Constitutional Rights of Public Employees: Moonlighting on Onlyfans Edition
News broke last week about a female deputy sheriff in Colorado who separated from employment—reportedly with a $30,000 severance package—after her colleagues discovered that she had a webpage on a social media platform known as “only fans” where she posted nude and sexually explicit photos and videos of herself. I say “separated from employment” because there are evidently conflicting accounts from the sheriff’s department and from the deputy herself as to whether she was effectively terminated, i.e. asked to resign in lieu of termination, or resigned voluntarily. In any case, she supposedly did not use her real name on the site and made no indication that she was in law enforcement. In other words, for purposes of the topic at hand, her site was entirely private. The topic at hand, then, is this: to what extent is a public employer able to regulate the private affairs of its employees?
Like it or not, sexually explicit material is generally protected by the First Amendment, unless it is obscene. Obscenity, however, is a difficult thing to determine—as Supreme Court Justice Potter Stewart famously stated, “I know it when I see it.” Furthermore, societal standards change over time, and what may have been considered obscene at one time may not be obscene by today’s standards. Obscenity notwithstanding, we will presume for this discussion that the “speech” at issue is indeed protected by the First Amendment.
In 1968, long before anything we now know as “social media” existed, the United States Supreme Court determined that public employees do not relinquish their constitutional rights by accepting public employment. Nevertheless, the court recognized that public employers have an interest in the effective and efficient carrying out of public business. Therefore, the Court established a balancing test to determine whether the public employer’s interest outweighs the employee’s private interest. Since this initial balancing test, there have been a series of cases that have refined and adapted it to different contexts; but, unfortunately, new forms and forums of speech have developed so quickly that the balancing test is struggling to keep up.
One reason why the balancing test is struggling to keep up is that most cases that are appropriate for applying it in the social media context have concerned a public employee’s post or comment that is critical of their public employer in some way, after which the employee was terminated. Often, these cases are not determined by applying the balancing test because the public employer is able to demonstrate other reasons why the employee was terminated. Essentially, the argument is typically that the employee became aware that their termination was imminent and made the post or comment so that they could claim retaliation. The courts tend to find this argument plausible and dispose of the cases in the public employer’s favor without applying the balancing test.
So, in the current era of uncertainty as to how the balancing test would be applied in the social media context, what should a public employer do if concerned that employees may utilize social media in a manner that the employer finds objectionable? Frankly, the best option may be to not regulate employees’ social media at all, but otherwise, the best practice may be to establish a social media policy for employees that essentially states the balancing test criteria most recently used by a court having jurisdiction, and ideally as applied to the particular type of public entity at issue. After all, the interests of a sheriff’s department may be materially different from the interests of a public utility or transit authority.
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