Jeff Kaufman on Social Media and the First Amendment

In depth: Are off-duty social network communications by teachers protected by the First Amendment?

Posted on December 7, 2013

Yes, but limited. It was inevitable. As our means of communication expanded and our ability to communicate with ever increasing numbers of recipients so have school officials and the Courts have had to deal with both the content and mode of communication. Additionally as the conduct sought to regulated stems from teacher off-duty behavior, school districts have increasing disciplined teachers for communications they have made far from the classroom.

FREE SPEECH

Teachers have historically been subject to strict rules about in school behavior and while Tinker’s protection has applied to teachers’ free speech rights, for the most part, out of school speech was treated much differently.

We first start with Pickering v. Board in 1968. Marvin Pickering, a teacher, wrote a letter to the local newspaper in which he criticized what he characterized as the Board of Education’s large allocation of funds to the high school’s athletic programs, and the Board and Superintendent’s failure to inform taxpayers why they wanted to raise taxes. The Supreme Court, with Justice Marshall writing for the majority, decided that Pickering had commented on a matter of public concern, but focused much of its analysis on the truth or falsity of Pickering’s communication. What exactly would constitute a true “matter of public concern” was incompletely defined. However, the Court made clear that in addition to the topic of Pickering’s speech, an important point in his favor was that his letter to the newspaper was not directed toward anyone with whom he came into daily working contact, nor did the content of the letter in any way impair Pickering’s close working relationship with his immediate supervisor. In addition, the Court also noted that Pickering’s letter did not cause controversy in the community.

The Pickering test was further defined in a subsequent decision, Mt. Healthy City School Dist. Bd. of Educ. v. Doyle. Unlike Pickering, Doyle involved a teacher discharge for alleged protected speech.

Justice Rehnquist writing for the majority considered the facts surrounding the dismissal of Fred Doyle, an untenured teacher in the Mt. Healthy City School District. Stating that the issue of tenure becomes irrelevant when constitutional violations are alleged, and that in constitutional issues untenured teachers are protected to the same extent as tenured teachers,  the court nevertheless vacated the decisions of the lower courts that called for Doyle’s reinstatement and remanded the controversy.

Doyle had spoke about a new dress code for teachers on a local radio station. A month later the district superintendent recommended to the Board that Doyle not be rehired, and the Board concurred, noting Doyle’s “lack of tact in handling professional matters” and his report to the radio station, as well specifically mentioning an obscene gesture Doyle had made to two female students.

The Court refused to reverse the Board’s decision not to rehire Doyle. Stating that even if protected conduct played a “substantial’ or otherwise” part in a teacher’s dismissal, if the same decision would have been reached notwithstanding that conduct, the decision not to rehire was justified. If that were not the case, the majority reasoned, an employee’s act of engaging in protected conduct would prevent the employer from assessing his day–to–day professional conduct, and place the employee in a better position than he would have otherwise been.

In the Mt. Healthy decision the Court added a two–step process to the Pickering balancing test. First, if an employer dismisses or fails to rehire an employee because of his expressive conduct, the employee must show that constitutionally protected conduct was a substantial or motivating factor in the negative employment decision, and second, the burden then falls on the employer to show that it would have made the same decision even in the absence of the protected conduct.

The modified Pickering two step test went under close examination in Connick v. Myers where a 5-4 split upheld the involuntary transfer of an assistant district attorney’s dissemination of a questionnaire her supervisors found disruptive to not be a matter of public concern.

In another 5-4 decision the Supreme Court announced in Garcetti v. Ceballos that an Assistant District Attorney who wrote a memo to his supervisors that there were legal problems with a prosecution and then he testified on behalf of the defense faced retaliatory employment actions including reassignment and denial of promotion was denied redress after the lower court applied the matter of public concern and modified Pickering test.

The Garcetti court wrote, “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Online Speech

In the seven years since Garcetti lower courts have had to grapple with an increasing number off duty, online speech of public employees, especially teachers. In Spanierman v. Hughes  a Connecticut high school English teacher who posted a MySpace profile indicating he was “Mr. Spiderman” and communicated with students was ultimately terminated. Despite his claims of constitutionally protected speech the court upheld the School District’s decision finding that the teacher’s actions were potentially disruptive.

A middle school dean in San Diego posted an advertisement on Craigslist for “men seeking men” for sexual purposes. The ad showed photos of the dean and graphic descriptions of his sexual preferences. After the San Diego Unified School District dismissed him he won reinstatement through the California Commission on Professional Competence. His win was short-lived, however, when the District sought and won the right to dismiss him in Court. In San Diego Unified School Dist. v. Commission on Professional Competence the Court found that the pornographic nature of the ad interfered with his ability to serve as a role model in school.

Finally a 15 year unblemished record helped to prevent a Brooklyn elementary school teacher from being dismissed for posting derogatory comments about her students on Facebook shortly after a student drowned on a school trip. While the arbitrator dismissed the teacher from employment an appeal to both New York’s Supreme Court and the Appellate Division in Rubino v. City of New York resulted in the teacher being able to keep her job with a fine. The court, using the Pell standard, found that the teacher’s conduct did not warrant dismissal and that this was a single lapse of judgment.

It is unclear where this litigation is headed. Clearly some courts are willing to deal with the matter using free speech analysis while others will not. In either case there is little doubt that the increased amount and availability of social media will cause additional cases to be brought.