Can Louisiana Public Agencies Control Employees' Social Media Posts?

Employment lawyers and civil liberties experts generally agree that private companies have more leeway in putting restrictions on the social media posts of “at-will” employees.

by Terry L. Jones, The Advocate, Baton Rouge, La. / April 18, 2016

(TNS) -- Rapides Parish teacher Deborah Vailes was called into the office and reprimanded by the principal on the day she posted sharply critical remarks on her personal Facebook page about Louisiana’s Common Core curriculum.

Vailes didn’t mince words. Under a photo that had been floating around the Internet of a visibly upset little girl struggling with the curriculum, she wrote a caption that urged parents to take their children out of public school and either home-school them or put them in a private school “until we get rid of this.”

Her principal ordered her to remove what she had posted from her home computer early that morning in September 2014, according to a lawsuit Vailes filed in federal court the following February. And, Vailes said, she was instructed to no longer express her personal opinions regarding public education on social media. The school system disputes her claims.

More than a year later, the suit is still working its way through the courts. But the issues it raises over how far governmental bodies can go in restricting the free speech rights of public employees are playing out elsewhere across Louisiana.

Some examples:

Abbeville disciplined one of its officers for speaking out on his personal Facebook page about working conditions at the city’s Police Department. It ended up costing Abbeville’s taxpayers $32,900 to settle the case, and the city was forced to revise its policies governing the use of social media by employees.

An East Baton Rouge Parish sheriff’s deputy, who included an image of his badge on his Facebook page, was fired after posting comments that disparaged a McDonald’s in Central. The comments, which generated public controversy, related to how the deputy said he was treated by an employee of the fast-food restaurant. A spokeswoman for the Sheriff’s Office said the Facebook post was only one of several factors that went into the decision to terminate the officer’s employment.

In Lafayette, First Amendment protections became an issue when a U.S. magistrate judge ordered a group of city police officers to take down a website they had been using to air clandestine recordings of on-duty officers. The recordings, they believed, backed up accusations they were making in a lawsuit accusing the Police Department and city officials of corruption and racism.

The growing popularity of social media sites like Facebook and Twitter has led to more and more image-conscious companies and governmental agencies adding policies in their employee manuals prohibiting certain online behavior and to a growing number of conflicts.

“In almost any sector you can think of — government agency, private businesses, nonprofits — those in leadership are always concerned about what individuals who work for the entity are saying online,” said Victor Canada, owner of business consulting firm NXT Media.

Canada, who also developed the Social Media Certificate Program at LSU, has conducted social media workshops for businesses and government agencies across the nation, including the Louisiana Municipal Association.

“You have individuals who, when they go online, they have a feeling like this is personal to them. It’s no one else’s business what I’m saying,” Canada said. “The challenge lies in personal profiles where you associate yourself with your employers. Your audience, people who are connected to you, can see who you work for. If you get online talking about your horrible day at work, obviously your employer is going to be embarrassed.”

Employment lawyers and civil liberties experts generally agree that private companies have more leeway in putting restrictions on the social media posts of “at-will” employees.

“What intrigues me most is how the limitations on public employees’ rights is going to play out in Louisiana and elsewhere,” said Baton Rouge attorney J. Arthur Smith.

Smith, who has been practicing law in the state for more than 40 years and specializes in labor and employment law, said public employees have “plenty of resources, including our pretty good state constitution” to protect their free speech rights.

Smith and Marjorie Esman, executive director of Louisiana’s chapter of the American Civil Liberties Union, pointed out what they saw as serious flaws in the written social media policies of several public agencies they reviewed at The Advocate’s request.

“There’s a lot of vagueness and overbreadth,” Esman said. “If you take them on their face value, they prohibit things people absolutely have the right to do.”

Both said the East Baton Rouge Parish Sheriff’s Office guidelines are ambiguous and appear to encroach on the free speech rights of employees. They pointed to language in the policy that prohibits “speech containing obscene or sexually explicit language, images, or acts and statements or other forms of speech that ridicule, malign, disparage, or otherwise express bias against any race, and religion, any sexual orientation or any protected class of individuals” in the personal use of social media.

“That’s overly broad,” Smith said. “A lot of things can be characterized as sexually explicit language. This really doesn’t take adequate account that there will be comments that could be made that are protected under the state’s constitution.”

Another section of the Sheriff’s Office policy says employees are free to express themselves as private citizens on social media as long as what they say and post doesn’t damage their working relationships, disrupt the office’s operations or discredit the Sheriff’s Office or an individual employee.

“Not all opinions are protected speech,” the policy reads.

To that, Esman responded, “Well, what are?”

The policy doesn’t say.

Casey Rayborn Hicks, spokeswoman for the Sheriff’s Office, says her office stands by its policy, on which it consulted with a legal expert before adopting.

