The widespread adoption of social media and other methods of public communication on the world wide web may present uncertainty about an employee’s right to speak freely through these modern forums. In general, an employer may come across public content posted by its employees such as on Facebook and Twitter. When the speech places the employer in an unfavorable light, there are questions as to whether it is protected, and whether an employer may act upon the speech.

For example, in Mattingly v. Milligan, Dana Mattingly was an employee of the Saline County Circuit Clerk of Arkansas.[i][1] While attending lunch with co-workers at a restaurant, she made multiple postings to her Facebook wall using her mobile phone.[ii][2] The posts, which were displayed to 1,300 of Ms. Mattingly’s “friends,” expressed her sadness over learning that some of her co-workers were being involuntarily terminated from employment.[iii][3]

Thereafter, Dennis Milligan, the clerk, received 6 calls on his home telephone from unknown constituents who complained about the terminations upon learning of the information.[iv][4] As a result, the clerk fired Ms. Mattingly for the postings.[v][5] Ms. Mattingly sued Mr. Milligan for violation of her free speech rights.[vi][6] Upon ruling on the clerk’s motion for summary judgment, the court determined that the “Facebook posts were made primarily to further her private interest in receiving emotional support and affirmation; the fact remains that she did not make them as an employee but as a citizen.”[vii][7] As a result, the court held that the speech was protected and denied the clerk’s motion against the free speech claim. [viii][8]

We have limited guidance from the higher courts regarding this area. Notwithstanding, it does appear that the location of dissemination is an objective factor that is often dispositive. Specifically, the recent case law suggests that speech is more likely to be protected when it is made in a home or public location; as opposed to an employer’s premises. The speech is also more likely to be protected when it is published and accessed through personally-owned equipment. However, other factors traditionally applied by the courts still dictate when the protection of speech falters; such as “fighting words” or speech that constitutes obscenity.

[i][1]. 2011 WL 5184283, at *1 (E.D. Ark. 2011).

[ii][2]. Id. at *2.

[iii][3]. Id.

[iv][4]. Id.

[v][5]. Id.

[vi][6]. Id. at *1.

[vii][7]. Id. at *4.

[viii][8]. See id. at *8