Federal Employees on Social Media Could Hurt Government Image

The complicated societal and political times that we now live in have resulted in an explosion of social media communications from government employees that can conflict with the mission and image of the employing agency.

The rise of “alt” or “rogue” government social media accounts has become a notable development. These unofficial accounts, purporting to share scientific data, policy critiques, and dissenting perspectives from within federal agencies, appeared during the first Trump administration and have become active again in the second.

Although many claimed to be operated by current or former agency employees, their true affiliations were never verified. They reflected broader tensions between agency messaging and individual expression during periods of political controversy.

What can a government agency do if its employees’ social media activity contradicts or embarrasses the agency? The answer can be complex.

In contrast to a private company, when the employer is the government, its conduct toward its employees must comply with the US Constitution. This includes the First Amendment free speech guarantee, which is a nuanced and evolving area of the law. Further, major differences exist between the remedies available to federal employees and employees of state or local agencies.

First Amendment

Under First Amendment principles, a public employee can’t be disciplined by their employer for speech:

• On matters of “public concern”
• Outside the scope of the employee’s “official duties”
• Which prevails in a balancing test of whether the employee’s First Amendment right is outweighed by injury the speech can cause to the government agency

An example of speech on a matter of public concern would be a police officer posting on social media that he may agree with the slogan “defund the police.” But a statement by the same officer that his colleagues have bad personalities would not be a matter of public concern.

Regarding the second element, “official duties,” for the employee’s speech to have protection, the employee must speak in their role as a private citizen, not in their official capacity.

For example, an employee who maintains the agency’s social media pages would be speaking pursuant to official duties. The same employee posting gossip about their colleagues on their own personal Facebook page would likely not be.

Whether “alt” account operators meet this standard would depend on whether their posts reflect their job responsibilities. Using disclaimers and pseudonyms helps show they’re speaking as private citizens, but it isn’t conclusive; courts will examine the content and context of the speech.

For the third element, if the balancing test weighs in favor of the employee or if the government can’t justify treating the employee differently than a private citizen, the speech will be protected. The balancing can be evaluated by determining the disruption or interference the speech causes to the agency’s operations.

The balancing test would likely permit discipline of a sheriff’s deputy for social media speech compromising an ongoing investigation. It could permit disciplining a police officer for biased statements on social media that have a sufficient effect on the agency’s operations or posts applauding improper use of force.

On the other hand, the balancing test would likely favor a public college administrator who expressed on Instagram how they voted in an election, even if colleagues at the college learned about the speech and found it irritating.

Importantly, courts developed the tests and standards above in cases brought by state and local government employees. Federal employees (like potentially the “alt” account operators described above) have similar First Amendment free speech rights but, as the US Supreme Court decided in 2022, lack the same ability to pursue money damages from their employer for retaliation.

Social Media Policies

Agencies should be proactive about regulating employees’ social media use. However, courts will invalidate overly broad restrictions on social media use imposed by government employers.

A public employer’s social media policy must avoid curtailing speech that is protected under constitutional or statutory law and provide standards that aren’t improperly vague or overbroad.

A good social media policy for a government agency could likely prohibit employees from:

• Disclosing confidential or proprietary information
• Representing inaccurately that the employee’s posts or comments are those of the agency or that the employee speaks on behalf of the agency
• Using social media in a way that could adversely affect the employee’s job performance
• Publishing or commenting on content that would constitute a violation of any of the agency’s policies applicable to employees (as long as the policy provisions themselves withstand constitutional scrutiny)
• Using social media sites or blogs for any unlawful purpose

Social media use by public employees can present difficult legal issues, and it’s often helpful to seek assistance from counsel in drafting a social media policy and evaluating potential violations.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Partner Mark Meyerhoff, Partner Paul D. Knothe and Senior Counsel David Urban with Liebert Cassidy Whitmore’s Los Angeles office represent public agency clients in all aspects of employment law.

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