WEBVTT 1 "Marty Casserly " (2988247040) 00:00:00.871 --> 00:00:21.590 Good afternoon, everyone. Welcome to the attorney General's office. My name is Mighty Cassily, and I'm the co chair of the office training committee. And we have scheduled a 1 h and 15 min program sealie. The title of it is 1st Amendment Issued for. 2 "Marty Casserly " (2988247040) 00:00:21.590 --> 00:00:41.590 Government employers with private social media posts of their employees. Before I introduce the speaker, couple background information this program has been approved by the Minnesota CLE board for 1.25 standard credit. The event code number is five. 3 "Marty Casserly " (2988247040) 00:00:41.590 --> 00:01:07.220 342907. We are going to periodically post that number up on the chat as well as we are posting the speaker's PowerPoint slide as well as he also has a handout. So they're going to be two links on the chat that will be posted. We also send them in the post CLE email. 4 "Marty Casserly " (2988247040) 00:01:07.220 --> 00:01:27.230 We encourage questions and if you have questions, you'd like to direct to the speaker, post them on the chat. He is saving time at the end, so we will try to get to the questions at the end. With that, I'll introduce our speaker. Brett Bacon is an assistant county attorney with the ramsey county. 5 "Marty Casserly " (2988247040) 00:01:27.230 --> 00:01:49.788 Where he does civil litigation. Brett graduated from Benjamin Cargozo School of Law in 2016. After law school, he was a staff attorney for 2nd circuit staff attorney's office. He worked with the New York City law department, Minnesota Attorney General's office, and Thompson Ruders. And with that, I'll turn it over to Brett. 6 "Brett Bacon" (1878646016) 00:01:49.788 --> 00:02:06.600 Alright, thank you very much this presentation. So happy to be here, everyone. So today we're gonna talk about 1st timement issues with private social government employees. 7 "Brett Bacon" (1878646016) 00:02:06.600 --> 00:02:26.040 So what do I mean about that? Essentially we're talking about what happened last year, the wake of Charlie kirk's dissassination. As most of us remember, there were a number of employees fired from their positions both private and public. 8 "Brett Bacon" (1878646016) 00:02:26.040 --> 00:02:46.040 Employers for making posts critical of Charlie Kirk in the wake of his disasternation. These are just a few of the numerous headlines that dominate the news for a week or two. We know Microsoft fired a number of their employees as well as other big employers. And the news also mentioned. 9 "Brett Bacon" (1878646016) 00:02:46.040 --> 00:03:08.990 In that there were some of government employees, namely teachers who were fired for making similar posts. Now, as we know, private employers have, a great deal of latitude to fire their employees for speech that they disagree with, with exceptions such as things related to labor protections, whistle blowing. 10 "Brett Bacon" (1878646016) 00:03:08.990 --> 00:03:33.560 But when we're talking about public employers, they have a major obstacle to to fire in their employees or discipline their employees for certain speech that they make in their private social media posts, and that's the 1st amendment. So, when we talk about social media and government employment, we can, we can talk a lot. There's a lot of. 11 "Brett Bacon" (1878646016) 00:03:33.560 --> 00:04:04.430 Different points to talk about, but I am more interested in just giving you a presentation just about situations where government and employers become aware that an employee has posted something controversial to their private social media account, and the government employer becomes aware whether it be through a complaint of a coworker or as we're seeing more and more, as the result of this coordinated social media campaign has happened a lot in. 12 "Brett Bacon" (1878646016) 00:04:04.430 --> 00:04:30.710 In the wake of Charlie Kirk. There's some right right winging left winging organizations that direct their followers to employers with messages, social media messages, calls, texts demanding that employee be fired. This is a situation that's not gonna go away as more and more people use social media and it becomes more and more tangled in life. 13 "Brett Bacon" (1878646016) 00:04:30.710 --> 00:04:46.919 It's just a matter of time before an employer has a situation. So this is a hot topic, it will continue to be a hot topic. So hopefully this presentation will give you some tools on how to handle the situation if you're a government attorney. 14 "Brett Bacon" (1878646016) 00:04:46.919 --> 00:05:06.419 And, and in connection with that, if a an employer decides to fire their employee for speech on on their social media account, a lot of this presentation will talk about how to handle any potential litigation from that disciplined or fired employee. 15 "Brett Bacon" (1878646016) 00:05:06.419 --> 00:05:21.629 At the very end, I'll just give you some practical tips on how to handle, the, the initial phases of any social media campaign that might be attacking your employer that's gonna pressure the employer to either fire or disciplined employee. 16 "Brett Bacon" (1878646016) 00:05:21.629 --> 00:05:39.419 For their private speech. So broad overview we're gonna talk about, so we'll have a exam of the 1st amendment legal landscape, go over some examples, go over some practical advice on how to handle these situations, prepare for litigation from split employees by collecting identifying where to find. 17 "Brett Bacon" (1878646016) 00:05:39.419 --> 00:05:57.629 Helpful evidence and where to look for, just to talk to employees that help your case and I'll just recommend some quick patches to social media policies that will just tell employees that their private social media speech can affect their employment. 18 "Brett Bacon" (1878646016) 00:05:57.629 --> 00:06:12.899 So, let's assume, the unfortunate happens. Your government employer tells you, hey, this guy said something that we disagree with online and we fired him without consulted deal. 19 "Brett Bacon" (1878646016) 00:06:12.899 --> 00:06:31.379 Okay, well, now, it's very likely that employee will sue your employer for a 1st amendment retaliation claim under 1983. So what's, what's, what's a retaliation claim? Well, let's go over the elements. So, the 1st element of retaliation claim. 20 "Brett Bacon" (1878646016) 00:06:31.379 --> 00:06:51.379 Is that planetiff must prove that they engaged in activity protected by the 1st amendment. Second they must prove that the employer took adverse action here firing or just discipline. And three, planetiff must prove that the protected speech was a substantial or motivating factor in the employer's decision to take. 21 "Brett Bacon" (1878646016) 00:06:51.379 --> 00:07:14.789 At the adverse employment action. Are we talking about this specific situation where an employee is fired or disciplined for speech, we're gonna solely focus on the 1st element of determining whether the speech had issue was in fact protected by the 1st amendment. So that's a retaliation claim. Before I get more into. 22 "Brett Bacon" (1878646016) 00:07:14.789 --> 00:07:30.179 Talking about what the retaliation claim looks like in a 1st movement of lawsuit. I I want to talk about instances where, a social media post may constitute what's called a true threat. 23 "Brett Bacon" (1878646016) 00:07:30.179 --> 00:07:50.179 Many of you may remember from the law school. There are certain kinds of speech that are categorically not entitled to 1st member protection. And those are senity deformation, fighting words, true threats, and incitement of imminent lawless action. When we're talking about social media. 24 "Brett Bacon" (1878646016) 00:07:50.179 --> 00:08:12.079 It's almost always gonna be a consideration of whether the post constitutes a true threat. And I, and I should say bulk of this presentation will focus on whether speech is pro protected in the circumstances under the garcettedi Pickrane analysis. If you read those lines. 25 "Brett Bacon" (1878646016) 00:08:12.079 --> 00:08:39.979 The cases in their application, they never talk about what they never talk about whether the posted issue is a true threat. But I bring it up here just because, let's say you're in a situation where an employee makes a post that could be considered a true threat. I don't want to mislead you to say like, ok, well, here's something threatening they posted. Let's do this whole analysis, which you'll see is pretty complicated in the time. 26 "Brett Bacon" (1878646016) 00:08:39.979 --> 00:09:05.779 Intensive, but if you know, if you remember like oh wait, this is a true threat of violence, you can say immediately, oh, ok, that's a true threat we could take action and protect our employees. So it's just good to be aware of, what could constitute as a true threat. Just another, just have another tool in your toolbox when you're looking at these claims. So with that, let's go to explaining what a true threat is. A true threat is a serious. 27 "Brett Bacon" (1878646016) 00:09:05.779 --> 00:09:25.019 This Expression conveying that a speaker means to commit an actful act of unlawful violence. I highlight serious because that is the main inquiry when we're to determine whether something is or is not us a true threat. And I have two cases that similar facts that will. 28 "Brett Bacon" (1878646016) 00:09:25.019 --> 00:09:43.739 Kind of explain the difference. So let's start with a case in which the court found that a jury could reasonably believe believe that the person who made a social media post events a serious intense to commit an actual unlawful act of violence. 