US Court of Appeals Determines Racial Slur by Public Employee Is Not Protected Free Speech

In early October 2020, the United States Court of Appeals for the Sixth Circuit (Sixth Circuit) determined that a racial slur made by a public employee on Facebook while discussing politics was not protected by the First Amendment. Bennett v. Metropolitan Government of Nashville & Davidson County, Tennessee, 977 F.3d 530 (2020).

Background

Danyelle Bennett (Bennett) was an employee of the Emergency Communication Center (ECC) of the Metropolitan Government of Nashville (Metro). Bennett’s position required her to field emergency calls. On the night of the 2016 Presidential election, Bennett posted a comment about Donald Trump’s victory on her public Facebook page. In response to a comment made about her post, Bennett used a racial slur. The ECC and Mayor’s office received complaints from several employees and a member of the public. As a result, Metro placed Bennett on administrative leave, investigated, and eventually terminated her for violations of Civil Service Rules.

Subsequently, Bennett sued Metro for retaliation under the First Amendment. The lower Court ruled in favor of Bennett. Metro appealed arguing that the lower Court gave more protection than the law permits and minimized the disruption of Bennett’s comments on the ECC.

Analysis

In making its determination, the Sixth Circuit considered whether the employee’s free speech interests outweighed the government’s efficiency interests as an employer. The Court reasoned the statement substantially disrupted the ECC. There were ongoing conversations about the issue that lasted for days. Additionally, Bennett showed no concern for her coworkers and felt they should apologize to her. Finally, if Bennett returned to work, harmony among workers would have likely worsened.

The Sixth Circuit next determined the racial slur harmed close working relationships. Several employees had concerns about working with Bennett after her use of the racial slur in the post. Some African American coworkers were concerned about Bennett being able to treat their families fairly if they called for help.

The Sixth Circuit also concluded the racial slur undermined the mission of the ECC. The ECC’s mission is to “provide the vital link between citizens and first responders for all emergency and non-emergency calls and to do so in an efficient, courteous, and polite manner.” The public comments Bennett made discredited ECC because they displayed racial bias without disclaimer that the views were hers alone. Bennett was in a public-facing role, identified herself as a Metro employee, and made the racial slur on her public Facebook page.

Conclusion

The Sixth Circuit ultimately concluded that although there were some factors favorable to Bennett, sufficient disruption was shown, and Metro’s interest in maintaining an effective workplace to ensure public efficiency outweighed Bennett’s interest in using a racial slur in a Facebook comment.

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