Courts recognize that the government has an interest in regulating certain forms of speech. However, that interest does not cancel out each citizen’s right to free speech as granted under the First Amendment of the U.S. Constitution. When faced with a lawsuit brought under the First Amendment, the courts will therefore consider the interest of the government in regulating speech against the constitutional rights of the person who made the speech.
In a recent lawsuit which was filed under the First Amendment, a government worker filed a lawsuit against her former employer, the Oregon Department of Health Services (DHS) for alleged wrongful termination as a result of posts which she uploaded onto her Facebook page. The plaintiff, Jennifer Shepherd, worked in child protective services and determined child custody cases. As part of her job, she was regularly called in to court to testify in custody cases.
On more than one occasion, Shepherd posted to her Facebook page derogatory remarks about individuals on public assistance. These included a suggestion that those on public assistance be forbidden from owning a flat screen television, banning people who are on public assistance from having any more children, and sterilizing people who have previously had their parental rights terminated. The DHS conducted an investigation into these posts, after which it terminated Shepherd’s employment.
Firing an employee in retaliation for exercising their right to freedom of speech is against the law. To determine whether or not an employee was wrongfully terminated under the First Amendment, the courts are provided with a test consisting of five elements. The court used this test in deciding whether the DHS violated the law in terminating the plaintiff’ employment as a child protective services worker. Specifically, the court focused on the fourth element of the test, “whether the state had adequate justification for treating the employee differently from other members of the general public.”
Despite having made these negative comments, Shepherd admitted to the court that, as part of her role in child protective services, she was “to be a neutral appraiser of the settings in which the children live.” She was not supposed to consider the employment status, religious or political beliefs of the adults in the home, or concern herself with how they chose to spend money or furnish their home. Shepherd also affirmed that she was aware that the majority of the parents being assessed by the DHS were on Temporary Assistance to Needy Families, food stamps, and/or the Oregon Health Plan.
The DHS argued that, as a result of the derogatory comments that Shepherd posted onto her Facebook page, she would immediately be impeached by the defense attorney every time she was called to testify in court. This prevented her from performing an important part of her job. Another result of the Facebook posts was the fact that two coworkers expressed doubt as to Shepherd’s ability to effectively perform her job. As such, the DHS argued that the Facebook posts caused “substantial disruption” in the workplace and the court agreed.
The First Amendment provides greater freedom of speech if the speech in question is “intended to help the public actually evaluate the performance of a public agency” or if it is spread to a wider audience. The court ruled that the Facebook posts that Shepherd uploaded did not fulfill either of these requirements. Shepherd stated that the posts were meant to be humorous and ironic rather than informative. As such, the court ruled that they are not qualified for special protection under the First Amendment. As far as spreading the information, the plaintiff had customized her Facebook settings such that only her designated Facebook friends could view her posts. Therefore, the posts did not meet the second requirement for protection under the First Amendment. The court granted the plaintiff’s motion for summary judgment and dismissed the case.
You can view the Court’s full opinion here.
Our Chicago defamation, slander, libel, cyberbullying and First Amendment attorneys concentrate in this area of the law. WWe have defended or prosecuted a number of defamation and libel cases, including cases representing a consumer sued by a large luxury used car dealer in federal court for hundreds of negative internet reviews and videos which resulted in substantial media coverage of the suit; one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired; and a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law, where the lawyer attended law school and the President of the University of Illinois. One of our partners also participated in representing a high profile athlete against a well-known radio shock jock.
Our Chicago defamation lawyers defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Lake Forest and Vernon Hills, who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.
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