29 "Brett Bacon" (1878646016) 00:09:43.739 --> 00:10:00.989 So in this case, this comes from a 5th circuit case called United States versus Parez. In this case mr. Perez posting here as Christopher Robbins was convicted of portraying a hope's biological weapons attack. 30 "Brett Bacon" (1878646016) 00:10:00.989 --> 00:10:20.989 And this is because the, he made the posts around April of 2020. As you can see from this post, mr. Prez was evidently annoyed that people are ignoring the stayed home orders and still going out for grocery stores. 31 "Brett Bacon" (1878646016) 00:10:20.989 --> 00:10:38.879 In the area. So mr. Prayez made this post. Hey, Heb Marcado, that's Mercado Texas. HAB is a grocery store chain. My friend here has COVID. He, he looked a bunch of stuff, we paid him to do it. 32 "Brett Bacon" (1878646016) 00:10:38.879 --> 00:10:58.879 We told you to stay at home, everyone told you to stay at home. This is what you get. So if you look at this post, you can kind of see that there is some joking intent here, namely with the four laughing emojis. So you can make an argument saying like, oh, well, NO, this is not serious. He's clearly joking. He's using laughing emojis. 33 "Brett Bacon" (1878646016) 00:10:58.879 --> 00:11:19.799 No one would actually do that. But then mr. Prez made a second post similar in tone, he actually had a picture of the HUB in Novalidos and said like, hey, I tried to warn you, going to this, going to this grocery store, person with COVID-19 is gonna look a bunch of stuff, told you. 34 "Brett Bacon" (1878646016) 00:11:19.799 --> 00:11:39.799 And then he was arrested, and convicted of this hopes perpetrainer hopes biological weapons attack. He raised the 1st amendment challenge to the conviction. The district court dismissed that challenge of the fist circuit of held to get conviction. And it said that even though there's some. 35 "Brett Bacon" (1878646016) 00:11:39.799 --> 00:12:01.009 Arguable, joking intent behind these posts. A jury could reasonably believe that this was a serious post vincing a serious intent to spread to COVID-19, namely because he named particular locations. He said, where. 36 "Brett Bacon" (1878646016) 00:12:01.009 --> 00:12:31.129 Who's gonna do it, why he's doing it, and doing it and he's wanted to do it just to keep people at home and he wanted to do that through an arguable act of violence. So here's where, I guess where the 5th circuit said, this is enough to constitute a true threat, this is enough to events a serious intentive committed act of violence. Therefore, it's a true threat not entitled to 1st member protection. Then non serious. Similar case also from the 5th circuit, this is a. 37 "Brett Bacon" (1878646016) 00:12:31.129 --> 00:12:50.249 Nine, this is from a 1983 case called Bailey versus Aisles. In this case, mr. Bailey Ganny made this post about March, April of 2020, he said, hey, I just heard the sheriff's office is gonna go around and shoot the infected one site. 38 "Brett Bacon" (1878646016) 00:12:50.249 --> 00:13:07.439 Lord have mercy on us all. Mr. Bailey was arrested, but his charges were dropped, then he brought a 1983 claim. The district court thought this was enough to constitute a true threat. It, it thought that. 39 "Brett Bacon" (1878646016) 00:13:07.439 --> 00:13:24.059 That the indication that a particular agency was gonna shoot people. Now, that was enough for them to say, No, this is a true threat. Well, the fist circuit reversed saying that there was enough here to infer that there was a joking intent. 40 "Brett Bacon" (1878646016) 00:13:24.059 --> 00:13:42.239 That would undermine that that would make a jury believe that this is not a serious threat. And name, the one thing that the 5th circuit pointed out, which is funny, but also very important to its analysis is that mr. Bailey used the hashtag, we need you Brad pit. 41 "Brett Bacon" (1878646016) 00:13:42.239 --> 00:13:59.069 This is evidently a reference to the movie World War Z in which mr. Pitt was by fighting zombies. So that was important to the 5th circuits analysis and that was just enough to. 42 "Brett Bacon" (1878646016) 00:13:59.069 --> 00:14:19.069 Turn it from what could be considered serious threat of violence, to a non serious threat of viol non serious threat of violence, and the court says this is not a true threat in total the 1st member protection. And, and here we'll talk about the bulk of the presentation, and where you can encounter most of the time in these situations. Most of the time it's not gonna be a true threat. 43 "Brett Bacon" (1878646016) 00:14:19.069 --> 00:14:39.069 There's not gonna be any other, any other thing that falls under categorical categorically non protected speech. You're gonna consider whether the speech is protected under the circumstances. And here we'll look at the three part tests under Garciti and Pickering. Both of these are United States Supreme Court cases. 44 "Brett Bacon" (1878646016) 00:14:39.069 --> 00:14:54.899 Quick note, the eight circuit is alone in using a three part test. Every other circuit just has two. The, the, the circuit is unique in requiring this. 45 "Brett Bacon" (1878646016) 00:14:54.899 --> 00:15:14.699 Second element of of requiring the defendant to have some evidentiary burden to show that there was some impact on, there was some impact from the speech and issue on their operations. But as I'll explain later, there's NO material difference in terms of outcomes. 46 "Brett Bacon" (1878646016) 00:15:14.699 --> 00:15:34.699 If, if, if the employer presents enough evidence at element two, it's in my research, it's gonna have enough to get past the pick rate balancing analysis. It'll be in the employer's favor, meaning that the speech is not protected, and the employer was ok in its actions. 47 "Brett Bacon" (1878646016) 00:15:34.699 --> 00:16:02.849 So let's go step by step with all these elements. So let's talk about a step 1a1A speaking as a citizen, well, what does that mean? Essentially it just means that if an employee speaks in their official capacity, they're not speaking as a citizen. They're speaking as an employee and therefore it's not protected. Yeah and if they're speaking, if they're not speaking in their official capacity, almost always it's gonna be an issue where. 48 "Brett Bacon" (1878646016) 00:16:02.849 --> 00:16:22.849 The employer or the employee is posting on their Facebook after hours at home, they don't identify themselves as an employee of the employer. That's not gonna, that's not gonna be speaking their official capacity, and that's potentially protected speech depending on how the rest of the analysis goes. 49 "Brett Bacon" (1878646016) 00:16:22.849 --> 00:16:53.269 So usually this is a pretty clear cut, but there are cases where it could be a little on the edge. E.g., there's one case where, a fire chief was fired after he didn't interview near a firy car crash in his district. He on, he had on his uniform and he was saying that the the county board's actions of not sufficiently funded. 50 "Brett Bacon" (1878646016) 00:16:53.269 --> 00:17:19.139 Being his department led to this and led to the loss of life. And there's an argument saying like, well, yeah, these are important issues, people care about this, and he can arguably be speaking as a voter, but, the court disagreed saying, well, he was in his uniform on the side of the road in front of cameras. That's pretty unique to someone. 51 "Brett Bacon" (1878646016) 00:17:19.139 --> 00:17:39.139 Speaking with that ability to speak, they could speak in their capacity as the fire chief and there's enough there to infer that, yeah, he was speaking as official capacity because he had everything on just normal person wouldn't wouldn't be able to stand in front of a press conference, and that was enough to determine, yeah, he was not speaking as as a non protected speech. 52 "Brett Bacon" (1878646016) 00:17:39.139 --> 00:17:55.979 Another thing to look for, does the employee ID themselves as a government employee on their social media account? Usually, sometimes they do, sometimes they don't, but, as you may see from some of these campaigns. 53 "Brett Bacon" (1878646016) 00:17:55.979 --> 00:18:11.639 People have got a lot more savvy in connecting a a social media account like Facebook where an employee does not post where they work, but then they connect that account to that person's LinkedIn where they obviously. 54 "Brett Bacon" (1878646016) 00:18:11.639 --> 00:18:31.639 Posts where they work and they say like, hey, I connected these two. This person works here, I don't like the speech. Employee employers should fire them. There has been litigation that I can find in this how there's some ways on this issue, but I'm sure we'll find out, in the coming months, years. Side note, but important independent contractor. 55 "Brett Bacon" (1878646016) 00:18:31.639 --> 00:18:50.279 These are entitled to the same 1st member protections we're gonna talk about today. So without going to step one B speaking on a matter of public concern, well what is a public concern? It's just speech that's fairly related to a matter of political, social or other concerns to the community or something that's. 56 "Brett Bacon" (1878646016) 00:18:50.279 --> 00:19:08.369 Subject of legitimate news interest. As you can imagine, this is pretty broad, almost always, of course gonna find that the employee was speaking on a matter of public concern, very narrow exception is if the, whatever they posted online. 