Two employees of the city of New Orleans filed a federal lawsuit on Thursday alleging that their First Amendment rights are being violated by a city policy on employee social media use. The policy dictates, among other restrictions, that city employees are not allowed to “engage or respond to negative or disparaging posts” about city government.
“The City of New Orleans has adopted an employee conduct policy that violates the free speech rights of all City employees,” the suit said. “An employee can be fired for any speech critical of the City— regardless of whether that speech pertains to or has any impact upon the person’s job. The Policy also provides for discipline or termination if an employee engages in “offensive” speech, which is undefined by the Policy, and is a term so vague that employees cannot know what speech might get them fired.”
The plaintiffs in the suit are both employees of the public library — Eren Wilson and Andrew Okun. Along with their library employment, Okun is also a writer and editor, according to the suit, and Wilson is a TikTok creator and Discord streamer.
In June 2020, Mayor LaToya Cantrell’s administration updated a city policy on “Standards for Behavior for Employee Conduct” and forced all city workers to sign it. According to the lawsuit, both Okun and Wilson were initially hesitant about signing the document, but eventually did a couple months later.
Much of the policy was simply carried over from a 2013 policy created under then-Mayor Mitch Landrieu. But the Cantrell administration added several new clauses to the policy regarding employee use of social media, including the new prohibition on “negative or disparaging posts” about the city.
Cantrell’s office declined to comment for this story.
“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 policy says.
The policy says that 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.”
As The Lens reported last summer, the new policy left open questions about what social media posts, exactly, would be classified as “negative or disparaging” and whether the restrictions fell within the bounds of First Amendment protections.
“If their trash is not picked up, Plaintiffs cannot tweet about perceived inefficiencies in the Department of Sanitation,” the lawsuit said. “If there is a broken water line in front of their homes, they cannot post about it on Facebook—because it would be “negative” speech about the City agency Sewerage and Water Board. Or if their car loses an axle in a gaping pothole, they cannot even send a Slack message to a friend bemoaning the City’s failure to repair the streets. Unless their speech were entirely positive, City employees could not observe that the Hard Rock Hotel collapsed or that the City was subject of a cyber-attack.”
The lawsuit also raises questions about another clause in the policy that orders employees to “avoid the offensive.”
“Do not post any defamatory, libelous, vulgar, violent, obscene, abusive, profane, threatening, racially and ethnically hateful, or otherwise offensive or illegal information or material,” the memo said.
The lawsuit points out that these terms remain undefined in the policy.
“What is ‘offensive?’ What is ‘vulgar?’ ‘violent?’ ‘obscene?’ or ‘abusive?’ What is ‘speech that promotes, fosters, or perpetuates discrimination of protected classes, sexual harassment, or illegal activity”? The Policy’s terms are so vague that City employees do not know what speech actually may run afoul of the Policy. This has an enormous chilling effect on speech that is otherwise protected.”
The lawsuit also points out that the memo’s definition of social media goes beyond just typical public forums like Twitter, Facebook and Instagram. It also includes video games, website comment sections and private messaging apps like Telegram and Slack.
“It bans ‘profane’ speech in private communications on forums such as World of Warcraft and Farmville,” the suit said. “There is no government interest served by a prior restraint on an employee’s ability to curse via chat when playing video games.”
The lawsuit asks the court to rule that the policy is unconstitutional and prevent the city from enforcing it.