UMC, Barbour, and Pickering (not THAT Pickering)
A self-admitted Twitter addict, I chuckled when I heard that the University Medical Center had forced out an employee for posting a derogatory Tweet to Gov. Haley Barbour regarding what she suggests is a tendency of the governor's to schedule Saturday medical exams.
Upon further reflection, though, I'm not laughing anymore, because the woman's message appears to fall pretty squarely on the constitutionally protected side of the Pickering-Garcetti divide.
Pickering v. Board of Education, as First Amendment nerds know, is the U.S. Supreme Court's seminal case on the protections afforded by the First Amendment to the speech of government employees. Reversing the state court that had ruled against Pickering, and writing for a majority of eight, Justice Marshall held in 1968 that the "exercise of [a public employee's] right to speak on issues of public importance may not furnish the basis for his dismissal from public employment."
Nearly 40 years later, the Roberts Court distinguished that rule from the set of facts laid out in Garcetti v. Ceballos. In that case, Justice Kennedy wrote for four other justices that the First Amendment offers no protection "when public employees make statements pursuant to their official duties," because in such instances, the speaker is acting as an employee, rather than a private citizen. In Ceballos' case, he spoke up in his role as an assistant district attorney to challenge the validity of a search warrant.
But in Pickering's case, the speech at issue was Pickering's criticism of his school board's budgeting priorities -- a statement on an issue of public importance that he just as well could have made if he were just another guy. Justice Marshall found particular importance in the fact that Pickering's "statements are in no way directed towards any person with whom [he] would normally be in contact in the course of his daily work as a teacher."
The question, then, is whether our (now former) UMC employee was speaking as an employee or as a private citizen. Given that (a.) she was speaking on Twitter, a public forum, (b.) she was addressing a matter that even Gov. Barbour would agree is of great public importance, and (c.) her job did not normally bring her in contact with Gov. Barbour during the course of her daily work, the answer seems pretty obvious to me. She spoke not as an employee but as a private citizen.
According to the newspaper account, the employee was told she'd broken patient privacy laws. I'm not deeply familiar with the statute off the top of my head, but I'd be surprised to learn that even the date of a previous appointment qualifies as "sensitive medical information." But even if it did, it's fundamental hornbook law that statutes bend against constitutional protections. If this woman's speech was protected by the First Amendment under Pickering, then it was protected by the First Amendment. Period.
And it seems pretty obvious to me that it was.
I read this article as well. To make it even more interesting, she claims she was basing her comments on something she had read in the paper. In other words, she didn't base her comments on protected information. Of course, I have no idea if she's telling the truth.
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I find this case and similar ones to be interesting because as a teacher, we are often warned about posting anything about anything online or taking part in social media. It is almost as if some people believe that teachers give up their rights to speak in public about any issues because of their jobs.
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