TEACHER FREE SPEECH AND SOCIAL MEDIA - PA Career Tech · 2014-10-01 · © 2013 McNees Wallace &...

© 2013 McNees Wallace & Nurick LLC

TEACHER FREE SPEECH AND

SOCIAL MEDIA

Kimberly M. Colonna September 26, 2014

PACTA Workshop


Social Media Use

Social Media

Users 72%

Non-users 28%

, 0 , 0


TYPICAL SCENARIO

Employee engages in speech

Employee is disciplined Employee claims the discipline was

retaliation for exercising free speech rights


HISTORICAL FOUNDATION

Pickering, a public school teacher, wrote a letter to the newspaper editor criticizing a proposed tax increase that was earmarked to build schools and criticizing school funds used for athletics. He was fired.


PICKERING - LIMITS OF FREE SPEECH

1. Speech must involve a matter of public concern

2. Employee’s interest in making the speech must outweigh the employer’s concern


2006 DEVELOPMENT

Ceballos, an assistant DA wrote a memo to his supervisor stating that an affidavit supporting a search warrant was inaccurate. He recommended that criminal charges based upon the search be dismissed. He was reassigned and denied a promotion.


3-STEP TEST

1. Speech can not be made in official capacity.

2. Speech must involve a matter of public concern 3. Employee’s interest in making the speech must outweigh the employer’s concern


(STEP 1) OFFICIAL CAPACITY SPEECH

In-class conduct is not protected speech.

o Who may teach o What may be taught o How it shall be taught o Who may be admitted to study


(STEP 2) PUBLIC CONCERN OR NOT?

Consider the ROLE of the Speaker: Employee = not public concern Citizen = public concern


(STEP 2) PUBLIC CONCERN OR NOT?

How is the speaker’s role determined?

• Content = what?

• Form = where and how?

• Context = why?


(STEP 3) BALANCING INTERESTS

Right to make the speech v.

Disruption of workplace Inability to perform job Undermining leadership Distraction of other employees


EXAMPLE #1

Child protective services worker posts comments on her Facebook page stating her opinion that stricter rules should apply on the use of food stamps. She also posted comments criticizing state tax refunds paid persons receiving public assistance benefits. She was fired.

DID SPEECH DISRUPT WORKPLACE?


EXAMPLE #1

Child protective services worker posts comments on her Facebook page stating her opinion that stricter rules should apply on the use of food stamps. She also posted comments criticizing state tax refunds paid persons receiving public assistance benefits. She was fired.


EXAMPLE #2

Police Officer posts comments on her Facebook page criticizing Chief’s refusal to use department funds to send officers to the funeral of a police officer who was killed in line of duty in another city. Officer was fired.

PUBLIC CONCERN OR NOT?


EXAMPLE #2

Police Officer posts comments on her Facebook page criticizing Chief’s refusal to use department funds to send officers to the funeral of a police officer who was killed in line of duty in another city. Officer was fired.

Firing of Officer did NOT violate 1st Amendment.


EXAMPLE #3 Teacher blogged these comments about a new teacher she was to mentor:

“He comes across as a smug, know-it-all creep” and “that’s the nicest thing I can say about him.” She was demoted. The Demotion was upheld by the courts.

WHY?


EXAMPLE #3 Teacher blogged these comments about a new teacher she was to mentor:

“He comes across as a smug, know-it-all creep” and “that’s the nicest thing I can say about him.” She was demoted.


TIPS FOR DEALING WITH EMPLOYEE’S SOCIAL MEDIA

Direct employees not to reference their social media pages while performing their official duties.

Warn employees that if their social

media activity disrupts the school, they can be terminated – 1st Amendment is not a protection.


TIPS FOR DEALING WITH EMPLOYEE’S SOCIAL MEDIA

Be wary of disciplining employees where social media comment addresses a matter of public concern.

Be wary of overly-broad policies that restrict free speech beyond the scope of the 3-step test.


QUESTIONS?

TEACHER FREE SPEECH AND SOCIAL MEDIA - PA Career Tech · 2014-10-01 · © 2013 McNees Wallace &...

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