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The Pennsylvania Supreme Court on Thursday waded into questions about whether the Pennsylvania Department of Transportation should be able to fire an employee who posted a Facebook rant in which she said she “will gladly smash into a school bus.”

The half-hour argument session in Carr v. PennDOT focused in large part on how the woman identified herself in the post and Facebook profile, and how those factors could play into the decades-old test used to determine if a public employee’s speech is protected.

Early in the argument session, Justice Debra Todd noted that Carr had identified herself as a PennDOT employee in the biography section of her Facebook profile.

“That makes a difference, doesn’t it?” she asked. “The analysis is of a PennDOT employee, which, in some respects, casts dispersion on PennDOT.”

Justice Kevin Dougherty, however, drew a distinction between the offending post and the biography section of the Facebook profile, which, he noted, would not have been immediately apparent to the people viewing the post.

“In the rant she never identified the fact of where she worked,” he said, adding that those who complained about the post needed to do “research” to determine where she worked. “The content never identified her as a PennDOT employee.”

In June 2018, a three-judge panel of the Commonwealth Court unanimously reversed a decision by the state Civil Service Commission dismissing plaintiff Rachel Carr’s challenge to PennDOT’s termination of her employment and ordered that she be reinstated to her position. The panel said Carr’s Facebook comments were protected by the First Amendment because she was speaking about a matter of public concern and there was no evidence that the comments would cause tangible harm to PennDOT.

According to the court’s opinion, Carr was fired after posting the following to a Facebook group called “Creeps of Peeps”: “Rant: can we acknowledge the horrible school bus drivers? I’m in PA almost on the NY boarder [sic] bear [sic] Erie and they are hella scary. Daily I get ran off the berm of our completely wide enough road and today one asked me to t-bone it. I end this rant saying I don’t give a flying shit about those babies and I will gladly smash into a school bus.”

Judge P. Kevin Brobson, writing for the Commonwealth Court panel, noted the dearth of applicable state case law and relied on federal jurisprudence in determining whether Carr’s speech was constitutionally protected.

Under the free-speech analysis established by the U.S. Supreme Court’s 1968 ruling in Pickering v. Board of Education of Township High School District 205, Will County, Illinois, Brobson said the court had to determine first whether Carr spoke as a citizen on a matter of public concern in her Facebook comments. The commission said she did not, but Brobson disagreed.

Attorney Kyle Milliron of Duke Center, who represented Carr, told the justices that the factors to be considered in the balancing test favored Carr and did not prevent the department from providing services. He further disputed the department’s argument that the speech was not on an issue of public importance, and said that, if taken as a whole, the post dealt with the issue of problematic bus drivers.

PennDOT assistant counsel Nicholas Mertens, however, told the justices the Commonwealth Court erred by improperly applying the test and failed to properly weigh the public importance of the comments. The fact that she could be easily identified as a public employee, he said, also factored into the consideration.

According to Mertens, the fact that Carr did not identify herself in the post, but only in her profile bio, “ignored the totality of the circumstances.”

“The research was one click,” Mertens said.

Todd summed up the exchange between Mertens and Dougherty by saying the justices may need to focus on the definition of “content.”

“That’s something we’re going to have to work with,” Todd said.

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