In Hicks v. Illinois Department of Corrections, a newspaper accused Illinois Department of Corrections (IDOC) employees of posting “offensive content” on Facebook. This accusation led to an internal investigation, and the IDOC determined that a corrections sergeant’s Facebook posts violated their code of conduct. The sergeant had posted several anti-gay and anti-Muslim comments on his personal Facebook page, and he was disciplined with a 10-day suspension. The sergeant sued the IDOC and its officials for violating, among other things, his free speech rights.
On appeal, the Seventh Circuit upheld the suspension in favor of the IDOC. In analyzing the sergeant’s free speech claim, the court first considered whether the employee spoke “as a citizen upon matters of public concern” (which carries a level of constitutional protection) as opposed to “as an employee upon matters only of personal interest” (which does not). Despite the fact that the sergeant listed his job title and included a photo of himself in his IDOC uniform on his Facebook page, the court nevertheless concluded that he was speaking as a citizen and not in his official duties as an employee.
However, even protected speech by a public employee has its limits. If the government’s interest in promoting effective and efficient public services outweighs employee’s interests in speaking on a matter of public concern, the government employer can restrict the speech. In this case, the court considered the unique need for security to be maintained within correctional facilities, the fact that this sergeant worked with populations of inmates who were in the very groups his Facebook posts reviled, the erosion of trust in the corrections system that would be created by his Facebook posts, and the legitimate litigation risks his posts created for the IDOC. These factors outweighed the sergeant’s interest in expressing his own personal views. Even though the sergeant’s posts had not yet disrupted the operations of the corrections facility, the potential for disruption was significant enough to warrant his suspension.
This case is a good illustration of the fact that, while public employees exercise significant free speech rights on their personal social media accounts, those rights are not unlimited and can be curtailed in certain cases.
Please contact a member of our Labor/Personnel practice group with questions.
Source: Hicks v. Illinois Dep’t of Corr., — F.4th — (7th Cir. 2024)
