TABLE OF CONTENTS I. INTRODUCTION 51 II.THE SUPREME COURT 54 A. Pickering and Connick 55 B. The Post-Connick Era 58 III. CONNICK: CONFLICT AND CRITICISM 62 A. Conflict Between Circuits 62 B. Criticism of Connick 65 IV. FEDERAL CASES INVOLVING INTERNET-BASED EMPLOYEE SPEECH 67 A. Circuit Courts 67 B. District Courts 73 V. PROPOSAL 80 A. The New Threshold Question 81 B. Is the Speech of Inherent Public Concern? 82 C. Private Concern Speech: Determining Capacity 83 D. The Pickering Balancing Questions 84 VI. CONCLUSION 85 TABLE 1: SUMMARY OF FEDERAL CASE LAW ON PUBLIC EMPLOYEES AND INTERNET SPEECH 87 TABLE 2: FRAMEWORK FOR ANALYSIS OF EDUCATOR SPEECH 90 I. INTRODUCTION
Keith Allison was a tutor at an elementary school in Green Local School District in Wayne County, Ohio. By all accounts, he was a high-performing employee, earning the best ranking possible on his end-of-year evaluation. (1) On August 19, 2014, as he was preparing for his second year as a tutor, he was summoned to meet with his principal and superintendent. (2) During the meeting, he was questioned about a recent post on his Facebook page that featured a photograph of calves confined in small crates on a local dairy farm. (3) Accompanying the photos, Allison had written a brief message criticizing the treatment of the calves and advocating for plant-based milks. (4) His superintendent advised him that there were a large number of dairy farmers in Wayne County and that teachers should not offend this constituency. (5) Allison was told that his contract had not been renewed and that he could work the remainder of the week, but at a reduced compensation level. (6) He filed suit with the support of the American Civil Liberties Union and People for the Ethical Treatment of Animals. (7) The school district eventually settled for back pay and legal expenses and reinstated Allison as a middle school tutor. (8)
Keith Allison's story is hardly unique. Many educators have found their careers interrupted due to seemingly innocuous online expression. In 2009, a high school teacher in Winder, Georgia, was forced to resign after school officials became aware of Facebook pictures from her European vacation that showed her holding wine and beer, even though she had not given students access to her page. (9) In 2012, a Manhattan school counselor was fired days short of gaining tenure after online photographs surfaced from her previous career as a lingerie model twenty years earlier. (10) In 2013, a girls basketball coach in Pocatella, Idaho, was fired after posting an "immoral" vacation picture that showed her in a swimsuit with her fiance, who had his hand resting on her bikini top. (11)
Public educators' social media posts, however, are not always innocuous. In some cases, an individual's social media speech may clearly provide evidence of a lack of fitness as an educator. Karen Fitzgibbons, a fourth grade teacher in the small west Texas district of Frenship, was terminated after she advocated through Facebook for the return of racial segregation. (12) Her post came in the wake of a Dallas area pool party at which a police officer was captured on video wrestling a teenage African-American girl to the ground and then pulling his weapon on a group of young African-American bystanders. (13) Upset over the subsequent resignation of the officer involved, Fitzgibbons blamed both the African-American children and their parents:
I guess that's what happens when you flunk out of school and have no education. I'm sure their parents are just as guilty for not knowing what their kids were doing; or knew it and didn't care. I'm almost to the point of wanting them all segregated on one side of town so they can hurt each other and leave the innocent people alone.... (14) In the 1968 case Pickering v. Board of Education, the Supreme Court officially extended conditional First Amendment free speech rights to public educators. (15) Pickering established that public employees have First Amendment rights as citizens to comment on matters of "public concern"; however, those rights must be balanced against the State's rights as an employer to efficiently manage the public services it provides. (16) In 1982, the Court narrowed the scope of public employee speech rights in Connick v. Myers, holding employee speech that addresses "private interests" does not merit First Amendment protection. (17) As of early 2017, the Court had not yet heard a case dealing with the social media expression of a public employee. (18) With no clear Supreme Court precedent, legal scholars have voiced concern that the public concern/private interest distinction in Connick could allow courts to unnecessarily limit teachers' rights regarding online expressive activity, even when that speech has no negative impact on the school environment. (19)
