In September 2019, a newspaper published an article accusing a corrections sergeant for the Illinois
Department of Corrections (Department) of posting “offensive” and
“Islamophobic” content on Facebook. Soon after, the sergeant was suspended from
his position at the Department, and filed a lawsuit to challenge the action. In Hicks
v. Illinois Department of Corrections, the Seventh Circuit Court of
Appeals held that the suspension did not violate Hicks’s free speech or due
process rights.

At the time the article was
published, the sergeant’s profile was public and listed the Department as his
employer. The day after the article ran, the Director of the Department sent an
email to all staff reminding them of the Department’s social media policy and
code of conduct. A Department investigator then interviewed the sergeant, who
stated that his personal views did not have an impact on his work. The
investigator concluded that the posts violated the Department’s code of conduct and
reflected negatively on the Department and its mission. The Department convened
a board hearing and recommended a 10-day suspension.

After the sergeant was suspended,
he sued the Department and several Department officials involved in the suspension
process, alleging violations of his right to free speech and due process. The
district court determined that the Department did not violate these rights
because the sergeant took deliberate steps to link his Facebook account to his
employer and the posts clearly violated the code of conduct and social media
policy.

On appeal, the Seventh Circuit
first considered whether the Department violated the sergeant’s right to free
speech under the First Amendment when it suspended him. The Court noted that the government, when acting as an employer, has greater leeway to moderate the speech of its
employees than when the government is acting to restrict the speech of the general public. The Court
applied a balancing test to determine whether the sergeant’s free speech
interests outweighed the Department’s interest in promoting effective and
efficient public services. The Court
found that the social media posts could interfere with the Department’s
operations, impact the sergeant’s ability to operate within the chain of
command, and erode public trust in the Department. As a result, the Seventh Circuit agreed with the district court and held that the Department did not violate Hicks’ right to free speech when it suspended him.

The Court also held that the
Department’s code of conduct was not vague and did not violate Hicks’ right to
due process. The Department’s code of conduct prohibited
activities unbecoming of a government employee and activities that would
reflect unfavorably on or impair the Department’s operations. After a review
of the sergeant’s Facebook posts, the Court concluded that the code clearly prohibited the
sergeant’s social media activity and there was no due process violation. 

Post Authored by Alexis Carter & Erin Monforti, Ancel
Glink