Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
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 Web.”
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. E-mail: [email protected].