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The Pennsylvania Supreme Court has agreed to review a ruling by the Commonwealth Court that the Pennsylvania Department of Transportation should not have fired an employee after she complained on Facebook about the school bus drivers in her area and said she “will gladly smash into a school bus.”

The justices granted allocatur in the case in a one-page Jan. 8 order.

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.

“Although the sentiments within Carr's posts relating to purposefully colliding with a school bus are reprehensible, her original post and subsequent responses show an attempt to discuss her frustrations toward the poor driving habits of an individual entrusted to safely transport schoolchildren,” he said. ”After posting her comment, Carr can do very little to control how people will react. Carr's subsequent posts defending her position of crashing into a bus are largely a product of the Facebook group's reaction to her original statement.”

“Had the other members of this Facebook group agreed with Carr that school bus drivers are unsafe at times and proceeded to engage in a substantive discussion to that end, there would be little question that her speech touched on a matter of public concern,” Brobson continued. “Instead, the commission judged Carr on the public's reaction to her post, as opposed to the substance of the speech itself.”

The second phase of the Commonwealth Court's analysis required a determination, pursuant to the state Supreme Court's 1983 ruling in Sacks v. Department of Public Welfare, as to whether Carr's interest in engaging in protected speech outweighed PennDOT's countervailing interests.

PennDOT argued that it had reason to believe, based on Carr's Facebook comments, that she was “'capable of violent behavior'” and that Carr's comments threatened to erode the public's trust in the agency. The commission agreed.

But Brobson called the agency's characterization of Carr and prediction of future harm “a gross extrapolation of the content of Carr's comments.”

“Despite the incendiary verbiage Carr used, the main thrust of her remarks centered on the fact that a bus driver consistently engaged in dangerous driving habits, thus necessitating Carr to take evasive maneuvers in response,” Brobson said. “Carr's comments served as a verbal manifestation of her frustrations in having to do so. Any resulting automobile accident would first be dependent on the bus driver's failure to drive his vehicle on the proper side of the road.”

Brobson also said there was no evidence that Carr's Facebook comments would impair her ability to perform her job duties or interfere with essential and close working relationships.

And finally, Brobson noted that Carr's posts were made while she was off-duty and at home.

“After a thorough review of the record and a conscientious analysis of the factors articulated by the United States Supreme Court, we conclude that the department's generalized interest in the safety of the traveling public does not outweigh Carr's specific interest in commenting on the safety of a particular bus driver,” Brobson said. “While Carr's comments are undoubtedly inappropriate, such comments still receive protection under the First Amendment. With the exception of a speculative prediction of future harm, the department put forward no concrete evidence of tangible harm resulting from Carr's speech.”

Brobson was joined on the panel by Judge Ellen Ceisler and Senior Judge Dan Pellegrini.

In its Jan. 8 order, the Supreme Court agreed to hear arguments on three issues:

“(1) Is the Commonwealth Court's decision in conflict with the U.S. Supreme Court's rulings in Pickering … and its progeny, which allow a government employer to terminate an employee on the basis of their speech, even when it touches upon a matter of public concern, so long as the employer can demonstrate that an adverse effect could be reasonably foreseen?

(2) Did the Commonwealth Court err as a matter of law by failing to give sufficient weight to the public importance, or lack thereof, of Carr's Facebook comments, as required by Pickering and its progeny?

(3) Did the Commonwealth Court err as a matter of law by failing to give sufficient weight to the public importance, or lack thereof, of Carr's Facebook comments, as required by the Pennsylvania Supreme Court in Sacks?”

Counsel for Carr, Kyle Milliron of Duke Center, could not be reached for comment. A PennDOT spokesman also could not be reached.