice among Facebook subscribers as is sharing personal pontifications and ruminations. Judge Hernandez’ opinion plants the seed that, to avoid liability, individuals must keep their social media personal and professional lives separate.
This notion of separate lives is gaining significant traction. A recent NY Times article, “They Loved Your GPA Then Saw Your Tweets,” suggests college officials are scanning social media websites as part of their admissions decisions. To be sure, one’s personal social media statements can impact professional life. But is it of such concern that individuals should lose First Amendment protection short of posting a disclaimer to their tweets?