July 17, 2013

ACLU says new Fairfield social media policy violates free speech rights

By Matt Hongoltz-Hetling mhhetling@centralmaine.com
Staff Writer

FAIRFIELD — Maine’s American Civil Liberties Union says a new policy governing the online habits of Fairfield town employees is unconstitutional, but town leaders say they’re just trying to prevent their workers from attacking each other on social media sites.

Under Fairfield’s new social media policy, the town’s employees, on their personal Facebook, Twitter and other social media accounts, may not use speech:

• containing obscene or sexually explicit language, images, or acts and statements;

• that would negatively affect the public perception of the town and its departments;

• divulging private facts and personal information about someone without their permission that has not been previously revealed to the public, is not of legitimate public concern, and would be offensive to a reasonable person;

• involving themselves or other town personnel reflecting behavior that would reasonably be considered reckless or irresponsible.

Employees who violate the policy are subject to discipline up to and including termination.

Concerns about how town employees were using their Facebook and Twitter accounts led the Town Council to adopt a policy prohibiting certain online behavior.

Under the policy, which was based on a model drafted for police departments, towns employees can be disciplined or even fired for any of a wide range of online behavior, including cursing, undermining the town’s image or using sexually explicit language.

The town has about 40 full-time employees, and about 30 more seasonal and part-time workers, Town Manager Josh Reny said. In recent months, a part-time librarian and a reserve police officer have both run afoul of the town for their online behavior. Neither work for the town anymore, in part because of social media issues.

Reny said the new policy is meant to stop employees from insulting each other or the town.

“We don’t want an environment where relationships between employees can be harmed,” he said.

He said the town supports the right to free speech, but that there is a limit.

“You can’t just say whatever you want,” he said. “You can’t make accusations, or impact the reputation of your employer. You can’t smear fellow employees.”

Rachel Healy, spokeswoman for the civil liberties union, said the policy is too restrictive.

“We are concerned that some provisions in the policy go too far in governing what employees do on their own time and on their own computers,” she said. “Public employees don’t give up their First Amendment rights to express themselves in their personal lives.”

One clause in particular drew concern from the ACLU.

Under the policy, any employee “becoming aware of or having knowledge of a posting ... in violation of the provisions of this policy shall notify his or her supervisor immediately for follow-up action.”

Healy said the clause puts an unfair burden on workers.

“We don’t think that employees can be compelled to rat out their fellow employees,” Healy said.

Reny said the clause is not meant to cause employees to actively monitor one another.

He said that, in some cases, “it is reasonable to expect that an employee should inform their supervisor.”

For example, he said, an employee might become aware that a coworker is making derogatory remarks about other employees, seriously impairing working relationships and morale in the department, or affecting the reputation of the town.

In the policy, one clause prohibits workers from posting speech “containing obscene or sexually explicit language, images, or acts and statements,” while another says that employees can’t make “statements, speeches, appearances and endorsements.”

Healy said the ACLU is concerned about the clause limiting speeches, but Reny said the clause is not meant to be read on its own.

The goal, he said, is to stop employees from making statements or speeches that could be considered to represent the positions of the town, not ones that clearly represented their own personal views.

He said the language “could probably be tightened up a bit” to make the difference more clear.

The Maine Municipal Association has its own social media policy, which it said has been used as the basis for guidelines in between 10 and 20 Maine communities.

There are broad statements in the association’s policy, but it doesn’t include many blanket restrictions on things like obscenities. Much of the content is phrased as a suggestion, rather than a rule.

“It is a good idea to refrain from sending or posting information that you would not want your supervisor or other employees to read, or that you would be embarrassed to see in a newspaper or on a prominent website,” it said.

(Continued on page 2)

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