Policy On Employee Social Media Posts in New Hampshire Town Raises First Amendment Concerns

By Zachary Carlton

One day during my first job after college, a supervisor called me into his office to discuss what someone thought was an inappropriate picture of me on social media.

A gun enthusiast, I had recently posed for a photo in front of a Christmas tree holding a rifle I recently purchased. A town resident apparently found the combination of a weapon and holiday scenery to be offensive, despite me — a town employee at the time — finding humor in the juxtaposition.

It was this memory that came to mind when I read of Alex Morin of Farmington, New Hampshire. Morin, a now-former firefighter, posted several relatively benign comments on a community Facebook page and lost his job as a result. The ACLU of New Hampshire is now fighting on behalf of Morin’s First Amendment rights, calling his termination unconstitutional.

Here’s what happened: According to Morin’s complaint against the town of Farmington, he posted to Facebook public comments about how residents should refrain from spreading sensitive information during emergency situations. For example, Morin wrote, “How do you think people would feel finding out that their 38 year old child or friend . . . isn’t conscious or breathing from the Farmington news page? Have some decency and stop being nosey (sic). My opinion.” (emphasis added).

Morin argued in his complaint that he never expressed his opinions in an official capacity as a public employee, that he wasn’t hostile or offensive, and that he never revealed any information received by virtue of his position. Still, he was fired for violating the town’s social media policy.

It’s a policy the ACLU believes violates the First Amendment. In an amicus brief filed in Morin’s case, the ACLU wrote:

“If First Amendment protections are to enjoy enduring relevance in the twenty-first century, they must apply with full force to speech conducted online and through social media platforms, especially where this speech is of public concern and by government employees who are more likely to have informed opinions as to how the government operates.”

Morin is accused of violating two sections of the town’s social media policy. The first prohibits employees from expressing themselves on social media in a way that would negatively affect public perception of the town. The second prohibits posting without permission information that they have access to by virtue of their position.

In Morin’s wrongful termination suit against the town and several town officials, he claimed that his dismissal violates both state and federal laws protecting speech rights of public employees. According to Morin’s complaint:

New Hampshire State Law
RSA 98-E provides municipal employees like him the “full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies.” When Morin gave his opinion as an individual on Facebook it was protected speech whether or not it cast a negative light on the town.

Federal Law
As long as a public employee’s speech is a matter of public concern and does not negatively affect the government’s ability to fulfill its responsibilities then that speech is protected under the First Amendment of the U.S. Constitution. Morin cautioning community members about sharing details of emergencies is in the public interest and doesn’t impede the town’s ability to fight fires.

In its brief, the ACLU supported Morin’s arguments, asserting that “[t]his is not a close question, especially given the fact that the policy is not limited to situations where an employee’s speech actually impairs or impedes the performance of his or her job duties.”

In other words, had the town’s social media policy confined itself to prohibiting posts that prevent an employee from affectively doing their job or a city from fulfilling its responsibilities then there would be less constitutional concern. But the Farmington social media policy didn’t limit itself in that way and instead was overly broad and unreasonably restrictive of speech rights.

In comparison, consider this Boston area firefighter who was fired about a year ago for making racist comments about responding to “the next fire call” while his profile picture featured a fire truck. This firefighter, unlike Morin, directly linked a fire department to an obviously offensive post that could have made it more difficult for his department to interact with the public.

Government employers need to be careful when crafting social media policies and enforcing them. While a government has the right to protect its ability to function, that right can’t impede on the First Amendment freedoms of its employees. The town of Farmington may ultimately learn this lesson the hard way.

As for me? Unlike Alex Morin, I was at least given the option to remove my social media post. I begrudgingly took down the rifle photo, though I now know I shouldn’t have been asked to in the first place.

Zachary Carlton is a rising second-year law student at New England School of Law | Boston. He is a 2017 summer legal fellow for the New England First Amendment Coalition.

Above photo provided by Fickr user Jason Howie and used under a Creative Commons 2.0 license

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC for this year include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.

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