Questionable Communications: City Employee’s Tweet Leads to Termination

Not surprisingly, Kansas City Chiefs kicker Harrison Butker’s recent commencement speech at Benedictine College set the internet on fire.

From Benedictine grads and Taylor Swift fans to the NFL and an order of nuns, the reactions to Butker’s May 11 remarks at the Atchison, Kan.-based private liberal arts college were visceral and wide-ranging.

Butker’s 20-minute address included remarks describing Pride Month as an example of LGBTQ individuals “living in sin,” decrying “the tyranny of diversity, equity and inclusion,” and observing that his spouse’s life “truly started when she began living her life as a wife and as a mother.” While some denounced the speech as homophobic and sexist, others voiced their support for Butker, echoing his personal beliefs, or at least defending his right to express them.

One now-former employee with the City of Kansas City would fall into the former category, using the City’s X account to share a May 15 post offering “a reminder that Harrison Butker lives in the City of Lee’s Summit.”

The post was quickly deleted, followed within an hour by a City post apologizing for the previous tweet and saying it was “shared in error.”

The City worker who shared that initial tweet, however, was terminated, with Kansas City Mayor Quinton Lucas telling Fox4KC that the City had “separated” from the employee involved with the social media post.

According to Fox4KC, the City says the employee—who the organization did not identify—violated policy by “posting outside the scope of authorized City communications.”

This scenario raises some interesting legal questions for public sector employers, David Urban, senior counsel with Liebert Cassidy Whitmore, told PSHRA.

“Often, we see public employees posting materials on their personal Facebook or X accounts that embarrass their public agency employer, disrupt its operations or make it difficult for the employee to keep doing their job,” said Urban, who represents public and private educators and public agencies in labor and employment matters.

“If the employer wants to impose discipline, it has to take into account whether the employee’s social media post was protected speech under the First Amendment.”

If the employee shares such a post on their own time, outside of work, then the issue typically comes down to a balancing test that a court has to decide, ultimately choosing between the employee’s constitutional rights and the agency’s legitimate administrative interests, he said.

“But to have a speech claim at all, the employee has to show they are being punished for speech that is on a matter of public concern—not just something about a mundane workplace grievance or interpersonal squabble—and also that the speech was rendered by them outside of their official duties.”

In the case of the City of Kansas City employee who shared Butker’s town of residence, the City would have a strong argument that the “official duties” rule bars any First Amendment claims if it can show the employee’s official duties included writing and selecting various posts on the City’s social media channels, and the employee is authorized to use the City’s social media platforms for that reason, said Urban.

“If the employee did not have authorization at all,” he added, “then it is the balancing test that should favor discipline.”

Disclosing someone’s personal residence information, “presumably to antagonize them and enable third parties to harass them,” said Urban, “does not constitute something a court will likely want to find to constitute First Amendment-protected speech when it comes to a public agency employer seeking to discipline an employee for it.”