Minnesota state agency must drop investigation of employee’s Facebook post

A Minnesota state employee’s job is on the line after more than 50 state lawmakers called on Gov. Tim Walz to order his termination over a Facebook post. But that post is protected by the First Amendment.

On July 13, Tyler Janke was heading home from a public pool with his family when his wife mentioned the news that a gunman had opened fire at a rally held by former President Donald Trump near Butler, Pennsylvania. Janke took out his phone and posted to his personal Facebook account, “Too bad they weren’t a better shot.” 

Janke’s profile settings allowed only his Facebook friends to view his posts. When he got home, he learned the full details of the incident — Trump and two attendees were injured and another was killed. Some of Janke’s Facebook friends criticized his post, and he decided to delete it.

That might have been the end of the story. But someone who saw the post took a screenshot, which spread online and quickly came to the attention of Janke’s employer, the Minnesota Department of Natural Resources. On July 16, the department issued a statement condemning the post as “reprehensible and inconsistent with the views and values of the Minnesota DNR.” The department further said it was “thoroughly examining the matter.” 

Later that month, six Minnesota lawmakers urged Gov. Walz, the current vice-presidential candidate for the Democratic Party, to condemn and fire Janke immediately. 

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In August, FIRE sent a letter calling on the department to refrain from investigating or disciplining Janke for his post, which the First Amendment protects. 

We explained that Americans do not lose their free speech rights when they take a job with the government. The First Amendment affords strong protection to public employees when, like Janke, they speak in their personal capacity on matters of public concern. 

Government employers don’t have to tolerate speech that significantly disrupts their ability to provide public services, but there is no evidence of such disruption in Janke’s case — just a brief flare-up on social media. The department’s public statement instead indicated it was investigating Janke simply because it found his Facebook post “reprehensible.” But government agencies can’t punish employees for non-disruptive, off-the-clock, non-work-related speech just because they disapprove of its message.

In a landmark 1987 case with notably similar facts, the Supreme Court held that a police department violated the First Amendment when it fired an employee who, after hearing that President Ronald Reagan had been shot, expressed contempt for his welfare policies by saying, “If they go for him again, I hope they get him.” 

And while the First Amendment doesn’t protect true threats or incitement, Janke’s remark doesn’t fall in either legal category. It wasn’t a serious expression of intent to physically harm a specific individual, and it wasn’t intended to and likely to cause immediate violence.

FIRE again calls on the Minnesota Department of Natural Resources to drop its investigation of Janke’s constitutionally protected speech.

Unfortunately, the investigation of Janke continues, perhaps due to mounting pressure from state lawmakers. On Sept. 30, the number of lawmakers pressing Gov. Walz to take action against Janke climbed to 56. 

Both Walz and the Department of Natural Resources must resist these demands to violate the First Amendment. 

Ironically, the legislators are repeatedly drawing public attention to what they claim is “dangerous and inflammatory rhetoric” rather than letting it fade into obscurity after Janke deleted his post.

A number of Americans found themselves in trouble this summer for expressing approval or making light of the attempt on Trump’s life. Unsurprisingly, many find these comments distasteful or even repugnant. But freedom of speech disappears the moment we allow exceptions for speech that some, many, or even most find personally offensive. As FIRE said previously:

The violence at Trump’s rally near Butler, Pennsylvania, was deeply unsettling, rightly evoking widespread outrage and condemnation. It was an affront to everything American democracy stands for — including our national commitment to resolve our differences peacefully through debate and dialogue. That’s why, in these moments, it’s more important than ever to uphold the values that define our free society, including freedom of speech. That’s especially true when the temptation to punish people for offensive or disturbing statements can feel overwhelming, urgent, and even righteous.

FIRE again calls on the Minnesota Department of Natural Resources to drop its investigation of Janke’s constitutionally protected speech.

FIRE defends the individual rights of all Americans to free speech and free thought — no matter their views. FIRE’s proven approach to advocacy has vindicated the rights of thousands of Americans through targeted media campaigns, correspondence with officials, open records requests, litigation, and other advocacy tactics. If you think your rights have been violated, submit a case to FIRE today.