Following Charlie Kirk’s assassination last week, numerous public school teachers took to social media not to condemn the horrific act of violence, but to laud it or otherwise denigrate Kirk and his views. Matt Kargol, an art teacher at Oskaloosa High School in Iowa, reportedly posted “1 Nazi down” on his personal Facebook account. Kargol was placed on administrative leave. Commenting about the post and others like it, Iowa House Speaker Pat Grassley said he’d “been made aware of social media posts by teachers in Iowa praising the assassination of Charlie Kirk.”
Wynne Boliek, a teacher at Southside High School in Greenville, South Carolina, reportedly posted on his Facebook account: “Thoughts and prayers to his children but IMHO [in my humble opinion] America became greater today. There I said it.” The statement “one of the top five Trump surrogates. One less evil person on this planet” allegedly was posted on the Facebook account of Kelly Brock-Sanchez, a teacher at Ridgeview Elementary School in Orange Park, Florida. The second and third-grade instructor reportedly posted other disparaging comments, including “this may not be the obituary we were hoping to wake up to, but this is a close second for me.”
Does the First Amendment’s guarantee of free speech against government censorship protect public school teachers from job termination or suspension when they post such comments online, on their own time, and not pursuant to job duties? The answer largely depends on: (1) what specifically a teacher said; (2) whether a court deems the post to be about a matter of public interest or concern; and (3) whether the post includes a statement that could interfere with or disrupt a public school’s ability to effectively and efficiently teach students because some would feel unwelcome or uncomfortable taking a class with the teacher. In short, public school teachers possess some First Amendment speech rights, but those rights are not absolute.
To determine if a public school teacher’s post is constitutionally protected, courts would typically apply the public-employee speech rights doctrine established by the US Supreme Court in a series of opinions highlighted by Pickering v. Board of Education (1968), Connick v. Myers (1983), Garcetti v. Ceballos (2006), and Lane v. Franks (2014). It’s a framework that correctly has been called “easy to describe” but “difficult to apply.”
The applicational difficulty arises largely because the outcome often hinges on a rather subjective balancing test that weighs an employee’s interest in speaking out in a private-citizen capacity about a matter of public concern against “the employer’s interest in an efficient, disruption-free workplace.” The New York Civil Liberties Union notes on its website that
If you post as a private individual about current events, your interest in exercising your right to free speech is weighed against your employer’s interest in preventing disruption. Courts in New York have typically believed employers’ claims that employee speech was likely to be disruptive.
The National Education Association similarly observes that
Public employers may sometimes limit educators’ speech because it is too disruptive or it is disrespectful. This may be true even when the educators are not at work and are speaking as private citizens on matters of public interest. Speech may be too disruptive when it provokes protests, complaints from students and their families, and negative attention from the broader community. Disrespectful speech is more likely to be disruptive than respectful speech.
The fact that public school teachers don’t receive absolute First Amendment protection to say whatever they want online, on their own time, and about matters of public concern makes perfect sense. Justice Anthony Kennedy explained for the Court in Garcetti that
When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. . . . Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services. . . . When [public employees] speak out, they can . . . impair the proper performance of governmental functions.
Just as a public school teacher who posts racist remarks about the intelligence of Black people on his personal X account will significantly impair his (and his school’s) ability to teach Black students because he has created a hostile learning environment, so too will a teacher’s post on Facebook along the lines of Charlie Kirk “deserved it” impair that teacher’s (and his school’s) ability to effectively educate students who supported Kirk or who simply don’t believe people deserve to die because of their provocative opinions.
One final point: When public school teachers speak pursuant to their official duties––teaching, coaching, advising, and grading while on the job––they generally don’t have First Amendment rights. They’re paid to deliver the government’s curriculum, not personal opinions.
The post Lessons from a Tragedy: Public School Teachers’ Online Speech Rights Aren’t Absolute and That’s a Good Thing appeared first on American Enterprise Institute – AEI.
