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There have been several examples lately of public employees or, here, a public-school teacher—being disciplined or fired for things they have written or posted on social media. One such instance is a case in Waskom, Texas.
Regarding public-school teachers and social media, there are both protections and limitations to the right of free speech that can differ significantly from the scope of free speech and free expression we are accustomed to in our open society.
As we know, the 1st Amendment’s guarantee of free speech is an ironclad legal principle. However, that protection in the context of public employees is more limited.
On one hand, the U.S. Supreme Court has reaffirmed many times 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 made clear 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.
On the other hand, in public schools, where the government also acts as an employer, courts must balance both the First Amendment’s free speech protections as well as the government employer’s interest in “running an efficient, effective workplace” and pursuing educational goals.
So, how might a court analyze whether a public-school employee’s speech is protected? Three commonly used factors are:
1). Is the speech a matter of “public concern”?
2). Was the employee speaking as a citizen or as an employee?
3). How does the free speech interest of the employee as a citizen weigh against the interest of the government, as an employer, in promoting the efficiency of the public school it runs?
Here, the legal determination regarding whether the speech is protected would be highly fact intensive and fact specific.
What did this employee say or write? Was it personal and/or vindictive? or, no matter how harsh or vile, was the subject of the speech of public or national importance? Was the topic how Covid has been drastically mishandled and misstated, or how the 2020 Summer of Riots were ignored while Jan 6th was disingenuously hyped to high heaven.
If the employee insulted the principal of his school based upon a petty, personal grievance, it might not be protected speech, but if the employee criticized his employer because the principal doesn’t pay teachers enough money, that could well be protected speech because teacher pay is a matter of broad interest and public concern.
On the other hand, does the speech inhibit the normal operations of the school, i.e., is it highly disruptive; Is it personally disparaging or inflammatory? If so, it may not be protected speech.
The Waskom teacher, Patrick Durbin, reported a threat made by a student after two other students told him that a third student had threatened to shoot him; Durbin reported it to school authorities but then took to social media after he felt the administration did not handle the situation with any urgency or concern. After he spoke out on Tik Tok, he was placed on administrative leave.
This was the text of his post about being threatened to be shot by a student:
“Y’all wonder why teachers are getting out and quitting, it’s bad administration and people covering up for kids doing things to endanger other people’s lives; it’s parents who don’t discipline their kids” Durbin said in the video.
Durbin continued, saying part of him was ready to go back to a previous school district. “For the simple fact enough that I know the principals and the superintendent and the people that I worked with had my back and would protect us at all costs. I can’t say the same for this district.”
Let’s analyze it:
1). Gun violence and shootings in American schools are a huge issue of national importance/public concern.
2). Durbin was an employee but was speaking as a citizen given that his speech involved criticizing a school administration he felt was too slow in responding to a serious health and safety issue—the possibility of preventing a school shooting.
3). Here, in my view, the interest of the teacher in speaking out about a very real danger outweighs the school’s need for efficient operations.
I think this is protected speech and Mr. Durbin has correctly been reinstated.