Bennett v. Metro: Public Employee Free Speech & Due Process

Facts of the Case

In Bennett v. Metropolitan Government of Nashville and Davidson County, the court found that the government employer had the right to discipline its employee, Vicky Bennett, for a Facebook post that contained racially charged language and could be construed as impeding the mission of the government agency where she worked. Bennett argued that she had a right to free speech protected by the First Amendment. Her employer, however, believed that as a representative of Metro she should have refrained from language that would reflect poorly on the organization. The issue came down to what are known as Pickering factors, which weigh the employee's interest in free speech against the employer's interest in promoting the efficiency of public services (Oluwole, 2007).

The Pickering test is a legal framework used to balance the competing interests of public employees in free expression and government employers in maintaining an efficient workplace. The test consists of several factors considered in determining whether a public employee's speech is protected under the First Amendment. These factors include: the content, form, and context of the employee's speech — that is, what the employee said, how they said it, and the circumstances in which it was said; the nature of the employee's job, including whether they play a role in policymaking or public communication; the government's need to maintain an effective and efficient workplace; whether the employee's speech disrupts or interferes with the workplace and the employer's ability to carry out its mission; and whether the speech touches on a matter of public concern (Oluwole, 2007).

Bennett argued she was retaliated against for speech that was "conservative," or right-leaning in its orientation. However, the language in the post was clearly socially unacceptable by contemporary standards and included racial slurs and a reference to being a "proud redneck." Whether this was sufficient to justify her termination was essentially the question put before the court. Initially, the lower court ruled that it was not. The Sixth Circuit Court of Appeals, however, ultimately held that the district court erred in its analysis of the Pickering factors. The appellate court found that the disruption of the workplace and harm to working relationships were significant enough to justify the employer's disciplinary action, and that Bennett's comments were not a matter of public concern — which would have required the employer to meet a higher burden of proof to justify discipline. Accordingly, the court found that the employer's action did not violate Bennett's First Amendment rights.

Balancing First Amendment Rights

As public employees, government workers have a right to free speech under the First Amendment, but this right is not absolute. The Supreme Court has recognized that the government has a right to regulate the speech of its employees in order to promote the efficiency of its services and avoid disruption in the workplace (Schoen, 1999). Therefore, public employees may be subject to reasonable restrictions on their speech, particularly if their speech interferes with their ability to perform their job duties or with the government agency's ability to provide services effectively.

The factors that must be considered in balancing a public employee's First Amendment rights are the following:

1. The extent to which the speech relates to matters of public concern.

2. The extent to which the speech interferes with the employer's ability to perform its duties and maintain discipline and harmony in the workplace.

3. The extent to which the speech was made in the course of the employee's job duties.

4. The extent to which the employee's speech impaired the functioning of the government agency.

5. The context, form, and content of the speech.

Ultimately, Bennett argued that her speech was a matter of public concern because it was posted on her public Facebook profile, where anyone could see and comment on it. However, that same visibility meant that viewers could also identify her as a Metro employee, making her a representative of that public organization. The court ruled that Bennett herself should have done a better job of balancing her right to free speech with her duty to her employer, which would not welcome language that conflicted with its policy of inclusivity.

References

Bennett v. Metro. Gov't of Nashville & Davidson Cnty. (6th Cir. 2020).

Oluwole, J. O. (2007). The Pickering balancing test and public employment-free speech jurisprudence: The approaches of federal circuit courts of appeals. Duq. L. Rev., 46, 133.

Schoen, R. B. (1999). Pickering plus thirty years: Public employees and free speech. Tex. Tech L. Rev., 30, 5.