Tuesday, September 15, 2015

Tip of the Day: If You Are a Teacher, Don't Go Online and Call Your Student a "Lazy A**hole."

Sounds like self-evident advice, no? Well, to Natalie Munroe, it wasn't. 

Munroe was an English teacher at Central Bucks School District who, in 2009, began writing her own personal blog, which was intended to be maintained primarily for her friends, not the public at large. 

In 2010, Munroe took to her blog and wrote an article in which she identified a list of suggested comments she believed teachers should include on their students' report cards in order to more accurately reflect what those teachers "really want to say to [those] parents." Her suggestions included comments such as:"has no business being in Honors," "dunderhead," "rat-like," "liar and cheater," "unable to think for himself," "tactless," and "lazy asshole." 

A few months later, Munroe composed another blog post where—in the midst of also complaining about the temperature her classroom was kept at and which musical artists she found loathsome—she griped about "an obnoxious kid" in her class, and about another child whom she referred to as a "jerk," for missing an assignment after being out of school for 3 days because his family went on vacation.

The content of Munroe's student-related blog postings came to light following an investigation by a local newspaper. After word of Munroe's blog posts made the rounds through the student body, the parents, and the administration, Munroe was eventually fired. 

Big shocker. 

Following her unceremonious dumping by the School District (some might call it "karma"), Munroe sued, arguing that the School District had unlawfully violated her First Amendment right to free speech by firing her because of the contents in her blog

The Third Circuit Court of Appeals recently disagreed, holding that the First Amendment provided Munroe no protection from termination due to the contents of her blog.

Unlike private-sector workers, employees of a public employer (like a school district) continue to enjoy a First Amendment right to free speech, and do not surrender that right simply because they choose to work for the government. That right, however, is not absolute. As an employer, the government has legitimate interests in maintaining the efficient administration of the workplace, and ensuring that public employee speech does not interfere with the performance of employee job functions. So, a public employee's speech only finds protection under the First Amendment if it: (1) involves a matter of public—as opposed to private—concern; and (2) the government lacks an adequate justification for treating the employee differently than the general public based upon its needs as a employer. 

In its decision, the Third Circuit first found that the contents of Munroe's blog failed to qualify as speech involving a public concern. Even though portions of her blog discussed the education of her students and the operations of the Central Bucks School District in general, the majority of its contents—when viewed as a whole—addressed merely private issues, such as what types of musical artists Munroe disliked, pie recipes, and movie reviews. Hardly the stuff of vigorous public debate. Moreover, even if Munroe's blog contents had satisfied the "public concern" requirement, the Court held that her First Amendment retaliation claim still failed, inasmuch as the School District had established that the notoriety garnered by Munroe's now-infamous online rantings had disrupted the work of both the student body and the administration. As the Court put it: "Munroe's various expressions of hostility and disgust against her students [disrupted] her duties as a high school teacher and the functioning of the School District." Because the Court determined that Munroe could not satisfy either element identified above, it held that she enjoyed no First Amendment protection from termination due to the contents of her blog.

The take-away for governmental employers here is that while claims of First Amendment protection by public employees are never cut-and-dry, speech that may appear on its face to touch on a matter of public concern does not automatically entitle the speaker to constitutional job security, nor does it eliminate any disciplinary recourse by the employer. 

The moral of Munroe's story for employees (whether public or private) is: be extra, extra careful about what you put online, even if what you post is only intended for a selective audience. The Internet is not "private" by any stretch of the imagination, even if you label something as so. Basically, if someone other than you can read what you wrote, then chances are your employer might read it some day, as well. So, if you cannot resist the urge or temptation to write something online, edit it thoroughly, and err on the side of omission rather than inclusion. You may also want to take the time to have someone else read it before you click "post," just to be sure.

Unless, of course, you are just a "lazy asshole."