Free expression is an essential guarantee of the First Amendment — the
freedom to speak and write as we will, without censorship by the government.
But the freedom to express oneself doesn’t necessarily provide a buffer
against the reaction to what is said or written. For public employees like
schoolteachers, that’s increasingly an issue in the Internet Age, when
off-campus postings easily reach the school community.
Example: A recent Washington Post story that reported on area teachers
who had placed personal material or photos on social-networking sites like
Facebook. The article is headlined, “When Young Teachers Go Wild on the
The story describes D.C.-area educators who are relatively young and who have
posted crude and potentially offensive comments or photos. Several teachers
quoted in the story said they expected the postings to remain essentially
private, or at most the province of a small group of friends who would
understand their sense of humor, satire or irony.
And, as one teacher in the story put it, her employer may be anxious about
the posted matter, but “my work and social lives are completely separate. I just
feel they shouldn't take it seriously. I am young. I just turned 22.”
The Post’s report might just pass as noting a titillating curiosity —
if not for the potential pitfalls it and other news reports highlight for public
school educators who might assume speech away from the workplace is protected by
the First Amendment from on-the-job consequences.
Legal protections for our speech are strongest for public employees when they
are speaking on matters of public concern — government policies or public safety
or political issues, as examples. In a landmark 1968 case, Pickering
v. Board of Education, the U.S. Supreme Court held that a public high
school teacher had a right to send to a newspaper a letter to the editor
critical of school-district spending on athletics rather than academics.
But the distinction and legal protection separating “citizen” from “employee”
isn’t always going to tilt in favor of the teacher. Courts in various states
have sided with administrators if the speech in question impairs discipline or
causes disruption in classrooms, or with co-workers or routine administrative
operations, or if it directly affects students. And in 2006, in Garcetti
v. Ceballos, the Supreme Court ruled that public employees have little
or no First Amendment protection for speech made as part of their official job
duties — in other words, when they are speaking on behalf of their employer.
In 2007, a Virginia teacher was fired after school officials learned of a
video posted on YouTube in which the teacher — masked to hide his identity —
demonstrated how to “paint” artwork with his backside. Administrators said a
controversy over the video was disrupting teaching. The teacher later reached a
financial settlement with the school district.
Just over a month ago, in Washington state, a federal district court said
that school officials did not violate the rights of a teacher whom they
transferred from a specialist position to a classroom job after a dispute over
her personal blog entries critical of a recent hiring by the school. The court’s
opinion said the teacher-blogger’s “self proclaimed role as a personality
reporter of school personnel” had no relation to a discussion of public issues
and would interfere with her job.
Potential speech limits on public employees are not limited to educators, or
to online video or text postings. In 2000, the Supreme Judicial Court of
Massachusetts ruled a state investigator could be fired for telling a racist
joke at a dinner honoring retiring public officials, because it could undermine
his agency’s relationship with clients and the community.
The Post story concludes with an anecdote about a teacher who said,
after learning her Web site could be publicly viewed, “I never thought about
parents and kids [seeing it] before.”
But it’s that Internet ease in which a once-momentary aside, or a personal
letter, or even a privately viewed video, can instantly reach a wider audience
that is posing new issues — and potential dangers — for those in public jobs who
choose to display the non-public sides of themselves.
Gene Policinski is vice president and executive director of the First
Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org.