AACFAMILY & FRIENDS Social Media


1. Restricting the content of an employee’s speech, or restricting what they can say requires a showing by the employer that the restriction is necessary to serve a compelling state interest and is narrowly tailored to achieve that goal. In cases of speech restriction, courts have been less likely to uphold prior restraint of cer- tain categories of speech, and more likely to uphold the subsequent punishment for unprotected speech that has already taken place.


2. Restricting an employee’s conduct or restricting what they can do is somewhat more lax, requiring an im- portant government interest if the conduct is in a public forum (like social media), or merely reason- ably related to a legitimate regulatory purpose if the conduct is in a nonpublic forum (such as the private dinner conversation).


3. Overbroad restrictions on employee speech (“you cannot have a social media account”) and restrictions giving the employee unfettered discretion (the coun- ty elected official only restricts speech that is mor- ally reprehensible to her) are prohibited. Similarly, a restriction on employee speech can be void if it is too vague (“Do not post anything on social media that might be offensive to a member of the public.”)


In this particularly volatile election cycle, it is inevitable that some county employees will feel compelled to exercise their right to free political speech, whether in person in a county office or over social media. As an employer, you may not agree with or like everything they have to say — in fact, you may despise and be appalled by it. You may even want to fire the employee. It is important to be aware of a county elected official’s rights as an employer in an at-will employment state, while also being mindful not to violate an employee’s First Amendment rights. Te Arkansas Department of Labor website explains the


Arkansas-adopted doctrine of “employment at will” by stat- ing that, absent a contract indicating otherwise, “either the employer or the employee may end the employment rela- tionship at any time for any reason or for no reason at all.” It then lists numerous federal and law exceptions that serve to protect employees from discrimination. An employee can- not be fired solely “on the basis of age, sex, race, religion, national origin or disability,” among others. An employee also cannot be fired solely for exercising their right to pro- tected speech or affiliation, political or otherwise.


Treat of or actual dismissal based solely on political affiliation


In 1976, the U.S. Supreme Court in Elrod v. Burns pro- hibited “patronage dismissals” of county employees. Te


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Court ruled that it was a violation of the employees’ First and Fourteenth Amendment rights for a newly elected Democrat sheriff to terminate a group of Republican “non- civil-service employees,” including a chief deputy of process serving, a bailiff, a process server, and an office employee based solely upon their lack of affiliation with the Demo- cratic Party, even though this type of dismissal was a com- mon practice in the county where a new sheriff was elected almost every election cycle. Te majority ruling stated spe- cifically that it was unconstitutional to discharge or threaten to discharge “a nonpolicymaking, nonconfidential govern- ment employee ... from a job that he is satisfactorily per- forming upon the sole ground of his political beliefs.” In 1980, the Supreme Court took up a similar issue in


Branti v. Finkel, further clarifying the Elrod ruling. Here six of nine assistant public defenders in an office were dis- missed because of their Republican Party affiliation. Te Branti court ruled, “Te ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular posi- tion; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate require- ment for the effective performance of the public office in- volved.” Te Court explained that while a governor’s speech writer or communications director might require party af- filiation to be an effective member of his employer’s team, party affiliation was not an appropriate requirement for a state university football coach. Following these federal cases, in 1985, the U.S. Eighth


Circuit Court of Appeals (which is binding on Arkansas courts) held in Horton v. Taylor that a county judge’s road- grader employees did not meet the exception of the “policy- making [employee] related to ‘partisan political interests,’” nor did they have “access to confidential information bear- ing whatsoever on partisan political concerns.” Also consid- ered was the Branti addition of whether “party affiliation is an appropriate requirement for the effective performance of the public office involved.” Answering all of these inquiries in the negative, the court upheld the lower court’s determi- nation that the road-grader employees were wrongly dis- missed based solely on party affiliation.


Treat of or actual dismissal based on protected speech


While Elrod and Branti involved cases in which the dis- missals were based only on political beliefs and associations, the Horton case also addressed the termination of county employees based on arguably protected political speech. Tere is a separate test for employers’ dismissal decisions when possibly protected speech is involved rather than mere beliefs or associations. Te first question to be asked is whether the statements made by the employee were “mat-


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