Thursday, December 18, 2014

Approved Speech: Tennessee Town Bans Negative Remarks and Criticism on Social Media

by Nomad

Yesterday we reported how one Russian governor decided that the best way of handling the national economic crisis was by banned the use of the word "crisis." 
Such a backward idea, right?

Well, Americans shouldn't laugh too hard at those crazy Ruskies. Bloomberg recently reported that a similar effort in Tennessee to silence discussion that local government approves of. 

No Expectation of Privacy Whatsoever
Earlier this month, the town of South Pittsburg, Tennessee, near Chattanooga, passed a resolution that prohibits anybody professionally connected to South Pittsburg, from “publicly discuss[ing] information about other employees and/or volunteers not approved for public communication” on social media. This includes employees, volunteers, and contractors. 

The resolution also wags a finger against posting anything on a personal Facebook page or on Twitter that anybody might consider either defamatory or libelous. The policy states that citizens "should have no expectation of privacy whatsoever."

The Chatanooga Times Free Press supports the Bloomberg piece:
It applies to all city elected representatives, appointed board members, employees, volunteers, vendors, contractors and anyone associated with the town in an official capacity who uses social networks. The policy says those persons can't post anything negative about the city, its employees or other associates.
The officials said that the tough policy was necessary because over the past year, their work has been "hampered by criticism and lies on social media."
Mayor Jane Dawkins defended the action, saying that this was "not a new concept." 
Nobody is arguing that. The question is whether it is legal or wise.

The policy, Dawkins explained, was aimed at preventing people from posting employees’ salary information or police officers’ schedules on Facebook. She implied that posting police schedules could endanger officers' families. Bloomberg noted that Dawkins' excuse doesn't hold much water since "it’s unclear if officers’ schedules have ever been posted online."

As soon as the policy received attention, the mayor was ready to back off. She pointed out that although she voted for the adoption of the policy, it was not commissioned by her. Actually the city commission approved it 4-1.
This bright idea belonged to Commissioner Jeff Powers. Powers said in his own defense:
"It seems like every few meetings we're having to address something that's been on Facebook and created negative publicity,"
Talk about creating negative publicity. 

Industry Standards
Commissioner Powers explained that according to the new policy, every city employee will have to sign an acknowledgement of the policy, and those who violate it can be reprimanded.
He also wanted to assure the public that the city had nothing against tweets or Facebook postings per se. Talking about your puppies and the weather and posting pictures of your grandchildren's drawing, no problem. Nobody saying you can't post on Facebook. 
Powers added: 
"Just not [anything] that sheds a negative light on any person, entity, board or things of that nature. You can go ahead and post all you want."
Powers has said that this policy is nothing new. Many corporations have similar restrictions on free speech. "This is just an industry standard nowadays."
But there's one thing Powers must have misunderstood.

Government- despite the encroachment of corporations- is not an industry. As Boston attorney and consultant Dr. Ronald B. Standler explains that the First Amendment says  that the government cannot prohibit free speech. That restriction does not apply however, to private corporations. Corporations can legally limit employees free speech, not governments. In effect, Powers has based his policy on a bad model. 

In addition, a government employee’s speech cannot be limited as a matter of policy if the employee made the speech in their capacity as a citizen (rather than speaking in any official capacity.) That's why trying to implement the policy for after working hours is going to be a challenge.  

At the very least, the commissioner who apparently suggested this should have offered a lot more concrete examples how Facebook or Twitter had significantly undermined the local government's operations or interfered with accomplishment of its objectives. Criticism alone just doesn't count, especially if those criticisms involve matters of "public concern." Theoretical problems caused by loose lips also do not really count for much either. 

That is of course a simplication. Powers probably should have consulted a few high quality lawyers before trying to implement a policy like this. (For a more dicussion on the topic, here's a good link.)

Level-Headed Common Sense?  
When announcing her intention of running for mayor back in May 2012, businesswoman and former educator Dawkins told voters what she had to offer.
"I'm bringing experience, love of community, common sense, honesty and a level head to this job,"
If this policy is anything to go by, voters might be starting to question the mayor's judgment. 

In a town of only 3,000 or so, there hasn't been all that much to complain about. Nothing to provoke a policy like this.There's not been, for example, any major scandal involving kickbacks or malfeasance. no juicy sex scandals. 
Some people complained when City Commissioner Jimmy Wigfall asked City Attorney Billy Gouger to investigate the possibility of South Pittsburg adopting an ordinance outlawing sagging pants. (South Pittsburg's fashion police?)

There was also the Snowball incident in which Mayor Dawkins ended up in the emergency room because her cat scratched her. (Does the cat have Facebook page, I wonder?)

If there has been any criticism of the local government, it has been what any mayor or commissioner should have expected when they signed up for the job. In fact, the only real criticism the city government has faced has come as a result the negative publicity from this Facebook nixing policy. A classic self-inflicted shooting of the foot.

At her swearing in ceremony last year, Dawkins became the small town's first female mayor. In her speech, evoking a little down home religion, she said. 
“Jesus was a servant. The most important promise I can make to you [citizens] is to be your public servant."
Comparing yourself to Christ was probably asking for trouble.

South Pittsburg's policy could end up costing the city plenty if it is ever challenged in court. 
It is clear that free speech is protected and law suits challenging bad free speech policy are much more common than you might think.  Bloomberg quotes a legal expert, Helen Norton, a professor at the University of Colorado School of Law who studies free speech as it applies to government workers, 
“This policy is dangerously broad....[O]nce you get into speech outside of the job and on private social media accounts, it’s not that simple.”
It might be possible- though unwise- to regulate free speech at the workplace, especially if it is meant to defame or injure another employee. If the language is vulgar or racism or homophobic, then there could be good case for restricting free speech. 
However, Norton points out, speech outside the job and on private online accounts is another matter altogether. There are already laws against slander and libel and defamation of character which could limit the problems Dawkins listed. 

This overly-broad policy goes much further. It was apparently aimed at restricting public discussion of public policy for the sake of expediency. That's not what open government is all about. Whether approved by officials or not, criticism of government in the public interest is a right- some would say, a duty - of all citizens.

This isn't Russia, after all.