57 "Brett Bacon" (1878646016) 00:19:08.369 --> 00:19:28.369 Is just about an intra office dispute, stuff like my coworker does blah blah blah. My boss does, I don't like the way he organizes desk or something. That could just be an intra office dispute and that would be a good case to show that it would not be protected speech cause it's not addressing a matter of public. 58 "Brett Bacon" (1878646016) 00:19:28.369 --> 00:19:49.159 Concern. So now let's talk about step two where the bulk of the analysis occurs, producing evidence of disruption. So here's what the eight circuit says, so so let's say that you're able to show or the employees were in the show, I was speaking at as a citizen on a matter public concern. Okay. 59 "Brett Bacon" (1878646016) 00:19:49.159 --> 00:20:09.259 A circuit now says, employer, if you want to get to the pick rain balancing issues, you have to show us some evidence that what the employee said had some, created some workplace disharmony or impeded the plainest performance or in a paired of working conditions. 60 "Brett Bacon" (1878646016) 00:20:09.259 --> 00:20:38.009 I emphasize working, working in workplace because as you'll see, a lot of these campaigns can create a lot of noise on social media and possibly news media, but it doesn't necessarily affect the actual operations of the employee. So and we'll talk about that shortly, but important to know the the court doesn't require an employer to wait for an actual. 61 "Brett Bacon" (1878646016) 00:20:38.009 --> 00:20:54.809 Disruption to occur, the the court says the employer can present a, a reasonable prediction of disruption and the court can give that substantial weight and determine whether the employer made a sufficient showing that. 62 "Brett Bacon" (1878646016) 00:20:54.809 --> 00:21:10.889 The employee speech could create this disruption to operations. So I have a case that is a good illustration of this. This is one of the easier cases in which an employee posts something online. 63 "Brett Bacon" (1878646016) 00:21:10.889 --> 00:21:28.139 There's some pushback internally, but NO pushback from social media community at large. In that case is Palmer versus the county of the Noka. So in this case, Planniff was a former spokesperson. 64 "Brett Bacon" (1878646016) 00:21:28.139 --> 00:21:43.619 For the Anoka County attorney. And what happened here is she was fired after making two posts to her a private Facebook account commenting on the interaction between poverty, race, and police violence. 65 "Brett Bacon" (1878646016) 00:21:43.619 --> 00:22:03.619 Again, there's NO outcry from the public calling for her to be fired, but what did happen is the the county sheriff called the county attorney after she made these comments saying like, hey, you, your, your employee, the spokesperson for the county attorney's office is making comments. 66 "Brett Bacon" (1878646016) 00:22:03.619 --> 00:22:27.709 That I find are disrespectful to law enforcement. And the 1st the 1st post she made, she deleted after the county attorney told her so and said like, hey, your, your posts can have an impact on your employment and that's in her social media policy. So she made one post and she made a similar post again critical of law enforcement, and I. 67 "Brett Bacon" (1878646016) 00:22:27.709 --> 00:22:47.339 After that she was fired. So, the, the court grants the toll be six motion to dismiss in this case. Why? I mean 1st I want to mention that a lot of these cases will not be resolved on a toll be six motion. And that's just because. 68 "Brett Bacon" (1878646016) 00:22:47.339 --> 00:23:03.359 A lot of evidence is gonna be in emails, and documents. But what makes this case different is that the planetiff alleged the disruption to operations in her own complaint. She said. 69 "Brett Bacon" (1878646016) 00:23:03.359 --> 00:23:23.359 She alleged that I made these posts and this was the reaction to the post and I was fired as a result, and that's enough for the court to rule for the county on a 12B6. So the court went through the analysis in her City, said, Yeah, she was speaking as a citizen on a matter of pu. 70 "Brett Bacon" (1878646016) 00:23:23.359 --> 00:23:40.769 No concern, these are policing and their interactions with race and poverty are obviously a hot topic they were in 2016 and they still are. That's, yeah, that's fine, but there was enough evidence of disruption to say. 71 "Brett Bacon" (1878646016) 00:23:40.769 --> 00:23:58.259 This is your comments cause internal strike between the county attorney and the county sheriff's office, back disrupted operations, therefore not entitled diverse member protection. So how did we come to that conclusion? So it looked at the allegations. 72 "Brett Bacon" (1878646016) 00:23:58.259 --> 00:24:14.249 And again, it said it found that the sheriff complained about it, and it's not enough that the sheriff just complained about it. It was the fact that there was this relationship between the sheriff and the county attorney's office, namely that. 73 "Brett Bacon" (1878646016) 00:24:14.249 --> 00:24:34.249 The the county attorney represents the sheriff in court. And the the the court noted that if there has to be this a level of trust between the attorney and his client in order to have an effective attorney client relationship. And if the person who is the spokesperson. 74 "Brett Bacon" (1878646016) 00:24:34.249 --> 00:25:00.509 For the county attorney are making these comments critical of law enforcement, that's gonna disrupt that trust between the county attorney and the county sheriff. And, it also looked at the, the Miss Palmer's duties. It it be it might be one thing if Miss Palmer was not the spokesperson, maybe she was just working as a janitor. 75 "Brett Bacon" (1878646016) 00:25:00.509 --> 00:25:17.579 For the county attorney's office, but as a spokesperson her job duties and her daily job activities, because again, don't just rely on a job description in these cases, part of her daily activities were to communicate on the county office's behalf. 76 "Brett Bacon" (1878646016) 00:25:17.579 --> 00:25:37.579 To community leaders, the media and the public. And the court's reasoning was that, well, if the the county attorney spokesperson is airing these criticism of belaw enforcement, that might impair the public image of trust between the, the county attorney and the county sheriff's office. 77 "Brett Bacon" (1878646016) 00:25:37.579 --> 00:26:01.729 So that's an easier case. We're strictly just talking about how this post interrupted, the, the internal workings of the department, there was sufficient evidence of disruption, and therefore the posts were not entitled the 1st member protection. So with that, let's go to a harder case. This is case is also in the its circuit called Meltan versus City of Orac city or Arkansaura. 78 "Brett Bacon" (1878646016) 00:26:01.729 --> 00:26:17.309 And, if, if many of you probably don't know Forest City Arkansa, I didn't before I researched this case, but it's a heavily black community in the mini, in the middle of the Mississippi Delta and. 79 "Brett Bacon" (1878646016) 00:26:17.309 --> 00:26:36.149 So what happened here was that mr. Mountain was a, a white firefighter in the area and he made this post around the George Floyd Murder in 2020 and posted this is basically on the left hand side. 80 "Brett Bacon" (1878646016) 00:26:36.149 --> 00:26:56.149 And, he, a lot of people complained about it and was eventually fired for the post because in the mayor's words, I'm concerned that this post will create a huge firestorm of controversy. Again, the court can rely on reasonable predictions of disruption. It doesn't have to wait. 81 "Brett Bacon" (1878646016) 00:26:56.149 --> 00:27:17.789 Build the actual disruption can occur. So so in that vein, the mayor said like, Yeah, we're a heavily, we're heavily black community. This is a white firefighter posting something racist. This is gonna affect our, our operations and it had evidence too. He said that a retired fire department's supervisor. 82 "Brett Bacon" (1878646016) 00:27:17.789 --> 00:27:37.789 Said that he was upset by the posting. The fire chiefs phone was blown up with angry calls in reaction to the post. Several police who officers in the community became upset, voiced those concerns, as well as several city council members and citizens. I got to the point where a lot of citizens complain. 83 "Brett Bacon" (1878646016) 00:27:37.789 --> 00:28:05.669 I don't want we're saying that I don't want this white firefighter fighting a fire in my house because I I don't feel safe around him. And, and the mayor just said, yeah, I think this, this seemingly races pose is gonna affect the public's trust in the fire department. So yeah, you can there's a reasonable case to build here that this was enough, to show that there was a reasonable prediction of disruption to operations. 