Your boss has a say over you while you’re on the clock or using the boss’s equipment. But can the boss control what you say off-duty, on the Web? Officials in Kent County, Delaware, think so:

The county’s Levy Court — the equivalent of a county council — has an existing rule that bars employees from using government equipment for personal social media activity at work. But a recent proposal would extend that ban to include activity during non-work times, specifically as it relates to commentary that disparages co-workers or reflects unfavorably toward the county government [Brian Heaton, “Social Media Usage Becoming a Free Speech Question for Governments,” Government Technology, 2011.05.17 ].

As law professor Phillip Sparkes points out in this article, Kent County is going well beyond the boundaries on public employee speech set by Garcetti v Ceballos (2006). That case recognized that public employers can place some limits on what city officials, teachers, and other public employees say while acting in an official capacity. However, that case does not allow government to impose rules on off-duty speech like those proposed by Kent County.

Arvada, Colorado, CIO Michele Hovet offers a more realistic approach to public employees’ First Amendment rights:

“I think folks that draw lines as far as what you can and can’t do on your free time are avoiding the inevitable,” she said. “Social media has been here and it’s not going away. Locking it down is just going to create more management headaches in the long run” [Heaton, 2011.05.17].

People are going to talk… and Tweet. They’re going to use their smartphones and iPads to do so. Trying to control employees’ every utterance is unconstitutional and impractical. Instead of trying to keep employees from talking, local governments will make better use of their time working to treat employees and the public right so they all have good things to talk about.