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Cyberspeak No Evil

By Mike Simpson

Want to get fired from your first teaching job? Don’t read this article. Seriously. Just click on to something else. There’s nothing to see here. Move along....

First, let’s debunk the free speech myth: Many teachers believe they have the absolute First Amendment right to post anything they want on social networking sites, including party pix and diatribes about the boss. After all, they’re on their own time and using their own resources.

Sadly, the courts say otherwise.

Thanks to Facebook and MySpace, what used to be private is now very public. And that’s the problem, particularly for young teachers: Some seem oblivious to the devastating consequences of posting really stupid things in cyberspace.

The exploding popularity of these sites has engendered a prurient interest in teachers’ “private” lives by both school administrators and the media. Newspapers across the country have begun trolling social networking sites for embarrassing and titillating postings by local teachers. And there’s a treasure trove of material to be mined:

• The Charlotte Observer reported that an afterschool staffer from Charlotte was fired for his Facebook comment that he likes “chillin’ wit my niggas” and a “suggestive exchange” with a female friend. Two probationary teachers faced termination for their Facebook musings that “I’m feeling pissed because I hate my students,” and I’m “teaching in the most ghetto school in Charlotte.”
• The Columbus (Ohio) Dispatch ran an expose# entitled, “Teachers’ Saucy Web Profiles Risk Jobs.” One 25-year-old female bragged on her MySpace site about being “sexy” and “an aggressive freak in bed.” Another confessed that she recently got drunk, took drugs, went skinny-dipping, and got married.
• The Washington Post published a front page “investigative” piece entitled “When Young Teachers Go Wild on the Web,” quoting one DC teacher’s Facebook page: “Teaching in the DC Public Schools—Lesson #1: Don’t smoke crack while pregnant.” A special ed teacher wrote on her page to a student, “You’re a retard, but I love you,” and posted a photo of herself “sleeping” with a bottle of tequila.
• A San Antonio newspaper reported that college student “Mahka” posted pictures of herself in various stages of drunkenness with the catchy caption, “Can U say wasted?” She also wrote: “Drinking and partying is my life. I’m gonna be a high school English teacher one day.”

Really? You think so?

First Amendment 101

Until they acquire tenure, most beginning teachers can be nonrenewed for no reason at all. They’re not entitled to know why or to have a due process hearing. The only caveat is that they can’t be let go for a discriminatory reason or in retaliation for free speech activities.

Without going into the gory details, teacher free speech rights are fairly limited: their speech is protected only if they speak out as citizens on “matters of public concern” and their speech doesn’t disrupt the school.

In the seminal Pickering v. Board of Education case, the Supreme Court held that it’s not a First Amendment violation to dismiss probationary teachers for what they say or write, if their speech involves merely personal things (i.e. doesn’t address broader social/political issues of the day), or if the speech might disturb the workplace.

Tenured teachers, by contrast, have far greater job security than probationary teachers: they can’t be fired except for “just cause,” and they don’t need to rely on the First Amendment for protection.

Pickering in Cyberspace

To date, there have been only three court cases involving teachers who claimed that their First Amendment rights were violated by being punished because of their postings on social networking sites. The teachers lost every case.

• Connecticut teacher Jeffrey Spanierman was fired because of two cyber conversations with students on his MySpace page. In one posting, he teased a student about his girlfriend, and the student responded, “dont be jealous cause you can’t get any lol:)” Spanierman replied: “What makes you think I want any? I'm not jealous. I just like to have fun and goof on you guys. If you don't like it. Kiss my brass! LMAO.” He also jokingly threatened another student with lifelong detention for calling him “sir.” Pretty mild stuff, really.
  
  But a federal court ruled that Spanierman’s termination didn’t violate the First Amendment because his speech “was likely to disrupt school activities.” The court faulted the teacher for failing “to maintain a professional, respectful association with students” and for communicating with students “as if he were their peer, not their teacher.” Such conduct, “could very well disrupt the learning atmosphere of a school,” the court said.
  
  
• Tara Richardson was a mentor for beginning teachers who sued the Central Kitsap (Washington) School District claiming that she was demoted because of comments she posted on a personal blog. She described one administrator as “ a smug know-it-all creep” who has “a reputation of crapping on secretaries..”
  
  Last June, a federal appeals court rejected her First Amendment argument, finding that her nasty, personal comments interfered with her job because they “fatally undermined her ability to enter into confidential and trusting mentor relationships” with beginning teachers.
  
  
• And then there’s the sad tale of Pennsylvania college senior Stacey Snyder who was dismissed from her student teaching position because of “unprofessional” postings on her MySpace site, which she urged her students to visit. Her site included comments criticizing her supervisor and a photograph of her wearing a pirate hat and drinking from a plastic cup with the caption “drunken pirate.”

Because she did not complete her student-teaching practicum, Snyder was forced to graduate with a degree in English instead of Education. The lack of student-teaching experience also prevented her from applying for a Pennsylvania teaching certificate.

Snyder sued, but a federal court found no First Amendment violation. Applying the Pickering case, the court ruled that her MySpace postings dealt only with purely personal matters, not issues of public concern.

The lesson from the Snyder case is this: Unprofessional and inappropriate Internet postings by college students can be used to prevent them from entering the teaching profession. Seriously.

Make no mistake: Administrators are catching on and checking up. The Washington Post reported about a Missouri superintendent who, during interviews, insists that job applicants show him their Facebook or MySpace page.

So, how would you fare in that situation? If you’re not sure, show your Facebook page to your mom. If she’s got any concerns or problems, then so do you.

Michael D. Simpson
NEA Office of General Counsel

Michael Simpson is the Assistant General Counsel of the NEA and specializes in the First Amendment to the Constitution.