The convergence of widespread social media use, and recent national social movements and events—including the MeToo movement, Black Lives Matter movement, and the COVID-19 pandemic—has led to a growing number of public school teachers and other government employees being disciplined for statements they make on their private social media. Here in Massachusetts, a teacher was fired after posting a diatribe against people living in poverty and the conversation about privilege. In Ohio, a teacher was fired after making a social media post criticizing police brutality against students. There has been significant attention paid to public university professors across the country, with institutions taking differing views of whether they can terminate professors for their online speech. In Texas, Collin College fired three professors for making political comments on social media and criticizing their institutions’ handlings of the COVID-19 pandemic. In Indiana, the University of Indiana said it could not fire a professor who wrote posts denigrating women and LGBTQ people. We have been hearing from more public school teachers around Massachusetts who are being investigated and sometimes disciplined for their private social media posts about political and social issues.
Freedom of speech is a fundamental American legal principle, and its protection is enshrined in the First Amendment to the U.S. Constitution. But its protection is not without limitation, especially for those who are employed by government entities. Public school teachers face an array of limitations on their speech, both in school and out of school, which can be difficult to navigate. In the wake of national events that significantly impacted schools, students and teachers, teachers are increasingly faced with difficult choices regarding their exercise of free speech on important topics. Often in an effort to avoid controversy, some school policies wrongly attempt to limit constitutionally protected speech by teachers.
It is essential that teachers, and any other government employees, know their rights—and the limitations of those rights—in order to engage in free speech without facing discipline or termination. Additionally, as government employers, school districts must understand the free speech protection afforded to their employees and must not impose a policy or enact discipline which limits constitutionally protected speech. This post reviews the basics of the law governing discipline because of employee speech.
The legal background
The Supreme Court “has frequently reaffirmed that speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” The Court has also recognized that “public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public.” Therefore, the First Amendment rightly protects teachers and other public employees from discipline or termination for speech on public issues.
Unfortunately for government employees, that protection is not absolute. In recognition of the unique situation where the government also acts as an employer, like in public schools, courts must consider both the First Amendment’s free speech protections and the government employer’s interest in “running an effective workplace.” As a result, not all speech by teachers is protected by the First Amendment. Instead, in some situations, speech can legally form the basis of disciplinary action or termination against a teacher. In all other situations, however, teacher speech is protected, and any public school teacher disciplined or terminated for protected speech has the right to pursue a legal cause of action against their employer.
What speech is protected?
There is a three-factor test to determine when government employees’ speech is protected:
- Is the speech a “matter of public concern”?
- Did the person speak as a citizen or as an employee?
- How does the interest of the employee, as a citizen weigh against the interest of the government, as an employer, in promoting the efficiency of the public services it performs through its employees?
A matter of public concern
Speech is on a “matter of public concern” if it relates to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest. Examples from recent cases include: questions regarding the amount and allocation of a school district or town department’s budget, sexual harassment by a police chief, the killing by police of a young black boy and subsequent national debate, union advocacy for improved working conditions in schools, and a school district’s response to and plan for handling the COVID-19 pandemic.
On the other hand, speech that relates to a primarily personal topic is not protected. Examples of common speech topics which are not on a matter of public concern—and therefore not protected by the First Amendment—include internal disagreements regarding leadership style and decisions, and personnel disputes within the workplace. When an employee complains about the particulars of their own employment situation, courts often find that that speech is not protected by the First Amendment.
Speaking as a citizen
Second, an employee speaks “as a citizen” when their speech is not made pursuant to their official job responsibilities. Whether or not someone is speaking in their official capacity or as a citizen is decided based on the ordinary scope of the employee’s duties and tasks. Whether speech was made pursuant to official job responsibilities typically depends on the context of and setting for the speech, and courts consider a variety of factors in determining whether speech was made as a citizen or as an employee.
For example, speaking while teaching a lesson in the classroom is part of a teacher’s ordinary duties, but posting on a personal social media account typically is not. Speech directly to a supervisor is often made as an employee, but speech to the local news or other outside individuals is often made as a citizen. Speech while physically at the workplace is more likely to be made as an employee, while speech elsewhere is more likely to be made as a citizen. Speech on the subject-matter of the speaker’s employment or which reveals information that the speaker learned only through their employment is likely made as employee. However, teacher speech is not necessarily made as an employee just because it focuses on a topic related to their school. Speech focusing on broader topics, like school policies, is more likely to be protected than speech focusing on issues related to an individual teacher’s classroom. This part of the law is a very fact-specific inquiry which can vary from case to case.
Balancing the government’s interest
Third, even where an employee spoke as a citizen on a matter of public concern, that employee’s interest in engaging in speech will be weighed against the employer’s interest in maintaining an effective workplace. This is another very fact-specific inquiry which often focuses on the value of the speech; the employee’s intent in speaking; the time, place, and manner of the speech; and whether the speech caused the employer to be concerned about problems in the workplace, like disharmony among coworkers or impaired performance of job responsibilities. Speech which was not self-interested and which causes minimal workplace disruption is more likely to be protected.
Harassment and bigotry
Hate speech is generally protected as free speech under the First Amendment. That does not mean, however, that public employees cannot be disciplined for engaging in hate speech. Speech by a public employee that is harassing, bigoted, or otherwise hateful might not be protected under the governing three-factor test.
Because the test is flexible and fact-specific, harassment or hate speech might lose its protected status in a variety of ways. For example, a court might conclude that speech which reflects hateful beliefs about another person is more akin to an interpersonal dispute than a matter of public concern, and thus that speech would not be protected. Additionally, courts often defer to a school’s concerns about workplace problems likely to be caused by teacher speech. A school’s interest in maintaining an efficient and functioning workplace will often outweigh a teacher’s interest in engaging in hateful or harassing speech, especially where the topic of that speech implicates students, parents, or other teachers. Speech that is productive and adds value to a discussion is more likely to be protected than speech that merely displays a harassing or hateful point of view toward a particular group.
Things to Consider
Many schools and school districts take an overly restrictive view of what their employees can say outside of the workplace. Schools that have social media policies that punish teachers for conduct that “reflects poorly upon the school district” likely impermissibly infringe on teacher’s rights. Similarly, districts that state that any time a teacher talks about “matters concerning [their] work [they] are speaking as an employee,” overstate their own legal authority to regulate teachers’ speech. Many important public issues concern teachers’ work—the education of students, and teachers are increasingly speaking out on those issues. School districts, like all government employers, must recognize that their employees are free to join the local and national conversations happening about important political topics.
If you are a government employee who has been disciplined because of something you said outside the workplace, contact our employment attorneys at (617) 742-6020.