Across Massachusetts, a series of recent posts that public officials and employees have made on social media about NFL players’ protests and President Donald Trump have sparked outrage and raised questions over the First Amendment.
“If the government wants to try to restrict speech, it’s got to have a pretty compelling reason to do it,” said Dwight Duncan, a UMass School of Law professor who teaches courses on constitutional law and the First Amendment.
After a group of New England Patriots players recently kneeled during the national anthem to protest racial inequality, Brockton Parks and Recreation Commission member Stephen V. Pina used his personal Facebook account to comment on a news story about the incident, calling the players “turds” and telling them, “dance monkey dance.”
Pina resigned from the commission after Brockton Mayor Bill Carpenter called for him to step down, according to the Enterprise. The U.S. Department of Veterans Affairs, which employs Pina as a manager at a V.A. office in Providence, also weighed disciplinary action.
In Yarmouth, Housing Authority member Joseph Glynn told the Cape Cod Times he would resign from his position after his epithet-laden Facebook post on the players’ protests generated a significant backlash.
Glynn told the Cape Cod Times he didn’t direct the racial slurs at anyone, but was rather using the words to draw a comparison between the pain of oppressed groups and the pain he felt seeing protests during the national anthem.
At Bridgewater State University, a public institution, a series of anti-Trump Facebook posts recently landed a professor in controversy after a complaint from a student who supports the president, according to the Enterprise. E
nglish professor Garrett Nichols used his personal Facebook account to make a post likening Trump voters to Ku Klux Klan members, and another that stated “F--- Donald Trump. F--- ANYONE who voted for Donald Trump. F--- ANYONE who tries to explain to me the ‘real’ needs of the people who voted for Donald Trump.”
The university confirmed to the Enterprise on Sept. 28 that Nichols had been placed on paid leave due to concerns over his personal safety. He had reportedly received multiple threats.
While private-sector employers are free to fire or discipline employees over their statements without facing First Amendment violations, there are gray areas when a government entity is the employer.
The First Amendment limits the government from interfering in free speech or free expression.
“None of these statements seem to be made by people in their official capacity,” Duncan said. “My sense of it is all three of these are presumptively matters of public concern and not in the scope of employment, and are presumptively protected by the First Amendment.”
Lawrence Friedman, a constitutional law professor at New England Law | Boston, said there is legal precedent for treating the government differently when it’s acting as an employer.
“The government in a role of an employer is in a different position than when it is acting as the government enacting the law,” Friedman said. “If the government organization were to sanction employees, it’s not necessarily a violation of the First Amendment.”
But, like many areas of the law, there are many gray areas and arguments to be made on multiple sides, Friedman said.
Friedman also discussed the importance of academic freedom in the context of the First Amendment.
“The Supreme Court recognizes that universities are places where the free exchange of ideas should be unregulated,” Friedman said.
The U.S. Supreme Court has held that when public employees make statements in their official capacities, the First Amendment doesn’t protect them from employer discipline, said Lauren Goldberg, managing attorney for Boston-based firm KP Law, which specializes in public sector legal matters.
“In contrast, when public employees are speaking as private citizens about matters of public concern, a public employer’s ability to discipline an employee in such circumstances is likely more limited,” Goldberg said. “Ultimately in these cases much of the legal and factual debate centers on whether the employee’s speech was uttered in connection with the duties of the employee’s position, if the speech involved a matter of public concern and whether the speech that is the focus of the discipline had the potential to disrupt the public employer’s operations.”
Factors to consider, Goldberg said, include whether a public employee is speaking as a private individual; whether the speech is protected free speech, or “fighting words”; and whether the topic was a matter of “public concern” as opposed to a personal grievance.
“Understanding that frequent use of social media is more and more commonplace, we anticipate that these matters will continue to be challenges for public employers, and in turn, that there will be further litigation concerning such matters,” Goldberg said.