The advent of social media places an additional burden on schools and school districts to monitor how teachers utilize these new methods of public communication.
It has been held that “[t]eachers are public employees who hold positions demanding public trust and in such positions they teach, inform and mold habits and attitudes, and influence the opinions of their pupils. Pupils learn, therefore, not only what they are taught by their teachers, but what they see, hear, experience, and learn about their teacher. When a teacher violates the public trust placed in him, he/she must expect dismissal or other severe penalty.” – The Matter of Tenure Hearing of Ernest Tordo, School District of the Township of Jackson
The United States Supreme Court has held that “a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public.” City of San Diego v. Roe, 543 U.S. 77, 80, (2004). The protections of the First Amendment have never been absolute, . . . the right of free expression must be balanced with a competing governmental interest. Karins, 152 N.J. at 547.
To reconcile a teacher’s right to free speech, and the District’s right to protect its legitimate interest in performing its essential mission, the Supreme Court has established a balancing test. Pickering v. Bd. of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); City of San Diego, supra, 543 U.S. at 80, 125 S. Ct. at 523, 160 L. Ed. 2d at 414-15. The initial inquiry is whether an employee’s speech may be “fairly characterized as constituting speech on a matter of public concern.” Karins, supra, 152 N.J. at 549 (citing Connick v. Meyers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708, 719 (1983)). Once the public-interest prong of the Pickering standard has been satisfied, a court must then balance the employee’s interest in free speech against the “government’s interest in the effective and efficient fulfillment of its responsibilities to the public.” Ibid.
Berry, Sahradnik Kotzas & Benson recently represented a school district in a case in which a teacher referred his students to his Facebook and YouTube videos featuring pictures of obese women in underwear as well as one of his wife dressed in a bra. The court rejected the teacher’s argument that he was doing so to “loosen up” his students. Similarly, another court ruled in a situation where a teacher was terminated for creating a MySpace page containing pictures of naked men with inappropriate comments underneath. The court stated, “It is reasonable for the District to expect the Plaintiff, a teacher with supervisory authority over students to maintain a professional, respectful association with those students … Such conduct could very well disrupt the learning atmosphere of a school, which sufficiently outweighs the value of Plaintiff’s MySpace speech.”
Teachers and the institutions that supervise them would be wise to take note.