The U.S. Constitution says that “Congress shall make no law …abridging the freedom of speech”. While private, at-will employees may not have First Amendment free speech protection for their blogging activities relating to the place of work, public employees may have the benefit of some determined protection depending on the nature of their blogging activity. The fundamental difference between these types of employment comes from the presence of state action in the public employment environment. Although a government employee does not have the same protection from governmental speech violation as citizens do under the First Amendment, there are a few cases, which in Pickering v. Board of Education, has established a small amount of protection, especially when the public employee blogging is off-duty, on personal computers and the blog post does not concern work-related matters.
Many private, at-will employees erroneously believe that they have First Amendment speech protection for blogging. In addition, these employees do not automatically gain First Amendment protection as citizens once they leave work and blog about work-related matters. Blogging is a form of off-duty behavior that may harm the reputation of the company and in which an employer may discipline an employee.
Generally, to establish constitutional footing, the plaintiff must show that he or she had suffered an injury that was concrete, actual, or imminent. The injury has to be traceable to the challenged action of the defendant; and it is likely that the injury can be cured by a favorable decision.
Employers have become aware that it is vital to maintain tight control over their technology resources. Many employers have added a section on personal use of tel...
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...nterest in the speech, and the employee's relationship to that issue.
The fourth step requires application of the evidence established in Brewster v. Board of Education of the Lynnwood Unified School District (149 F.3d 971)(9th Cir. 1998). The plaintiff must prove by the preponderance of the evidence that engaging in the protected speech was a substantial or motivating factor for the adverse employment action the employee suffered. This step seems less important in the public employee blogging context because it is usually the employee’s expression, which gets them into hot water in the first place.
The fifth and final step of this complicated test requires the government to prove that it would have made the same decision even in the absence of the protected employee speech. If the public employer is successful in meeting this burden, there is no liability.