Carr v. Department of Transportation
- EPIC Amicus: Public Employees Must Be Able to Speak Freely on Social Media, "the Modern Public Square": In an amicus brief EPIC urged the Pennsylvania Supreme Court to protect the right of public employees to speak on matters of public concern on social media without fear of dismissal. The case, Carr v. Department of Transportation, concerns a state employee who was fired for comments posted to a Facebook group criticizing local school bus drivers. EPIC explained that "social media is 'the modern public square' for debate on issues of public concern," citing the U.S. Supreme Court's opinion in Packingham v. North Carolina, in which EPIC also filed an amicus. EPIC warned that "allowing the Government to fire a public employee for posts made in a private Facebook group would encourage government supervisors to surveil employees across social media." EPIC has frequently argued that the First Amendment protects the right of individuals to engage in activities free from government surveillance, in cases including City of Los Angeles v. Patel, Doe v. Reed, and Americans for Prosperity v. Becerra. (May. 7, 2019) More top news »
This case concerns the constitutional protections for public employee speech online. Rachel Carr, a Pennsylvania Department of Transportation employee, used her personal Facebook account to post, off-duty, a “rant” in a Facebook group about the unsafe driving of local bus drivers. Members of the Facebook group sent screenshots of her interactions to the Department of Transportation's Facebook page. The Department conducted an investigation and ultimately fired Carr because of the Facebook posts. The State Civil Service Commission upheld the dismissal. The Commonwealth Court reversed. The court followed the U.S. Supreme Court’s test to determine the constitutional protections for public employee speech in Pickering: (1) whether the employee spoke as a citizen on a matter of public concern; and (2) whether the government had an adequate justification for treating the employee differently from any other member of the general public. The court found that the comments were on an issue of public concern—the unsafe driving of local bus drivers—and that the government's justifications for dismissing Carr involved merely speculative harm.
Rachel Carr, who worked in road maintenance at the Pennsylvania Department of Transportation, used her personal Facebook account to post, off-duty, a “rant” in a Facebook group:
Rant: can we acknowledge the horrible school bus drivers? I'm in PA almost on the NY boarder [sic] bear [sic] Erie and they are hella scary. Daily I get ran off the berm of our completely wide enough road and today one asked me to t-bone it. I end this rant saying I don't give a flying shit about those babies and I will gladly smash into a school bus.
Carr responded to comments on the Facebook thread for the next five hours, emphasizing that she should not be forced to put herself at risk due to the unsafe driving of school bus drivers. Members of the Facebook group sent screenshots of her posts to the Department’s Facebook page after finding that her Facebook profile listed the Department as her employer. The Department conducted an investigation and ultimately fired Carr because of the Facebook posts.
Public employees cannot be fired for exercising their constitutional rights. But because the government as employer has some legitimate interest in regulating employees’ speech, not all speech of public employees is protected by the First Amendment. A government employee’s speech is protected by the First Amendment if
- The employee spoke as a citizen on a matter of public concern; and
- The relevant government entity did not have an adequate justification for treating the employee differently from any other member of the general public, based on the government’s interests as an employer.
An employee speaks as a citizen if the speech is not part of the employee’s ordinary job responsibilities, e.g., the speech is not contained in a memorandum the employee was assigned to write as part of their employment. An employee speaks as a citizen even if the content of what they speak is learned on the job. Speech involves a matter of public concern when the speech relates to any political, social, or other community matter or when the issue is of general interest, value, or concern to the public, e.g., when a subject is newsworthy. Employee grievances that do not shed light on government functions that affect the general public are not considered matters of public concern.
The second step of the inquiry involves balancing the First Amendment interests of the employee with the government’s interests as an employer. Some of the factors include whether the speech negatively affected the employee’s close working relationships, whether the speech indicates that the employee is unable to perform their core job functions, whether the speech affects the government agency's ability to function, and the time, place, and manner of the speech.
Carr appealed her dismissal with the State Civil Service Commission, claiming that the Department discriminated against her in violation of the First Amendment and Section 905.1 of the Civil Service Act. The Department’s Human Resource Officer testified that Carr’s comments undercut the Department’s goal to ensure the safety of the traveling public, but also noted that the comments likely had no effect on her ability to perform her job duties. The Department’s Labor Relations Supervisor testified that Carr’s conduct on Facebook, and not her job performance, lead to the termination. Both Department employees testified that Carr was not treated differently than other employees in similar situations.
The Commission affirmed Carr’s termination. The Commission found that Carr had not presented any evidence showing that she was treated differently than any other employee. The Commission also credited the Department employees’ testimony that Carr’s comments “brought disrepute to the [Department] and raised issues of trust.”
Carr appealed the Commission’s determination. She alleged the Department violated her First Amendment right to free speech when the Department terminated her employment for social media comments posted off-duty. The court applied the Pickering analysis to determine the constitutional protections afforded to Carr as a public employee.
First, the court held that Carr’s comments addressed a public concern: the dangerous driving of local bus drivers. The court also held that the Department did not have adequate justification to treat Carr differently than other members of the public. The court used four factors to balance Carr’s interest in engaging in free speech with the Departments’ countervailing interest.
First, the court rejected the Department's argument that the Department reasonably predicted that it would be prevented from carrying out its goal of keeping the traveling public safe because Carr’s comments indicated that she was “capable of violent behavior.” The court found the prediction “speculative” and “based upon a mischaracterization of Carr’s comments,” which were not threats of violence but an expression of her frustration in having to take “evasive maneuvers” in response to unsafe bus drivers.
The second factor - whether Carr’s speech impaired her ability to carry out her responsibilities - weighed in Carr’s favor because Department employees testified that Carr’s comments did not affect her ability to perform her job.
The third factor - whether Carr’s speech interfered with essential and close working relationships - also weighed in Carr’s favor because there was no evidence that Carr’s comments adversely affected her work relationships.
The fourth factor - the time, place, and manner in which Carr’s speech occurred - weighed “slightly” in favor of the Department because a global social media forum was “not the most effective arena” to address concerns about local bus drivers.
The State and the Department appealed the decision to the Supreme Court of Pennsylvania, which granted the petition.
Protecting freedom of expression is one of EPIC's primary organizational goals. EPIC has filed many amicus briefs in cases that raised First Amendment concerns, including three before the U.S. Supreme Court: Packingham v. North Carolina, Doe v. Reed and Watchtower Bible v. Stratton. Several, including Packingham and Herrick v. Grindr address First Amendment protections on social networks.
Pennsylvania Supreme Court, No. 3 MAP 2019
Pennsylvania Commonwealth Court, 189 A.3d 1 (Pa. Commw. Ct. 2018)
- Brief of Petitioner (Nov. 20, 2017)
- Brief of Appellee Department of Transportation (Jan. 17, 2018)
- Brief of Appellee State Civil Service Commission (Jan. 17, 2018)
- Opinion (Jun. 12, 2018)
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