Social media creates tricky situation for feds

Thursday - 10/24/2013, 10:50am EDT

Debra Roth on the Federal Drive.

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Be careful what you tweet — just 140 characters could cost you your job.

That's what happened to Jofi Joseph, an official in the National Security Staff at the White House. Joseph was fired after he was caught using the Twitter handle @NatSecWonk to openly criticize the government.

The Daily Beast reports that Joseph had been using the Twitter handle since February 2011. The Twitter feed was "famous inside Washington policy circles."

@NetSecWonk's feed is no longer available. A White House official confirmed that Joseph no longer works for the administration

Now Joseph's dismissal is raising some questions about what federal employees can and cannot say on social media and their rights to free speech.

"The Supreme Court has said public employees — federal and state employees — who speak out as a private citizen on a matter of public concern do have a First Amendment right to speak," Debra Roth, partner at Shaw Bransford & Roth, said on the Federal Drive with Tom Temin and Emily Kopp. "So the question becomes, are you really acting as a a private citizen?"

As long as a federal employee is speaking as a private citizen, Roth said the speech is protected under the First Amendment. But if the employee is speaking as a public official as part of his or her duty, the government has a right to restrict speech.

A similar case was brought up recently when federal employee Ayo Kimathi was put on administrative leave for his racist website War on the Horizon.

Another case nearly 10 years ago involved U.S. Park Police Chief Teresa Chambers. Chambers was fired in 2004 for speaking to media outlets about budget shortfalls within her agency.

"It was found by the [Merit Systems Protection Board] that she was not speaking as a private citizen; she was speaking as Teresa Chambers, Chief of Park Police," Roth said. "And because she was speaking in her official capacity, not as a private citizen, her speech could be restricted by the government."

MSPB eventually found the evidence against Chambers to be weak, and she was reinstated in 2011.

Joseph's case is a bit more complicated because of an "additional layer" in the situation, Roth said. Although Joseph was speaking as a private citizen using an incognito Twitter account, she said he is most likely appointed by the president and not part of the competitive service. Employees in the competitive service, such as Chambers, have a right to their job as protected by the First Amendment. Joseph was essentially in an at-will position, meaning he is exempt from job protection.

"If he were a career civil servant and had an appeal right to the MSPB... the government can't rely on information to take a job action against you, and not disclose it to you. That's the foundation of due process," Roth said.

Joseph had been under investigation for a few years, but Roth said it is unknown which group or agency was conducting it.

"They were getting his travel records, his vacation records, his phone records," she said. "Especially since it involves a White House official, I wouldn't be surprised if the FBI were part of that investigation, because there was some concern that he was posting information that was determined to be sensitive or classified."

Joseph does not have an appeal to the MSPB, but he could submit a FOIA request to find out who conducted his investigation.

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