Social media, 1st amendment collide

Published On: Apr 16 2012 07:10:45 PM EDT   Updated On: Apr 16 2012 07:26:44 PM EDT

The constitutional right of free speech has its limits on social media when it comes to workplace consequences, even when postings are personal and done on personal time.

"The First Amendment restricts the discretion of government to take action censoring your speech. It does not restrict private employers," said Thomas Julin, a Miami-based attorney with Hunton & Williams who argues free speech cases at the Supreme Court level.

That distinction means the Miami Marlins could have fired manager Ozzie Guillen for his controversial comments about Fidel Castro last week. The organization chose suspension as his consequence.

But Miami-Dade Fire Department Captain Brian Beckmann, because his employer is county government, has more freedom in cyberspace ranting, and is legally protected from consequence unless he has violated a policy.

Beckmann's Facebook posting, in which he opines about welfare mothers, absent parents, and thugs relative to the Trayvon Martin murder case, has drawn both calls for his termination and messages of support from the community.

"Here we have this super controversial thing," said Julin. "Is that going to interfere with the ability to do his job or the Fire Department's ability to do its job?"

Therein lies some criteria for a public employer's decision about whether to mete out consequences. Legally, a government employer can take action if an employee's expression, even on personal time on personal social media accounts, if the message impedes job duties or performance, impairs relationships, or demeans the office or agency.

That's what the Fort Lauderdale police department considered when it suspended officer Luis Pagan in January for what the department called "raunchy tweets with porn stars", and "criticizing department brass."