Social Media and Teachers’ First Amendment Rights

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New York City guidance school counselor Tiffani Webb was fired from her job at Murry Bergtraum High School after racy photos of her in lingerie showed up on the Internet. Although this is only the latest in a recent string of educators losing their jobs for online behavior, Webb’s situation is slightly different; the pictures were taken over seventeen years ago, before she became a government employee. Additionally, as the Huffington Post reports, she disclosed her previous modeling career before she was hired by the Department of Education twelve years ago. She had been investigated three times by the DoE, but due to her excellent reviews and track record had always been cleared to work again. In December 2011, just days before she was to be tenured, Webb was fired for “conduct unbecoming” of a DoE employee. A three person panel cited the fact that “[t]he inappropriate photos were a accessible to impressionable adolescents,” in dismissing Webb. She is now suing the Department of Education for wrongful termination, sex discrimination, and violation of her First Amendment rights.

With the rise of social media’s prominence in our society, teacher’s personal lives have been put under a microscope. Educators across the United States have been fired for online behavior. Some of the behavior makes a better case for termination. In Pennsylvania, a teacher was fired (and then later reinstated) for divisive, insulting blog posts about her students. In her personal blog she called her students “rude, disengaged, lazy whiners,” “frightfully dim,” and one student “[j]ust as bad as his sibling.” Other online behavior, however, such as when 24-year-old Ashley Payne was pressured into resigning after posting a picture of herself on vacation holding a beer, raises more eyebrows within the community. A Georgia Superior Court Judge ruled against Payne when she sued to be re-instated.

There is no doctrine governing acceptable online behavior for teachers. Courts are left to decide on a case-by-case basis what is or is not legal grounds for termination. Under Pickering v. Board of Education (391 U.S. 563 (1968)), the Supreme Court held that in the absence of proof of a teacher knowingly spreading false information, he or she has the right to speak out on issues of “public importance” without worrying about termination. Pickering was later distinguished by Garcetti v. Ceballos (547 U.S. 410 (2006)), which held, in a 5-4 opinion by Justice Anthony Kennedy, that public employee statements made pursuant to their employment are given no First Amendment protections; in order for public employee statements to receive protection, statements must be made in their role as private citizens. Courts have attempted to parse these decisions into modern doctrine governing online behavior, but little progress has been made.

Teachers are striving to find a balance between participating fully in social media and censoring their activities as to not offend students or employers. The prominence of social media has left many citizens, not just teachers or public employees, wondering for how long your past will be able to haunt you and affect your future. In this day and age when everything is documented, it seems as if no one can afford to make a mistake.

While the exact nature of permissible teacher online behavior has yet to be determined, it is clear that there must be guidelines outlining acceptable online activities. The issues emanating from social media have taken the courts into new, unprecedented territory. How courts handle this issue under the umbrella of First Amendment protections is surely to be a prominent issue in the near future.

Posted by Samantha L. Thompson on Mon. October 22, 2012 8:53 AM
Categories: Social Media

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