84 "Brett Bacon" (1878646016) 00:28:05.669 --> 00:28:25.669 And that should not be protected speech. So what did they circuit do? It said, the journey needs to decide whether this was there was sufficient evidence of disruption here. And and the court addressed the the mayor's concerns and how it weighed into this analysis. It, it said. 85 "Brett Bacon" (1878646016) 00:28:25.669 --> 00:28:52.099 Yes, the courts do give substantial weight to the employer's predictions of disruption, but the only evidence of workplace disruption that is within the fire department itself was just vague and conclusory. And this is what the evidence was. Just very lack, very, a big lack of evidence that this post caused any controversy within the department. 86 "Brett Bacon" (1878646016) 00:28:52.099 --> 00:29:15.859 Able to carry out his duties after the post, the fire department training went on unaffected, and NO fire department employer refused to work with the planetiff because of these posts. So that was enough for the circum to say this is a jury question, we can't decide this on a matter of law that this evidence of a big public appeaval was enough to show. 87 "Brett Bacon" (1878646016) 00:29:15.859 --> 00:29:37.079 Disruption to operations. And very importantly, the court mentioned this. It said, it essentially said that granted, if we granted summary judgment here, just based on the mayor's allegations that there was this big public reaction. 88 "Brett Bacon" (1878646016) 00:29:37.079 --> 00:29:54.179 If that's all the evidence there is, the court would run the risk of constitutionalizing a Heckler's veto. Very important concept, so what is a heckler's veto? So this is essentially what it is. 89 "Brett Bacon" (1878646016) 00:29:54.179 --> 00:30:12.779 A Hickler's veto is the estate actor's Act of stopping or preventing someone speech. Just to prevent or stop disruption to public order, that constitutes a content based restriction on speech, subject to scri scrutiny. 90 "Brett Bacon" (1878646016) 00:30:12.779 --> 00:30:33.509 And a lot of you probably remember from law school and as you practiced probably strict scrutiny means that a restriction on speech must be narrowly tailored to be the least restricted means available to serve a compelling government interest. 91 "Brett Bacon" (1878646016) 00:30:33.509 --> 00:30:53.509 So, there's a case out of the seven circuit, called Bible Believers versus Wayne County. And this case concerned the Bible believers who were an evangelical Christian group, who decided to have a protest in the middle. 92 "Brett Bacon" (1878646016) 00:30:53.509 --> 00:31:14.209 Of the Arab American Festival in Dearbore in Michigan. If you know anything about Deerport in Michigan, it's one of the largest Arab American Muslim communities in the country. So what did the Bible believers do here? So they, they had a bunch of signs that were blatantly islamba phobic. 93 "Brett Bacon" (1878646016) 00:31:14.209 --> 00:31:36.659 I believe they had some pigs blood with them, and they just decided to go to this festival and just walk around with these signs. And for understandable reasons, the crowd got upset. And there were a few instances where the crowd surrounded them. They threw bottles and rocks at them. 94 "Brett Bacon" (1878646016) 00:31:36.659 --> 00:31:56.659 And, then, in reaction to that, the the local authorities came in and said, and said to the Bible believers, you're causing disruption to public order. We need you to step out. You can do this outside, but you can't do it in the. 95 "Brett Bacon" (1878646016) 00:31:56.659 --> 00:32:21.269 We have a duty here to preserve public order. And eventually the the the county law enforcement officials say, if you don't leave, we will arrest you for disorderly conduct. So, they eventually, the Bible Believers Bible believers leave and they bring this 1st retaliation claim. 96 "Brett Bacon" (1878646016) 00:32:21.269 --> 00:32:40.499 Under 1983. And this is what the 7th circuit said, this is an unbox decision. It said that the, the law enforcement officials act of telling the, the Bible believers to leave the. 97 "Brett Bacon" (1878646016) 00:32:40.499 --> 00:32:55.739 The the festival was, a content based restriction on speech. Now you can have content based restrictions on speech if it meet, if it's narrowly tailored to be the least restrictive. 98 "Brett Bacon" (1878646016) 00:32:55.739 --> 00:33:15.739 Means available to serve a compelling government interest. And what's the government interest that play in this, at this scenario? Well, it's keeping public order. That's one of the basic duties of law enforcement and that's the reason one of the reasons for their very existence to preserve that public order. So there there'd be NO argument that that there's NO. 99 "Brett Bacon" (1878646016) 00:33:15.739 --> 00:33:33.959 Compelling interest to preserve public order. But what the seven circuits said was important that was important that stopping the speech was not the most the most narrowly terrible or tailored action to be the least restricted means available. 100 "Brett Bacon" (1878646016) 00:33:33.959 --> 00:33:52.889 And the court pointed out that it gave a bunch of examples what could be less restrictive as compared to just telling them to, get out and just not remove your themselves from the crowd. It could have protected the speaker. 101 "Brett Bacon" (1878646016) 00:33:52.889 --> 00:34:09.629 I could have controlled the crowd, it could have, told people to still have throwing bottles, rocks, it just could have done something more to protect the speakers, and what the courts will say is that if you have these competing interests of reserving public order. 102 "Brett Bacon" (1878646016) 00:34:09.629 --> 00:34:26.219 In preserving someone's 1st amendment rights, the 1st amendment rights are are gonna be of much more importance than preserving public order. And the duty there is for law enforcement to protect the speaker, not expel the speaker just to preserve public order. 103 "Brett Bacon" (1878646016) 00:34:26.219 --> 00:34:43.979 So that's a heckle hospito, and that comes into play here, just because what we see from these public, these coordinated campaigns online to get people fired is essentially just the crowd rising up. 104 "Brett Bacon" (1878646016) 00:34:43.979 --> 00:34:59.129 Been saying that employee must do something because we don't like it. And and this will play out in this case called Hookfee rave. So this is a case from the District of South Dakota. This. 105 "Brett Bacon" (1878646016) 00:34:59.129 --> 00:35:19.129 Was the 1st published opinion of a case where an employee was, he was put on disciplinary leave for making a post critical of Charlie Kirk after his assassination. So, University of South Dakota placed fressor rooke on leave. He was an arm. 106 "Brett Bacon" (1878646016) 00:35:19.129 --> 00:35:40.489 History professor, and shortly thereafter, Professor Hook brought a 1st amendment retaliation claim, and he brought a TRO to seek re reinstatement to his position. So here's the post right here, this is the 1st post. I'll leave you to read it there, but essentially saying like, oh, I I don't like Charlie Kirk I. 107 "Brett Bacon" (1878646016) 00:35:40.489 --> 00:36:02.839 I don't care his dad, why, where was this concern when it came to the hortman's? Things like that. So he makes this post, people are critical of it, including the the governor of South Dakota, was pressuring the university to do some, to fire this professor because of this post. The. 108 "Brett Bacon" (1878646016) 00:36:02.839 --> 00:36:28.799 The trustees went to him saying, can you delete this? He did, and then he made this second post was essentially, sorry, not sorry post, and if you read it, you can understand why people who were upset by the 1st post, were also upset by 2nd post. So, the professors, as I said, the professor saw Attero and the court granted it. Well, why? I mean. 109 "Brett Bacon" (1878646016) 00:36:28.799 --> 00:36:47.399 So the the court said here they're like, yeah, there were hundreds of calls and messages wanting calling for this professor to be fired. And this is this consumed a lot of university resources. They had to, take the calls. They had to moderate. 110 "Brett Bacon" (1878646016) 00:36:47.399 --> 00:37:02.699 The website because as what usually happens in these credit reactions, there were credible threats of violence towards professor and others. So that requires some moderation and there were a bunch of emails too, so it it there was. 111 "Brett Bacon" (1878646016) 00:37:02.699 --> 00:37:19.679 A disruption to the daily, the normal da daily activities of the university. But as with we saw at mountain, there was NO evidence of disruption when it came to professors hooks, duties as in our history professor. 112 "Brett Bacon" (1878646016) 00:37:19.679 --> 00:37:39.679 Yeah, there, there was this big public online reaction, but there's NO, there's NO action, there's NO protests on the university campus. Professor Hook was able to teach normally as he did, and there's just NO simply NO evidence that his comments led to any workplace disruption. And. 113 "Brett Bacon" (1878646016) 00:37:39.679 --> 00:38:05.489 When it came to the TRO stage of the litigation, and I mean most of you know that getting a TRO is very difficult, it said that the professor did enough here to show that there was reasonable likelihood of success on his 1st amendment retaliation claim. So eventually mr. Professor Hook was reinstated and yeah and yeah. 114 "Brett Bacon" (1878646016) 00:38:05.489 --> 00:38:22.170 So, you, so if I enter the presentation there, you can come to the conclusion that, you could say like, well, ok, so there's a big public reaction, whatever, if there's NO evidence of actual disruption, that there's NO. 115 "Brett Bacon" (1878646016) 00:38:22.170 --> 00:38:37.650 Then there'll be a 1st amount of violation to discipline someone just because there's a big public reaction to a speech. But that's not the case, and we see that from this case Finiko versus city of Philadelphia. So in that case. 116 "Brett Bacon" (1878646016) 00:38:37.650 --> 00:38:57.270 There were, about 20 current and former city police officers were fired or disciplined after news uncovered 500 plus social media posts. These were made to various. 