It has become a familiar refrain: a teacher posts something inappropriate to his or her private Facebook account that results in being fired from his or her teaching job. The variations on this refrain are too numerous to list. The teachers are young, old, male, female and every age in between. They are probationary and nonprobationary. They post pictures of themselves with alcohol or drugs, they air inappropriate comments about students or staff, or they take Facebook friendships with students or parents a bit too far. Whatever the permutation, the outcome is almost universally the same: they lose their jobs.
Teachers often believe that the First Amendment’s protections extend to their speech in the private sphere. However, as courts have recently demonstrated, it is not that simple. More often than not, courts have concluded that teachers can be disciplined for their private social media activity. These holdings are rooted in the case of Pickering v. Board of Education, 391 U.S. 563 (1968). In Pickering, the defendant Board of Education fired one of its teachers after she wrote a letter to the local paper criticizing the Board’s allocation of funds. Though the United States Supreme Court held in favor of the teacher, in doing so it created a legal framework that courts have routinely employed to uphold teacher discipline for private online conduct.
Under the Pickering framework, courts first must determine the capacity in which the teacher is speaking. If she is speaking in her capacity as an employee, her speech is not entitled to First Amendment protection. If, on the other hand, she is speaking in her capacity as a private citizen, then courts focus on the content of the speech. If the speech is about a matter of public concern (e.g. the allocation of taxpayer funds), then the speech is entitled to constitutional protection that balances the government’s interest in efficiently carrying out the public’s interest against the teacher’s interest in speaking out. If the speech is not about a matter of public concern, then it is not entitled to constitutional protection.
Though Pickering predates the Internet and social media, it is the governing analysis that courts still apply today. First Amendment jurisprudence in this realm is largely fact-specific and, therefore, difficult to predict. However, teachers should expect that their private social media posts will be viewed by a wider public audience than just their immediate friends. This audience may include students, parents, fellow employees and administrators. Seemingly benign comments, pictures, or posts that are not about matters of public concern, may expose their authors to discipline, up to and including termination. For these reasons, teachers, other school employees and officials, should exercise caution in their private use of social media.
For more information on the legal implications of social media posts or how to set up legal guidelines for social media use for school district employees, please contact Kristin Edgar at [email protected] or 303-443-8010.
“Social Networking Nightmares,” by Mike Simpson, National Education Association
“5 teachers disciplined for Facebook postings,” by Ann Doss Helms, The Charlotte Observer
“Teachers’ saucy web profiles risk jobs,” by Jill Riepenhoff, The Columbus Dispatch
“When young teachers go wild on the web,” by Ian Shapira, The Washington Post
“Ruling goes against Barrow teacher who lost job over Facebook posting,” by David Ibata, Atlanta Journal-Constitution
“Court rules against teacher in MySpace ‘drunken pirate’ case,” by Brian Krebs, The Washington Post “Security Fix” blog