New Orleans Mayor LaToya Cantrell’s administration is asking all city employees to sign a new policy memorandum that adds expectations and restrictions on employee social media use.
Most of the memo mirrors the language from a 2013 policy memo, issued under former Mayor Mitch Landrieu, regarding social media and general employee etiquette.
The new memo carries over all the general employee etiquette requirements from the earlier one. It also carries over all four social media restrictions from the 2013 memo, including a prohibition on employees using “their position as a city employee to promote opinions, products or causes,” posting anything defamatory or anything that would infringe on others’ privacy.
But the new memo also adds five new social media restrictions. Among them is a new rule stating that employees cannot “engage or respond to negative or disparaging posts about city departments, employees or policies.”
“The City respects the rights of City employees to use social media as a medium of self-expression, but as online communications become more of a participatory action, the lines between the public and the private, personal and professional, can be blurred,” the new memo says.
According to the policy, employees are required to sign the memo, and violations can lead to disciplinary action and “possible termination of employment.”
“The suggested progression is verbal warning, written warning, suspension, demotion, and where circumstances warrant, termination,” the memo says. “In certain instances, the City may terminate without progressive discipline where egregious conduct occurs.”
The wording of the policy leaves some questions about what social media actions, exactly, would violate the policy, what kinds of social media posts might qualify as “negative or disparaging” and whether the implementation and enforcement of the policy could pose a potential violation to employees’ First Amendment rights to free speech.
The Lens asked Mayor LaToya Cantrell’s office to comment on the new policy, including why it was amended now and how it would be enforced. In response, her office sent The Lens a statement clarifying that the memo was only updating an existing policy.
“CAO Policy Memorandum 83(R) is not a new policy, but instead is a policy updated only to include specific reference to current technology,” the statement said.
Lori Mince, an attorney at Fishman Haygood law firm in New Orleans who is part of its employment litigation team and has experience in First Amendment and media law, said that the constitutionality of some of these rules would come down to how they were enforced. In an email, Mince cast doubt on the enforceability of the memo’s new provision ordering employees not to “engage or respond to negative or disparaging posts about city departments, employees or policies.”
“This provision is almost certainly too broad,” she said in an emailed statement. “Courts have held that government employers may restrict their employees’ speech where their interest in efficiently fulfilling public functions outweighs the employee’s right of expression.”
The city’s Civil Service rules, for example, prohibit certain types of political activity. But they are more narrowly tailored to stop employees from publicly expressing support or opposition to political candidates or parties during elections.
Mince said that determining that balance was a “highly fact-based inquiry,” and listed more than a dozen considerations that would determine whether an individual act was protected by the First Amendment. The factors included “the degree of public interest in the speech,” “whether the speech impeded the employee’s ability to perform his or her duties” and whether the speech “interfered with the operation of the institution.”
“To give an example,” Mince wrote, “a city maintenance worker could almost certainly post that he disapproves of the Mayor’s policies on COVID, but he likely could not post that his supervisor is incompetent.”
Mince also cast uncertainty on a carryover clause from the 2013 memo, which says that employees cannot “use their position as a city employee to promote opinions, products or causes.”
“My initial reaction is that the policy as written is fine, but the application of the policy could result in a challenge,” Mince said in her statement. “The key here is that the rule is limited to using one’s position as a City employee to promote opinions, etc. The Supreme Court has held that government employees are only protected by the First Amendment when they are speaking as private citizens. That can sometimes be difficult to assess.”
The memo claims, as the 2013 memo claimed, that employees covered by the Civil Service system — called “classified employees” — are already subject to the restriction on promoting opinions, products or causes by the Louisiana Constitution and the Civil Service rules. However, neither uses that specific language. And both explicitly allow employees to publicly endorse certain ballot measures, including tax referenda and proposed amendments to the state constitution.
“The City Attorney’s Office is reviewing the policy’s provisions regarding classified employees’ improper use of their position as a City employee to promote political or other opinions through social media,” the statement from Cantrell’s office said. “To the extent such conduct is not expressly prohibited by law, the City may prohibit improper use of an employee’s city position by policy.”
The policies don’t just apply to Twitter and Facebook. The memo clarifies that the rules also apply to communications on Slack, as well as online games including World of Warcraft and Farmville.
The last page of the policy is titled “EMPLOYEE ACKNOWLEDGEMENT OF RECEIPT.”
“I understand that if I do not follow these standards, disciplinary action may be taken against me,” the policy says above two lines for the employee’s signature and the date.
This story was updated after publication to include a comment from Mayor LaToya Cantrell’s office