117 "Brett Bacon" (1878646016) 00:38:57.270 --> 00:39:13.380 Facebook groups of of tenured police officers, other groups, and even just on their, on their Facebook wall if they called a wall anymore. 118 "Brett Bacon" (1878646016) 00:39:13.380 --> 00:39:33.330 That nearest these posts there were explicitly racist islamothobic, sexist, homophobic transphobic, zenophobic or coaled for our condowned extra legal violence against protesters current spect anothers. Here's you can see the post on the right hand side. 119 "Brett Bacon" (1878646016) 00:39:33.330 --> 00:39:50.040 Definitely the least defensive posts that I could find. The, the eastern District of Pennsylvania court laid out, I think it's like a hundred plus posts that have listed in its, it is published order. 120 "Brett Bacon" (1878646016) 00:39:50.040 --> 00:40:10.040 Pretty upsetting post there, but if you want to take a look at it, look at the the citations and the materials, but that's all to say people were upset about these posts. So this, this new story came out and was published in the Philadephine choir buzzfeed, and a couple other large. 121 "Brett Bacon" (1878646016) 00:40:10.040 --> 00:40:30.270 Media publications. So this new story breaks out and then a bunch of protesters appear in front of the Philadelphia police department, this city hall, and, local leaders of the Islamic, Hispanic and black communities, voicer displeasure. 122 "Brett Bacon" (1878646016) 00:40:30.270 --> 00:40:50.160 They meet with the mayor, they meet with the city council, and they say, if, if the police have these feelings towards our community, how can we trust them to police our community fairly? And and the court talks, and this is the court talks a lot about this in its summary judgment order, that there's just all this evidence. 123 "Brett Bacon" (1878646016) 00:40:50.160 --> 00:41:05.490 Of how this undermined public trust in the police department. But, there was very little discussion and apparently very little evidence about how these posts actually affected the operations within the Philly police department. 124 "Brett Bacon" (1878646016) 00:41:05.490 --> 00:41:25.290 At most there was, the, the police department hosted something called like a listening session where it said, hey, if you're upset about this, let's talk about it. But that's about it. So if you're following the logic of mountain, of hook, you could reasonably conclude. 125 "Brett Bacon" (1878646016) 00:41:25.290 --> 00:41:45.290 That's probably not enough. We don't have a lot of evidence of internal disruption. That should, that should be protected speech. But the the eastern District of Pennsylvania grants summary judgment for the city. Well, why? Again, very little discussion about disruption within the police department as a result of these social media posts. 126 "Brett Bacon" (1878646016) 00:41:45.290 --> 00:42:05.730 But, the court said that the the evidence of the gigantic public backlash, in reaction to these posts, and particularly from who complained about them, local leaders of several minority communities within the city of Philadelphia was sufficient evidence of disruption. 127 "Brett Bacon" (1878646016) 00:42:05.730 --> 00:42:25.410 Yeah, several leaders came out, expressed concern about the posts, and if you know anything about Philadelphia has a very large black community, Islamic community, and many other. It's a very diverse city. So the court reasoned that if. 128 "Brett Bacon" (1878646016) 00:42:25.410 --> 00:42:45.030 If this is how the police evidently feel about these communities, that's gonna undermine my public trust between the police and those communities. There are other effects too. There were several police who officers who was, who were still on the police force when this news broke. They were not fired, they were just disciplined. 129 "Brett Bacon" (1878646016) 00:42:45.030 --> 00:43:05.030 And, what happened was these posts were coming up in any criminal trials in which those police officers were involved. So their their credibility was being impeached when it came especially when it came to those police officers, involved in the arrest of. 130 "Brett Bacon" (1878646016) 00:43:05.030 --> 00:43:26.370 Defendant who was a person of color, and who was part of the community that this police officer evidently hated because of their posts. So that had real very real impact on the operations of the the city police department, and its ability to effectively prosecute. 131 "Brett Bacon" (1878646016) 00:43:26.370 --> 00:43:42.870 Criminal defendants. And, just generally, there it just suggested that the police, there's a large contingent within the police force that could not police communities of color fairly and. 132 "Brett Bacon" (1878646016) 00:43:42.870 --> 00:43:58.050 That and that was a lot, and that was a big part of what the police do. They have to rely in this community trust to do their jobs effectively. Quick aside City of Philadelphia mentioned, I'm an Eagles fan, a Philadelphia fan. I do, I am obligated. 133 "Brett Bacon" (1878646016) 00:43:58.050 --> 00:44:13.590 Say gobbirds. Go birds. Anyway, ok, so, so now you have the, you have this, on the one hand you have Meltan, you have hook, and on the other hand you have Finiko. 134 "Brett Bacon" (1878646016) 00:44:13.590 --> 00:44:33.590 So what's the balance here? Finica, they said, ok, a large public reaction, that's given what the police do, that's enough to say big public reaction is enough to say that's sufficient evidence disruption, that's not protected speech. But then yeah mountain saying like, ok, yeah, big. 135 "Brett Bacon" (1878646016) 00:44:33.590 --> 00:44:51.810 Reaction to what this firefighter said, but the the public reaction's not enough just to push it over the line to say that it's it's not protected speech. The mellon's speech was protected. The Phoenico. 136 "Brett Bacon" (1878646016) 00:44:51.810 --> 00:45:08.340 Plain Fs were not. So what's the balance here? I think 2nd circuit does a great job at explaining this. This is from the case of Lucurdo versus Julie Ani. In facts of this case are, there were was a. 137 "Brett Bacon" (1878646016) 00:45:08.340 --> 00:45:26.190 There was a prade, I think, I think somewhere, I forget the name, anyway, there, there was a trade somewhere. I lived in Brooklyn I should know this, but I forgo I forget the name of the neighborhood. But, but anyway, so there's this racist, there's this. 138 "Brett Bacon" (1878646016) 00:45:26.190 --> 00:45:42.600 Grade, the police had civil racist floats and there's big public reaction. And as similar to Finico, 2nd circuit said, the, the police department relies on public trust if you're showing. 139 "Brett Bacon" (1878646016) 00:45:42.600 --> 00:46:00.960 If the police department is showing these floats that, are seemingly attacking or showing a bias against communities of color, how can we trust them to police us fairly? And the secretary could put it in a good way of showing this balance between. 140 "Brett Bacon" (1878646016) 00:46:00.960 --> 00:46:20.960 Or having showing the effect of public trust on this analysis of whether a big public reaction can, can be a sufficient evidence of disruption. So it said where government employees job quints essentially involves public truck contact, the government may take into account the public's perception of that. 141 "Brett Bacon" (1878646016) 00:46:20.960 --> 00:46:42.950 Employees expressive acts and determining whether those acts are disruptive to the government's operations. Put a finer point on it. Let's compare Finico and mountain. So Finiko planoffs, they were police officers. What do police officers do? They do, they have to investigate crime, they go into the community, they. 142 "Brett Bacon" (1878646016) 00:46:42.950 --> 00:47:01.860 Collect reports, they get eye witness testimony, they work with community leaders to effectively police a community and their credibility is heavily important to their job. 143 "Brett Bacon" (1878646016) 00:47:01.860 --> 00:47:21.860 And all this requires a degree of public trust. If the public does not trust a police department because of their actions, they're not gonna be able to get the information they need from the community. They're not able to, they're not gonna have a good relationship with community leaders to work with. 144 "Brett Bacon" (1878646016) 00:47:21.860 --> 00:47:42.810 To effectively police that area. And and as we see with finiko, it could even affect their credibility on the stand. Particularly if the the officer shows some bias against community's color, if the defense is able to bring that social media posts to question that officer's credibility, I could. 145 "Brett Bacon" (1878646016) 00:47:42.810 --> 00:47:58.920 The evidence of bias against the defendant and ultimately put put in the jury's head that like, is this, is this officer biased or do they do their job effectively? And is he just putting this off on a personal color because they don't like the way he looks? 