Paul M. Secunda (Marquette University – Law School) has posted Blogging While (Publicly) Employed: Some First Amendment Implications
(University of Louisville Law Review, Vol. 47, No. 4, 2009) on SSRN. Here is the abstract:
While
private-sector employees do not have First Amendment free speech
protection for their blogging activities relating to the workplace,
public employees may enjoy some measure of protection depending on the
nature of their blogging activity. The essential difference between
these types of employment stems from the presence of state action in
the public employment context. Although a government employee does not
have the same protection from governmental speech infringement as
citizens do under the First Amendment, a long line of cases under
Pickering v. Bd. of Education have established a modicum of protection,
especially when the public employee blogging is off-duty and the blog
post does not concern work-related matters.Describing the
legal protection for such public employee bloggers is an important
project as many employers recently have ratcheted up their efforts to
limit or ban employee blogging activities while blogging by employees
simultaneously continues to expand. It should therefore not be
surprising that the act of being fired for blogging about one’s
employer has even led to a term being coined: "dooced." So the specific
question that this essay addresses is: do dooced employees have any
First Amendment protection in the workplace? But the larger issue
examined by implication, and the one addressed by this Symposium, is
the continuing impact of technology on First Amendment free speech
rights at the beginning of the 21st Century.This contribution
to the Symposium proceeds in three parts. It first examines the
predicament of private-sector employees who choose to blog about their
workplaces. The second section then lays out the potential First
Amendment free speech implications for public employees who engage in
the same types of activities. Finally, the third section briefly
considers a potential future trend in this context from Kentucky
involving government employers banning employee access to all blogs
while at work.