Caution Regarding Social Media Posts

Original post, February 22, 2017

We have been getting questions from our bargaining unit members regarding the Agency’s “Best Practices Guide for Social Media”. Specifically, employees want to know if the Agency can restrict what they post on their own private social media sites. The answer: in some cases, almost certainly – yes – and in others, probably not.

VOA Director Amanda Bennett, in a recent directive to employees, stated: “I want to remind all of you that our social media policy is extremely clear. As journalists, we must maintain our neutrality even on our personal social media accounts.

“We have had some unfortunate incidents recently in which people have used their personal accounts to express political views. That is unacceptable. As journalists we are required to be unbiased and neutral. Expressions of strong political feelings even on private accounts undermine our credibility and reliability.”

That is the Agency’s stated policy.

Is this policy a violation of free speech rights? The courts have ruled that there is a balancing of interests that is weighed between the employee’s free speech rights and the impact of those free speech rights on the employer’s operations. The Courts have found that there is no violation of First Amendment rights where the Government Agency has an interest in maintaining the public’s respect, trust and reputation. As a broadcasting entity, the BBG could make a strong argument that the expression of personal opinions of its journalists on controversial subjects on their personal social media sites could negatively impact the Agency’s reputation and credibility as a journalistic entity. So, although the Agency is prohibiting its employees from speaking as private citizens on matters of public concern to the public via social media, if the matter went to the courts or arbitration, the Agency would have a strong argument that journalists who express opinions on controversial matters in their personal capacities (i.e., their personal and private Facebook or other social media pages) directly and substantially disrupt operations and employment relationships.

Thus, VOA journalists are unlikely to prevail in an action alleging that the Policy is an unconstitutional prior restraint on free speech.
However, in the case of non-journalist employees, it would be a different story because non-journalist employees would have a strong case regarding the Agency’s prior restraint to their First Amendment rights; it would be difficult for the Agency to demonstrate that non-journalists expressing opinions on private social media sites could directly and substantially disrupt operations and employment.