146 "Brett Bacon" (1878646016) 00:47:58.920 --> 00:48:14.910 So, public trust integral to police department's work, but mountain, we're just dealing with firefighters. Firefighters obviously do important work, but they don't really need public trust to do their jobs effectively. 147 "Brett Bacon" (1878646016) 00:48:14.910 --> 00:48:31.620 What's their main function? They fight fires. They, the process is someone's house is on fire, they call 911 and the the fire department shows up and they spread the house. Hopefully the fire, is extinguished. There's NO. 148 "Brett Bacon" (1878646016) 00:48:31.620 --> 00:48:51.620 There's NO degree of public trust required to do their jobs there, just kind of show up and fight fires. There's NO need for the fire department to have a relationship with the community or get evidence from the community. There there might be when it comes to like Arsen investigations, but that's pretty limited. 149 "Brett Bacon" (1878646016) 00:48:51.620 --> 00:49:14.510 And really I think this is the difference between Mountain and fine Eco it's just that the core function of the government employee's job for police definitely requires public trust firefighters, not so much, so, a public backlash is gonna matter more for employees that do reline that public trust when we compared to mountain. 150 "Brett Bacon" (1878646016) 00:49:14.510 --> 00:49:36.870 So with all that, I'll just summarize what could be some helpful evidence of disruption if you end up defending 1st retaliation claim here. So overall you want to focus on evidence of disruption internally, and what does that look like? Could be complaints about the post from other employees. 151 "Brett Bacon" (1878646016) 00:49:36.870 --> 00:49:52.170 The some some evidence to show that this post affected the job duties of this employee possibly others. Again, look at as performed, don't just rely on the job description, but you do have to consider if this. 152 "Brett Bacon" (1878646016) 00:49:52.170 --> 00:50:09.210 If this government employee's job realized public trust, say they're a police officer or even a teacher, if that requires some public contact, you want some evidence to show that this what they posted online is gonna somehow. 153 "Brett Bacon" (1878646016) 00:50:09.210 --> 00:50:26.190 Affect their, their, the, their public trust with the community, which will make their ability to do their jobs less effective. So with that, we'll go to pickering balancing. As I mentioned towards the top. 154 "Brett Bacon" (1878646016) 00:50:26.190 --> 00:50:46.190 The in circuit is unique and requiring some evidentiary burden of disruption before getting to pick ring balancing, and I I haven't found a case where, where, where a government employer succeeds on step two but fails on the pickering balancing. And that's really just because. 155 "Brett Bacon" (1878646016) 00:50:46.190 --> 00:51:09.590 Is a lot of the balancing factors do relate to the disruption analysis, and here are three of the six factors that are related to determining whether there's sufficient evidence of disruption. So there's the need for harmony in the workplace, whether the government's responsibilities require close working relationship. 156 "Brett Bacon" (1878646016) 00:51:09.590 --> 00:51:32.460 When the speech in question has caused or could cause relationship to deteriorate and and whether the speech had issue impeded the employee's abilities to reform their duties. And a lot of the evidence here, again, what I mentioned about focusing on getting that evidence of disruption is gonna be the same if you're on the pickering balancing factors and. 157 "Brett Bacon" (1878646016) 00:51:32.460 --> 00:51:51.030 So, yeah, again, like it's gonna be information about the functions of the office, testimony about how trust is essential to the mission and function if that's applicable, you want information about how the posts caused the office to expand extra time dedicated to addressing the posts and the reaction to it. 158 "Brett Bacon" (1878646016) 00:51:51.030 --> 00:52:06.480 And you want to collect testimony from co workers stating that this post caused attention in the office and a loss of confidence in the employee who made the post. That said, there are a couple of factors that are not. 159 "Brett Bacon" (1878646016) 00:52:06.480 --> 00:52:23.730 Duplicative of this disruption analysis in the eight circuit, but they are kind of duplicative of other factors of the gar city and pick ring balancing, the garciting and pick rain factors. So one of those the the balancing factors is time in place and manner. 160 "Brett Bacon" (1878646016) 00:52:23.730 --> 00:52:40.530 Here the court says, ask whether the employee identified themselves as an employee on their social media account. But again, so this is kind of similar to the analysis of determining whether the employee spoke as a. 161 "Brett Bacon" (1878646016) 00:52:40.530 --> 00:52:58.470 Citizen, on a matter of public concern, so here, and as mentioned, these online campaigns are getting more savvy at connecting two separate social media accounts, namely LinkedIn and like Facebook or Twitter. 162 "Brett Bacon" (1878646016) 00:52:58.470 --> 00:53:14.430 And putting them together as evidence to so show that this person works at this employer. Again, there I haven't seen any litigation of the impact of, of how, of compared to if someone identifies themselves. 163 "Brett Bacon" (1878646016) 00:53:14.430 --> 00:53:30.540 On on the, on the social media site in which they make the post versus their various social media imprint. It's unclear, there's NO real case law saying whether this is determinative of whether. 164 "Brett Bacon" (1878646016) 00:53:30.540 --> 00:53:50.400 You need to have, your job posting on the account once you make the post or, is it enough to show that you identified yourself as an employee somewhere out there in the internet ether. Is that enough to show that you're identifying yourselves as an employee? 165 "Brett Bacon" (1878646016) 00:53:50.400 --> 00:54:09.780 Somewhere. Again, we haven't seen a lot of that. It's a little hard to explain right now, but, but you can't I hopefully you get the gist of like it's saying like if if they made it on LinkedIn, that'd be one thing, but if they make it on like a, like a Twitter Burner account, that might be a different thing. 166 "Brett Bacon" (1878646016) 00:54:09.780 --> 00:54:29.780 Another pickering balancing factor is, looking at the context in which the dispute arose. Here the court looks at if the speech arose from a personal dispute with the government employer, is entitled to less protection than it arose from the employees purely academic. 167 "Brett Bacon" (1878646016) 00:54:29.780 --> 00:54:48.570 Make interest outside of work. This is pretty duplicative of, the, the speaking on a matter of public concern. So there i've met as I mentioned, inter office dispu speech about intero office disputes. 168 "Brett Bacon" (1878646016) 00:54:48.570 --> 00:55:08.570 Are typically not considered to be matters of public concern, so an employee talking about like their dispute with their coworker, that's not gonna be, that's gonna be evidence that they're not speaking on a matter of public concern, and it's also gonna be evidence. 169 "Brett Bacon" (1878646016) 00:55:08.570 --> 00:55:29.520 Wayne against them when the court looks at this factor of looking at the context in which the dispute arose. Degree of public interest in the speech, another pickering factor, the court here looks at the speech and considers whether it should receive heightened protection because it has some quality perspective that gives it a special value. 170 "Brett Bacon" (1878646016) 00:55:29.520 --> 00:55:47.370 To the public. The the question the court really looks at here is we're looking at the, it says, ok, let's look at the speech, is it just adding to the countless views of others? If yes, it wasn't favor for the employer. We've all been on the internet for a while now. We've seen these posts. 171 "Brett Bacon" (1878646016) 00:55:47.370 --> 00:56:03.870 On Facebook, on Twitter, almost always, they're just kind of keeping on the pile of everyone else talking about this top topic, so it's probably, this factor is almost always a way in favor of the employer. With that, let's get to a hypothetical. 172 "Brett Bacon" (1878646016) 00:56:03.870 --> 00:56:23.870 So let's apply all this knowledge. I'm not gonna do a poll, just think to yourself, and I'll tell you the answer. So here's hypothetical one. So at Johnny appleside, an employee of the town of Apple makes the following post to his private Facebook account while he's at home after work hours. 173 "Brett Bacon" (1878646016) 00:56:23.870 --> 00:56:43.740 The mayor of Apple is a total bozo. I dislike him. No one comments on the post. No one calls city hold to complain, but the mayor dislikes the post and fire mr. Apple Seed. Question here, is this predicted speech? Did the mayor violate. 174 "Brett Bacon" (1878646016) 00:56:43.740 --> 00:57:02.910 The the employee's 1st member rights, and does the employee have enough here to show that this is protected speech necessary to have a retaliation claim? I I would say this is probably gonna be protected speech. 175 "Brett Bacon" (1878646016) 00:57:02.910 --> 00:57:22.910 It's just commenting to commenting about the mayor, how he dislikes them. There's not a, there's not evidence of public backlash, in this hypothetical, there's not a lot of disruption of internal disruption either, but it could matter, maybe it could come out differently if I Johnny. 