“This policy pertains to when a deputy is representing the agency by using our badge, emblem or department name on their profile,” she responded in an email. “Not when they are commenting on a personal basis and not claiming affiliation to or representing the department.”

Social media polices for school districts in Iberville Parish and Zachary are written mostly to discourage personal online interactions between teacher and students.

Last year, the Iberville Parish school district fired a teacher who carried on sexual affairs with several of his students, resulting in a child with one of them. The investigation into the incident revealed the man sometimes used Facebook to interact with the girls.

Restricting employees’ online behavior on electronic devices issued by public agencies — like Iberville does — doesn’t raise any red flags. But Esman said a section of the policy that prohibits employees from accepting “friend” requests from students or posting any photos of students on their personal Facebook pages isn’t specific enough.

“What if it’s a relative?” she asked.

Iberville’s human resources and policy supervisor Brandie Blanchard said no one has been fired for social media posts, but some have been disciplined and asked to remove posts deemed unprofessional.

Zachary school system’s policy includes language similar to that used by Iberville but excludes students who are immediate family members of their employees.

However, Zachary’s policy also includes a broad prohibition against employees making any statements on social media that would violate any of the school’s policies, and it prohibits employees from posting any photographs deemed “inappropriate,” like ones related to alcohol or tobacco use.

“The employee must uphold the district’s value of respect ... and avoid making defamatory statements about the school district or any member of the school community,” the policy reads.

Smith believes it probably will take the right legal cases presenting strong arguments challenging social media policies to clear up the murky waters flooding the employment sector as social media’s popularity grows.

And he thinks many of the courts’ decisions in these types of cases will hinge upon how much of a reach a person’s voice has on sites like Facebook and Twitter.

“If a person only has stuff that’s seen mostly by close friends and family, he or she has a certain expectation of privacy,” Smith said. “But if a person has thousands of friends online, I would bet the courts would see that a little differently when it comes to private versus public speech.”

Officials with the Louisiana Municipal Association and the Louisiana School Boards Association say they encourage governmental bodies within their networks to consult with their attorneys when trying to craft any kind of policy.

“We can’t give them legal advice. It would be up to each mayor or parish president to determine how they want to address the issue,” said John Gallagher, director of governmental affairs for the Louisiana Municipal Association. “Each administration has their own ideas how they want their employees to be good ambassadors (for their agencies).”

As for whether the policies are too strict or over-reaching, Gallagher said, “I don’t know. That’s for the courts to determine.”

Canada said he advises municipalities and government agencies to take a more proactive approach to social media when the topic comes up in his workshops.

“I tell them to focus more on what they want their employees to do instead of trying to control what they don’t want them to do,” he said. “It’s much harder and dangerous for them to try and pigeonhole their employees.”

In the meantime, incidents like that involving Vailes, the Rapides Parish teacher who says she was ordered to take down her Facebook post criticizing Common Core, continue to arise to test the limits on social media use.

Vailes says having to remove her post enraged her.

“I felt so violated,” she said.

The Rapides Parish school district denied the allegations that it was trying to suppress Vailes’ free speech rights and said the problem was with other material posted on her Facebook, not the Common Core material.

In its response, the district said Vailes was asked to remove from her Facebook page a post that “implied that the Rapides Parish School Board was teaching children the use of sexual aids and informing them of sexual positions.”

The district also denied her claim that she and other teachers at Pineville Junior High School were barred from publicly voicing their opinions about public education following the controversial post.

Neal Johnson, the attorney for the school district, said Vailes hasn’t been terminated despite claims in her lawsuit the district is trying to push her out. “It would be inappropriate for me to comment further on litigation that is still ongoing,” Johnson said when asked additional questions about the school district’s defense.

Vailes called the school district’s allegation “a blatant lie.”

“It was a school nurse that had shared the picture they’re talking about, and I had commented beneath it and said it was disgusting,” Vailes said. “I did not share it. But supposedly, they said it popped up in my (Facebook) news feed.”

Vailes’ case was taken up by the Ann Arbor, Michigan-based Thomas More Law Center, a nonprofit organization that provides free legal counsel for cases seen to have broader significance. According to its website, the center “defends and promotes America’s Judeo-Christian heritage and moral values, including the religious freedom of Christians, time-honored family values and the sanctity of human life.”

The ACLU, meanwhile, argued on behalf of the Abbeville police officer who was disciplined for posting on his personal Facebook about working conditions in the city’s Police Department.

To settle the suit, Abbeville had to pay the officer $32,900 and also revise its social media policy, which now assures its employees that “social media activity and speech as citizens relating to matters of a public concern are First Amendment protected forms of speech.”

©2016 The Advocate, Baton Rouge, La. Distributed by Tribune Content Agency, LLC.