How can public school administrators reach legally and ethically defensible decisions in cases as widely divergent as Keith Allison and Karen Fitz-gibbons? How can they protect the efficacy of their school systems while still respecting the First Amendment rights of their employees? When can they take adverse employment action against educators on the basis of speech that is posted online, and under what circumstances is that speech protected? Does the Connick public concern requirement effectively remove all constitutional protection from public educators who are active on social media, irrespective of whether their speech is disruptive? This Article addresses these questions by examining the developing law regarding the free speech rights of public employees, with a focus on how the Connick public concern/private interest dichotomy has been applied to social media and other electronic speech. Part II reviews Supreme Court precedent, from Pickering and Connick through the Court's post-Connick decisions. Part III highlights circuit conflict and scholarly criticism associated with the public concern/private interest question introduced in Connick. Part IV analyzes recent federal cases dealing specifically with online speech of public employees. Finally, Part V concludes by proposing an analytical framework designed to enable school administrators to make legally defensible decisions that both protect institutional efficacy and advance public educators' First Amendment free speech rights.
THE SUPREME COURT
On multiple occasions, the Supreme Court has issued guidance on the issue of public employees and their First Amendment speech rights. This section will provide a review of that precedent in the following manner. First, it examines the two Court decisions that have provided the essential framework for examining the free speech claims of public employees over the last four decades: Pickering v. Board of Education (20) and Connick v. Myers. (21) Second, it focuses on the Court's subsequent attempts to apply the principles from Pickering and Connick.
Pickering and Connick
Walter Pickering was a public high school teacher who wrote to the editor of a local paper a letter that contained criticism of the school board's use of funds from a 1961 bond election. (22) He also suggested in his letter that the superintendent had used heavy-handed tactics to coerce teacher support of a failed referendum. (23) The school board, concluding that Pickering's claims were false and brought into question their "motives, honesty, integrity, truthfulness, responsibility and competence," terminated Pickering's employment. (24) Pickering challenged the action, alleging that it was illegal retaliation for the exercise of his First Amendment speech rights. (25)
The Court agreed. Writing for the majority, Justice Thurgood Marshall sought to strike an appropriate balance between the rights of "the teacher, as a citizen, in commenting on matters of public concern" and the "State, as an employer, in promoting the efficiency of the public services it performs through its employees." (26) In order for protected speech to justify a public school teacher's dismissal, Justice Marshall argued, the employer would have to demonstrate that the employee's expression somehow interfered with school operations, impeded the employee's ability to perform his job duties, or constituted a willful or reckless false statement. (27) As examples of expressive activities that might present permissible grounds for termination, Justice Marshall specifically cited speech that breached confidentiality or undermined superior/subordinate relationships. (28) Justice Marshall also reasoned that a public educator might sometimes engage in expression "so without foundation that it calls into question his fitness to perform his duties in the classroom." (29)
In applying its balancing test, the Court concluded there was no reason to believe Pickering's letter disrupted school district business or damaged his ability to effectively function as a teacher. (30) Although the board members had alleged that the letter had a deleterious effect on their professional reputations, no evidence supporting these allegations had been introduced at trial. (31) In fact, with the exception of the board members themselves, most in the community had greeted Pickering's letter with "massive apathy and total disbelief." (32) Pickering did not report directly to or even regularly interact with board members or the superintendent, so his speech did not interfere with working relationships. (33) In fact, though the letter may have upset the superintendent and board members, the majority found that it was inconsequential to Pickering's ability to perform his job or to the functioning of the school system in general. (34)
Fewer than fifteen years after granting limited First Amendment rights to public employees, the Court held that not all public employee expressive activities merit First Amendment protection. (35) Connick v. Myers arose out of an employment dispute in an urban district attorney's office. (36) Sheila Myers was an assistant...