176 "Brett Bacon" (1878646016) 00:57:22.910 --> 00:57:42.600 Works from there personally personal assistant or there's a lot a lot of this evidence that somehow this comment did create disruption with the office. But in most circumstances I I would think that this would probably protected speech. 177 "Brett Bacon" (1878646016) 00:57:42.600 --> 00:58:02.600 I have phone number two. Johnny Applestead, a teacher at Apple High School makes the following post to his private Facebook account. The parents of my students are total morons. One kid's parents mr. Shamrock Shake was at that rally to help flood victims. What it waste time those people. 178 "Brett Bacon" (1878646016) 00:58:02.600 --> 00:58:20.820 Put down to live in a flood zone. Most of minister applesit students lost their homes in the flood, a wave of calls comes into the school from their parents demanding that mr. Appleseep be fired, setting a lack of trust in him to teach their children. So let's assume that the school district fires. 179 "Brett Bacon" (1878646016) 00:58:20.820 --> 00:58:36.690 Mr. Applesid here, the question is, did is mr. Applesid speech protected in these circumstances? Well, he could say that speaking, he's speaking as a citizen on a manner public concern. 180 "Brett Bacon" (1878646016) 00:58:36.690 --> 00:58:52.170 Talk the flood, maybe about city planning generally, why would you put homes in a flood zone, the class, maybe some class issues, but. 181 "Brett Bacon" (1878646016) 00:58:52.170 --> 00:59:12.170 Just as it is with police officers, teachers indisputably rely on some degree of public trust to do their jobs effectively. And there's a couple of cases in the materials that have similar fact patterns, and the court said, the speecher's not protected under girlsety. 182 "Brett Bacon" (1878646016) 00:59:12.170 --> 00:59:29.160 The pick ring, just because the speech undermines the the trust between the teacher and the parents and undermines that teacher's ability to do their job effectively. So, in this case it would almost certainly be not protected speech. 183 "Brett Bacon" (1878646016) 00:59:29.160 --> 00:59:45.270 Hypothetical number three. Merrick mccheese, mayor of the Town of Apple is assassinated by grimmess. Shortly afternoons breaks, joining apple Seed community liaison employed by the town of apple, makes this post. 184 "Brett Bacon" (1878646016) 00:59:45.270 --> 01:00:00.570 I'm glad that Bozo mayor mccheese is dead. I really dislike them. So thousands of calls flood in demanding that mr. Apple C be fired. Is this speech protected under the 1st amendment? 185 "Brett Bacon" (1878646016) 01:00:00.570 --> 01:00:17.640 Well, you could go straight to your City and pickering, which you probably should in this case, but you can also maybe have a thought in your mind like oh well is this a true threat? And he's act of violence happened. 186 "Brett Bacon" (1878646016) 01:00:17.640 --> 01:00:36.720 Johnny Applesift is apparently happy that this act of violence happened. Maybe you could say that by liking that this act of violence happened is a statement of how, violence should happen to people we disagree with. 187 "Brett Bacon" (1878646016) 01:00:36.720 --> 01:00:56.040 Hey obviously you see this in the way that Charlie Kirk a lot of people is including mr. Hook. Professor Hook said that they're glad Charlie Kirk was dead. Some people thought that it was condoning violence and amounted to a truth true thread of violence, but it's not gonna be just because they're not calling for some illegal action to take. 188 "Brett Bacon" (1878646016) 01:00:56.040 --> 01:01:11.400 Place certainly they're not calling for any violence to take place just from the the boards of the statement itself. It it's it's not gonna be a true threat. Is it gonna be protected under the circumstances in our city and piqueen? 189 "Brett Bacon" (1878646016) 01:01:11.400 --> 01:01:30.510 Depends. I would say the fact that Johnny is a community liaison, it's probably affect his credibility as because he works in the public, this is probably enough to say it's not protected under the circumstances. So quickly, let's say that. 190 "Brett Bacon" (1878646016) 01:01:30.510 --> 01:01:47.190 You, one day you're pulled into a meeting, your employer says, we need your help, we're getting calls, emails, Facebook messages, wanting this employee to be fired, it's gonna be a very hectic situation, very stressful. So what do you do? 191 "Brett Bacon" (1878646016) 01:01:47.190 --> 01:02:06.810 Well, 1st you want to calm down, take a step back. A lot of people are gonna be panicking, but you don't want to act right off the cuff, you wanna just have a clear head. And obviously a lot of these cases are gonna involve some sort of speech that. 192 "Brett Bacon" (1878646016) 01:02:06.810 --> 01:02:26.810 Would would be political. So, it let's say that the the employee made some sort of speech that you find more offensive, offensive to your political beliefs, your 1st instinct maybe to act on. 193 "Brett Bacon" (1878646016) 01:02:26.810 --> 01:02:42.510 I just think that like, oh, I disagree with this and therefore we should discipline this play. No, you have to like, again, you have to take a step back and try to put those political beliefs aside and want to object this, look at this more objectively. 194 "Brett Bacon" (1878646016) 01:02:42.510 --> 01:02:59.340 Of course, if you want the post that you want to look at the post and see if it gonna gonna put anyone in danger, and you also want to look at the reaction cause often a lot of these comments in the campaigns are gonna have some threat of violence. You want to. 195 "Brett Bacon" (1878646016) 01:02:59.340 --> 01:03:15.900 Make sure your employees are safe, and take action. Again, if the post is a true threat, you want to take action immediately, but even if it's not a true threat, you want to take security measures if any, if the post or any reaction to it. 196 "Brett Bacon" (1878646016) 01:03:15.900 --> 01:03:35.900 Raises some sort of threat to security. There'll probably be some push to act immediately to try to appease the crowd or they just wanna get this, want to get this over with. Now you you don't, you want to push back, you will say this requires some. 197 "Brett Bacon" (1878646016) 01:03:35.900 --> 01:03:55.380 Fact finding before I make a recommendation, so, let's just pause and practically a lot of these campaigns do kind of last day or two. So, you won't be hand, likely you won't be handling this for weeks on end. It'll be. 198 "Brett Bacon" (1878646016) 01:03:55.380 --> 01:04:12.450 An initial wave and then we'll just kind of discipate after that. But, if your employer does decide or is leaning towards disciplined this employee, you wanna start documenting evidence of disruption, that includes the logs, calls, emails, social media posts from. 199 "Brett Bacon" (1878646016) 01:04:12.450 --> 01:04:32.450 The people reacting against it. You want to look at how the post affected internal operations, you wanna start those initial internal investigation procedures, and communicate to employees about EAP if they're upset about the post. If there's some evidence that employees sorted out, that could potentially be evidence. 200 "Brett Bacon" (1878646016) 01:04:32.450 --> 01:04:49.920 To support that disruption analysis. Quickly do considerations, so when you're looking, when doing this analysis undergo setting pickering, you wanna determine whether post is real and whether the employee actually posted it age of AI its easy to deductor these things, who reported the post? 201 "Brett Bacon" (1878646016) 01:04:49.920 --> 01:05:08.190 Is it a bunch of people? Is it that one guy who emails your county once a week complaining about people who should be fired? That's gonna make a difference. How bad is the backlash? Is it just a couple people in the community or is it thousands of calls? When and where did the employee make the post? Was it on the job? Was it off the job? 202 "Brett Bacon" (1878646016) 01:05:08.190 --> 01:05:28.190 Does the post address a matter of public concern? Probably does. Where does the employee work, it's gonna matter, there's big difference between if they're a police officer versus a clerk who doesn't have any interaction with the community, that's gonna matter. Where the employee's actual work duties, does the employee's job involve contact to the public? 203 "Brett Bacon" (1878646016) 01:05:28.190 --> 01:05:48.360 Is it reasonably likely that the cost that the post will cost of internal stripe, is it already happening? And is it reasonably likely that this post will erode public trust? One thing I want to mention before we end is the thing that does not matter is whether it is the privacy settings of the the the employee's social media account. 