How can public school administrators reach legally and ethically defensible decisions in cases as widely divergent as Keith Allison and Karen Fitzgibbons? How can they protect the efficacy of their school systems while still respecting the First Amendment rights of their employees? When can they take adverse employment action against educators on the basis of speech that is posted online, and under what circumstances is that speech protected? Does the Connick public concern requirement effectively remove all constitutional protection from public educators who are active on social media, irrespective of whether their speech is disruptive? This Article addresses these questions by examining the developing law regarding the free speech rights of public employees, with a focus on how the Connick public concern/private interest dichotomy has been applied to social media and other electronic speech. Part II reviews Supreme Court precedent, from Pickering and Connick through the Court’s post-Connick decisions. Part III highlights circuit conflict and scholarly criticism associated with the public concern/private interest question introduced in Connick. Part IV analyzes recent federal cases dealing specifically with online speech of public employees. Finally, Part V concludes by proposing an analytical framework designed to enable school administrators to make legally defensible decisions that both protect institutional efficacy and advance public educators’ First Amendment free speech rights
Watt Lesley Black Jr.,
When Teachers Go Viral: Balancing Institutional Efficacy Against the First Amendment Rights of Public Educators in the Age of Facebook,
82 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol82/iss1/7