Public employees don’t lose all of their First Amendment rights when they post on social media about political or social issues. That is a chief lesson of a recent federal district court decision in Florida, McCullars v. Maloy.
The controversy began when B. Stanley McCullars learned that Orange County/Osceola County State Attorney Aramis Ayala announced at a March 2017 press conference that her office would not seek the death penalty in any cases.
McCullars was the assistant financial director for the clerk and court and comptroller of Seminole County.
McCullars disagreed with that position and expressed his disagreement in colorful terms: “maybe she [Ayala] should get the death penalty” and “she should be tarred and feathered if not hung from a tree.”
Three days later, McCullars’ boss, Grant Maloy – the Seminole County Clerk of Court, told McCullars that the post presented a First Amendment issue and McCullars’ job was safe. However, the next day Maloy terminated McCullars.
McCullars sued in federal court, alleging a First Amendment violation. He contended that Maloy terminated him in retaliation for his protected speech on a matter of public concern. Maloy filed a motion to dismiss, contending that he was entitled to qualified immunity – a doctrine that protects government officials from liability for constitutional violations unless they violated clearly established law.
U.S. District Court Judge for the Middle District of Florida Paul G. Byron declined to dismiss to the lawsuit and declined to grant qualified immunity to Malloy. The judge noted the U.S. Supreme Court’s seminal public employee decision Pickering v. Board of Education (1968), in which the Court balanced a public employee’s right to engage in free speech on matter of public concern against a public employer’s right to an efficient governmental operation.
The judge also cited the U.S. Supreme Court’s decision in Rankin v. McPherson (1987), in which the high court ruled that a Texas constable violated the First Amendment rights of a clerical employee for her intemperate comment about President Ronald Reagan after she learned he had been shot.
“Here, the allegations of the Complaint do not reveal any government interest affected by the [social media post], but do reveal McCullars’ interest in speaking as a citizen on a matter of public concern,” Judge Byron wrote. “Accordingly, McCullars has met his burden of pleading that Maloy’s conduct was proscribed by clearly established law.”
The decision is only at the motion to dismiss phase and the ultimate result of the lawsuit may still be unclear. But, what is clear is that public employers should not engage in knee-jerk reactions any time a public employee posts something they don’t like on social media.