204 "Brett Bacon" (1878646016) 01:05:48.360 --> 01:06:06.780 It doesn't matter if the employee uses the most restrictive privacy settings on the account, like let's say it's just, it can even just be a text message between friends. If somehow, a screenshot, of that gets posted and it's put on the internet, that's enough. It doesn't matter the intent of how. 205 "Brett Bacon" (1878646016) 01:06:06.780 --> 01:06:26.780 Doesn't matter how private the person wants to make it. If it's in on the internet, it's gonna be a speech, it's not gonna it's not gonna matter how restrict their settings are. One other thing finally just patching social media policies, it's just important to emphasize your employees that what they post on their private social media accounts can. 206 "Brett Bacon" (1878646016) 01:06:26.780 --> 01:06:44.790 Can affect their employment, whether it be through disciplinary action or potential firing. And you just want to emphasize that, again, if you, if you post something to your social media, NO matter how private it is, NO matter how private you intend it to be, it can affect your employment. 207 "Brett Bacon" (1878646016) 01:06:44.790 --> 01:07:04.790 So with that, let's get to questions. I have not been looking at the chat, so let me catch up on these questions. I'm already on, you're on mute. 208 "Brett Bacon" (1878646016) 01:07:04.790 --> 01:07:08.808 It's still in me. 209 "Marty Casserly " (2988247040) 01:07:08.808 --> 01:07:12.111 Our self identification. 210 "Brett Bacon" (1878646016) 01:07:12.111 --> 01:07:16.029 Sorry you cut out the 1st part of that. 211 "Marty Casserly " (2988247040) 01:07:16.029 --> 01:07:41.403 Yeah, that's ok. So the question is, are the levels of self identification linking yourself to your job that increases or decrease the likelihood of it being considered official or on behalf of? Just like listing an employer versus listing your title, your unit, your department, etc. 212 "Brett Bacon" (1878646016) 01:07:41.403 --> 01:07:51.240 I I think it could be persuasive evidence in determining whether this the person was speaking as of whether speaking as a citizen or not. 213 "Brett Bacon" (1878646016) 01:07:51.240 --> 01:08:06.690 I definitely if your if the employee posted it for something like let's say they, for whatever reason they have a Facebook account for their official office. If they make the post from that account, they're definitely. 214 "Brett Bacon" (1878646016) 01:08:06.690 --> 01:08:26.690 Not speaking as a matter, as a, as a citizen, but if they have a lot of indicators that they're working for, that employer and maybe they even have message in the post itself indicating that this is the the employer's position that could, that would weigh more heavily to find in. 215 "Brett Bacon" (1878646016) 01:08:26.690 --> 01:08:39.264 Note that the person was not speaking as a system, they were speaking their official capacity, but there's a lot of there's a lot of things to consider depending on what exactly is identified in the account and what's in the post itself. 216 "Marty Casserly " (2988247040) 01:08:39.264 --> 01:08:57.868 Sure. Another question is, Sorry to see here, to the most many public employees will have to show just cause for discharge before a labor, arbitrator civil service board, ALJ, et cetera. 217 "Brett Bacon" (1878646016) 01:08:57.868 --> 01:09:05.760 That that's, that's gonna be a matter of their agreement with the union. 218 "Brett Bacon" (1878646016) 01:09:05.760 --> 01:09:25.760 For 1st amount of retaliation claim, that I I don't think the union contract would necessarily forbid those claims to come into court. And in fact, a lot of courts say, you can't arbitrate your way arbitrate your constitutional rights away. There you'll have. 219 "Brett Bacon" (1878646016) 01:09:25.760 --> 01:09:41.727 You'll always have the opportunity in court to argue, a constituent claim. But in terms of procedure, what comes in form of discipline or firing because of the post, that's gonna be governed by the the bargaining agreement. 220 "Marty Casserly " (2988247040) 01:09:41.727 --> 01:09:58.663 One thing I should point out Brad, is I got a couple of messages from people asking if they could reach out to you with questions and perhaps we'll put it in the post email that we'll put if it's alright with you, putting you on the spot. 221 "Brett Bacon" (1878646016) 01:09:58.663 --> 01:10:01.413 I will put down. 222 "Marty Casserly " (2988247040) 01:10:01.413 --> 01:10:08.427 In your email address and if people have questions that they don't want to make public that they can reach out to you directly. 223 "Brett Bacon" (1878646016) 01:10:08.427 --> 01:10:14.349 Absolutely. And yeah, my my email is at the bottom of the handout, and yeah, marty, feel fre. 224 "Marty Casserly " (2988247040) 01:10:14.349 --> 01:10:51.310 To my email in the in the chat as well. Yes. So Brad did prepare two things. We had the slides plus he has a narrative handout that's very substitive, so somebody submitted a question to the host question for Brad. How should courts defendants address evidence possible widespread bias indifference in an office such that a racist, homophobic, et cetera post does not cause internal disruption for many, but still impact specific employees or efforts to fire new individuals. 225 "Brett Bacon" (1878646016) 01:10:51.310 --> 01:11:07.050 I I I see the text so the the question I just I need to read it ok widespreads the difference. So if you're talking about a 1st amendment retaliation claim. 226 "Brett Bacon" (1878646016) 01:11:07.050 --> 01:11:27.050 From an employee who is fired or disciplined from the post. And I think what I'm getting at it from maybe from the basis of your question is that, let's assume the post can be considered by bias or even racist, but maybe the O office itself has a widespread issue. 227 "Brett Bacon" (1878646016) 01:11:27.050 --> 01:11:51.380 That's reflected in that employee's post. And it well it depends on 1st it depends on what they do specifically for the government employer, and a good example of this is Finiko. There are the planets there were police officers and the fact that there were 20 plus officers who were disciplined or fired from these posts. 228 "Brett Bacon" (1878646016) 01:11:51.380 --> 01:12:08.400 As the people of the city of Philadelphia reasonably saw is like, this is just a reflection of systemic bias within the police department itself. If if the, if the possession itself requires some degree of public trust, yeah. 229 "Brett Bacon" (1878646016) 01:12:08.400 --> 01:12:28.400 It even though that there's, even though there's systemic issues within the department, which leads to the the department itself not reacting that much to whatever's posting maybe because they agree with it, that's gonna matter, but if it's some sort of post that does not require. 230 "Brett Bacon" (1878646016) 01:12:28.400 --> 01:12:48.720 That much public trust, maybe the the fact that there's widespread systemic bias may not matter as much. Really that the focus is on the disruption to the employee's ability to work in the office and the ability of the office itself to function properly. 231 "Marty Casserly " (2988247040) 01:12:50.468 --> 01:13:05.467 Okay, maybe we have time for one more question. If the employee is posting on social media, when they're supposed to be working, couldn't they potentially be disciplined or terminated regardless of the content of the post? 232 "Brett Bacon" (1878646016) 01:13:05.467 --> 01:13:11.460 Yeah, in that case, it's not a content based restriction. That's just a violation of. 233 "Brett Bacon" (1878646016) 01:13:11.460 --> 01:13:27.000 Of personnel rules. When we're talking about retaliation claims, we are, we're talking about content based restrictions. If if they're just violating the the the blanket rule of saying don't post on social media when you're working. 234 "Brett Bacon" (1878646016) 01:13:27.000 --> 01:13:42.509 Yeah, that's not a content based restriction, that's just it doesn't matter what they post, they're just violating the rules and that's not gonna have any, probably not gonna have any 1st issues. It could, but it's strong evidence that it would not be protected speech. 235 "Marty Casserly " (2988247040) 01:13:42.509 --> 01:14:08.031 Okay, one more last question, then I'll let you go. As to private or public posts, although you say that isn't relevant as to making a disruption, can that be considered if the disruption was significant enough? Seems like if fewer people practically saw the message, the less likely for a disruption potentially. 236 "Brett Bacon" (1878646016) 01:14:08.031 --> 01:14:28.460 So practically, how these things tend to work is that yes, the the employee maybe intended it to only go to a few people, but the office at large finds out about it, whether, someone screenshots it and shares it with their employee. 237 "Brett Bacon" (1878646016) 01:14:28.460 --> 01:14:46.860 Where or a coworker reports it to HR. So practically, it doesn't really matter for if it's whether it's public or private and the the the disruption analysis. And legally, it's. 238 "Brett Bacon" (1878646016) 01:14:46.860 --> 01:15:13.508 It's not probably gonna matter just because when you're looking at disruption, you're looking at you're look, you're looking at what the post caused. It's a cause and effect relationship. You're not looking at what the post intended to convey or whom it intended to be. The court's gonna look at disruption to the the workplace as a whole in reaction to the post. 239 "Marty Casserly " (2988247040) 01:15:13.508 --> 01:15:32.650 Alrighty, with that, I thank you Brett, for your very helpful, presentation. Again, he has a handout, which you can get on the link or we'll send out to you later this afternoon or tomorrow. With that, thank you Brett. Thank you everybody for joining us. Have a great rest of the day. 240 "Brett Bacon" (1878646016) 01:15:32.650 --> 01:15:37.216 All right, thank you everyone.