Can a public employer terminate an employee for TikTok, Instagram, or other social media posts predating the employment without offending the First Amendment?

Facts and circumstances cannot be overlooked, but in this jurisdiction, the First Circuit, the answer depends on (i) whether the employee—in the posts at issue—engaged in speech as a citizen on a matter of public concern; (ii) a balancing between the employee’s interest as a citizen in commenting on matters of public concern and the government’s interest as an employer in promoting the efficiency of public services through its employees; and (iii) whether the posts were a substantial or motivating factor in the termination.

In a recent decision, MacRae v. Mattos et al., a Massachusetts Federal Court held that this three-part analysis is implemented even when the social media posts predate the employment, as opposed to occurring during the employment. The Court held the public employer need not prove actual adverse effect from the posts to terminate the employee and significant weight is given to the public employer’s reasonable predictions of disruption.

Applying this framework, the Court disposed of a schoolteacher’s First Amendment retaliation claim against a school district for terminating her for sharing, posting, and reposting memes that invoked homophobia, transphobia, and racism using her TikTok account. The Court found ample evidence for the potential for disruption to student learning and the school district’s mission—citing, among other things, colleagues’ testimony that the posts were inconsistent with the school district’s mission to promote tolerance and respect for human differences, and growing media attention on the schoolteacher’s social media posts.


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