Public Employees and the Use of Social Media

Are political posts shared on social medical by Ohio public employees protected speech under the law? In short, it is unclear. The answer ultimately depends on how the activity is categorized under the Ohio Administrative Code (“OAC”). OAC section 123:1-46-02 separates protected (subsection B) and prohibited (subsection C) political activities. Although government employees do not completely forfeit their First Amendment rights at work, their employers can impose restrictions that would be unconstitutional if applied to a private sector employee. Some examples are easy to understand; expressing opinions is okay whereas distributing political material is prohibited. Determining where social media fits into these rules is a bit more difficult. This area of law is fairly and almost non-existent. This may be a matter the general assembly could take up soon.

The Hatch Act regulates the political activities of federal employees but does not apply to state or city employees. Instead, state and municipal public employees are subject to the rules of their own State. Ohio law explicitly allows public employees to engage in certain types of political activity. For example, the law allows public employees to (1) make financial contributions, (2) attend political rallies, (3) express their opinions, both oral and written, (4) signing petitions or displaying campaign materials at their home, (5) wearing political badges or buttons; and (6) wearing political badges or buttons or displaying political stickers on personal vehicles.

Ohio law also clearly outlaws certain activities, such as soliciting votes or contributions, circulating official materials, running as a candidate for public office in a partisan election, and participating in a political caucus, political action committee, or serving as a witness or challenger for a party. Ohio law also prohibits public employees from campaigning by writing and from distribution written political material or making speeches on behalf of a candidate for political office. So where does a social media fit in either of these lists? On the one hand, a Twitter or Facebook posts seems like nothing more than a written or oral opinion. However, can it be considered “campaigning” and therefore prohibited under Ohio law?

In Fangman v. City of Cincinnati, 634 F.Supp.2d 872, 874–75 (S.D.Ohio 2008), two city employees sought a temporary restraining order against the City of Cincinnati to prevent it from enforcing its HR procedures against them. The employees wanted to donate money to, and distribute campaign literature for, certain federal, state and county candidates in the 2008 election. Both claimed that the distribution of literature described above would be done by them in their capacity as individual, private citizens and would not be pursued while on duty or at the workplace.

In the end, the Fangman Court sided with the City and upheld the HR policies. The Court indicated that plaintiff employees were known to the public to be City employees. Therefore, engaging in political activity outside of normal work hours may not be enough to prevent members of the public from confusing their actions with City endorsements. In upholding the restrictions, the Fangman Court held that workplace restrictions on the 1st Amendment rights of public employees must be directly related to the goal of protecting the efficiency and integrity of public service.

Although Ohio prohibits the distributing of political material by civil service employees, it is unclear whether social media posts are actively distributing material or merely the equivalence of a yard sign and expressing political opinions which both are permitted by the statute. In Fangman, the Plaintiffs sought to distribute actual campaign literature. Is a Facebook post from a personal account the digital equivalent of distributing political materials? There are strong arguments on both ends.

Unfortunately, there’s no clear blue line. The laws regarding social media are new and/or non-existent. Ohio’s law is also broadly written and could be construed to prohibit a number of digital or web-based actions. Social media isn’t going anywhere any time soon, so hopefully lawmakers take heed and create some clear rules regarding its use. In the meantime, it may be wise to scale back on posting political material on any social media forum.