by Joseph S. Burns
The Dover, Delaware City Council recently rejected a proposed policy that would have regulated city employees’ activities on social media networks by prohibiting employees from posting:
(i) Negative comments based on a person’s race, gender, or other legally protected
(ii) Disparaging comments about co-workers
Both such prohibitions will apply regardless of whether such comments were posted from work or from one’s own home.
Council members concluded that the policy, drafted by the City Manager to protect the city from liability arising from on-line harassment, would have infringed employees’ rights under the First Amendment, an opinion shared by the ACLU, which had contacted City Council, cautioning that the proposed policy constituted a “clear violation” of First Amendment rights. While various governments across the country have adopted social media policies, courts have consistently found that overly restrictive policies infringe the First Amendment, protecting the rights of governmental employees.
The key, in short, is for a local government to adopt a policy that strikes an appropriate balance between that local government’s legitimate interests and the rights of its employees under the First Amendment.