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Most government agencies have some form of social media accounts and are expected to communicate regularly with their local online audience. The norms of social media dictate posts should be entertaining, informative, genuine and provide transparency – all in real time. Often many employees are running one account and do so without an editor or a review process to approve posts.

The public’s expectations of social media accounts are clear, but the crux of the situation is that the government is the exact entity whose actions are controlled by the First Amendment. When a specific agency of government is acting as an employer, things can get dicey when it comes to employee free speech.

It begs the question: how much control does a government agency have over what their employees say online?

Acting within the first amendment vs. as an employer

People are quick to claim their free speech rights have been violated when they face the penalties at work for what they say online. However, the truth is, for private employees, those rights don’t apply. The First Amendment can protect speech from restriction by the government.

In some situations, other laws may protect speech by employees of private organizations (National Labor Relations Act, Civil Rights Act, etc.) but when it comes to the First Amendment, government employers are the only employers who must comply. This creates an interesting problem for government agencies: How do we protect sensitive information without stepping on employees’ Constitutional freedom of speech?

Does a government employee really have free speech rights on social media?

The Department of Information Resources (Dir) in Texas has an internal Social Media Resource Guide that was created with 34 other state agencies. These guidelines are helpful for any government-related employer who is starting in the social sphere. However, issues may arise when employees go rogue or choose to publish internal information under the expectation of performing a public service under the “whistleblower” mentality.

  • Government employee standards: People who work for the government still enjoy First Amendment free speech protections, but they are limited. They have the right to speak as private citizens on matters that concern the public, on their own time. Otherwise, their employer generally can restrict what they say. Social media makes this regulation process especially tricky.
  • Anonymous speech: The First Amendment also provides the right to speak anonymously, which can be frustrating for government employers. We saw this play out in 2017 when with “rogue” government agency accounts.

Some whistleblower protections may apply, but not as far as employees may like

Whistleblower protections do cover many elements of someone coming forth with the truth, for the betterment of the public. However, not all actions are protected and individuals, as well as their government employer, can face serious consequences:

  • Public disclosure is not protected: The most common ways government employees are expected to “blow the whistle” are reporting to a supervisor, the Inspector General’s office of the agency, or a higher-level agency official. Reporting by revealing information to the public, however, is generally not protected. So, employees who release information on social media likely cannot rely on whistleblower protection.
  • Protection from retaliation: The Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012 protect federal government employees who report legal violations by the government agencies they work for. An employee cannot be fired or transferred for reporting a potential legal violation.

A wise, legally-accurate social media policy is key

There will never be a fail safe method for governments to do their public duty and keep every employee to strict social media guidelines. A robust policy regarding social media, and legal teams ready to inform, advise and take immediate action should the need arise, may be the critical elements as this issue is sussed out in years to come.

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