Hey, Teach - Got Free Speech?

Hey, Teach - Got Free Speech? 1st Amendment Freedoms, Teachers and Social Media By: Raymond Cole, Sadye Halpin, Erich Kramer and Lori Pruyne

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Social Media Student/ Teacher Interaction

Pickering v. BOE • Teacher fired for writing letter to BOE • US Supreme Court found for the teacher • Established “balancing test: interests of employer vs. public employee’s free speech rights • Speech receives Constitutional protection if it’s a “matter of public concern.” Free Speech and Public Employees: Pickering v. BOE

Teachers Who Post Statements About Students Case example: Rubino v. City of New York Social Media Site: Facebook

A 15-year veteran teacher posts on Facebook frustrations about their classes with no specific details. Why?

The post reads “After today, it sounds like a great day to take my class to the ocean.” Why?

Post Train: Teacher: “I hate their guts, they are the devil spawn!” Friend: “You would let little Quami float away?” Teacher: “Yes, I would not throw him a lifejacket for a million!” Why?

The post was made the day a student drowned on a school-sponsored field trip Why?

Teacher (Rubino) fired • Claims “a friend” was posting for her and she was unaware of the posts • Investigation determines she made the posts. • Rubinoadmits making posts; is apologetic and tearful • This is Rubino’s first offense What’s the Verdict?

Rubino is FIRED • She appeals the firing arguing that the posts were protected speech under the First Amendment and that firing her is a disproportionate punishment “Appeal”-ling Argument – or Not?

Post found to NOT be protected speech • However, under the Education Statute, as she was contrite, was not likely to repeat the behavior, and there was no indication that the post affected ability to teach, firing was rescinded Verdict: 2-year Unpaid Suspension – then Back in the Classroom

Not all speech is protected under First Amendment • For public employees, speech must be a “matter of public concern” to be protected (Pickering v. BOE) • Even in matters of public concern, protection does not extend to an employee airing a personal grievance (Connick v. Myers) • Intent behind personal statements can be hard to communicate – and judgement is usually passed based on perception • Final Word: Refrain from posting thoughts or comments about students online at all FYIs: Posting About Students

Teachers Who Use Social Media to Interact with Students Spanierman v. Hughes Social Media Platform: MySpace

Teacher (Spanierman) creates a MySpace page to: Communicate about homework Learn about students to better relate to them Conduct casual, non-school related discussion Why?

Very informal conversations occur on the site, such as: Spanierman : “Repko and Ashley sittin in a tree. K I S S I N G. 1st comes love them comes marriage. HA HA HA!!” repko: “don’t be jealous cause you cant get any lol ” Spanierman: “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” Why?

A colleague becomes concerned about the page and confronts Spanierman, claiming the page contains naked pictures of men and inappropriate conversations with students Why?

Spainerman removes page; immediately creates a new one New page has similar content, including a poem about the Iraq War: The damage is done. No Where to run. The sand and sun aren’t any fun… The commander and chief much like a thief, will steal away at the dawn of the die. But how many will die, for America’s apple pie…” Why?

The colleague reported the post to administration; Spainerman was put on paid leave • After a hearing, Spainerman is informed his contract will not be renewed • Files in District Court (CT), arguing the MySpace page was free speech What’s the Verdict?

Court found that, under the Pickering test, only the poem about Iraq met the qualifications of protected speech and there was no evidence that the firing was related to the poem • The rest of the postings were determined to be a disruption of school activities, and so school administration was obliged to address them Verdict: Dismissal Upheld

Teachers (Educators) need to understand job classifications and the protections they are entitled to based on those classifications • The lack of legislation/policy in this area leads to confusion (what is “unprofessional” or “too peer-like” speech with students?) • Both sides of the bargaining unit should consider contract or policy language to guide social media usage/interaction rights • Final Word: Teachers should strongly consider how – or even if – they are going to interact with students via social media FYIs: Interacting With Students

Teachers Who Have Social Media Posts Deemed to Be Morally Objectionable Murmer vs. Chesterfield Co. School Board Social Media Platform: YouTube

Murmur, an art teacher, is terminated after a video surfaced on YouTube of him painting Why?

The video was taken during a live TV show where he demonstrated his special technique Why?

Murmer uses this technique in personal artwork and never demonstrated or discussed it in the classroom. In the video, he uses a pseudonym, covers his head with a towel and wears a fake nose and glasses to conceal his identity. When asked why by an interviewer, he replies “I do have a real job.” Why?

When demonstrating the technique, he wore only a black thong The technique involves painting with his paint-laden buttocks (Note: paintings sell for several hundred to several thousand dollars) Why?

High school students and administration view the demo video on YouTube • Murmer is terminated for conduct unbecoming a teacher • Murmer sues the school board claiming his First Amendment Rights to self-expression were violated. He was not advertising and his activities were not related to school • ACLU supports Murmer in his legal action What’s the Verdict?

The case was settled out of court • In an out-of-court statement, Murmer is awarded $65,000 (or two-years salary) • He is not reinstated as an art teacher Verdict: Settled out of court

Majority of state teaching licenses incorporate moral codes to which teachers must adhere • Be aware that social media and online activities can make them easy to identify/their place of employment easy to find • Even if privacy settings are employed, “all posts are ultimately discoverable in court” • Final Word: Make a cost/benefit analysis before posting anything online, and check who/what is connected or linked to your content FYIs: Morally Objectionable Content

Morally Objectionable Art

Is it Tactful? Is it Hardened? Is it Impulsive? Is it Newsworthy? Is it worth 40K+ a year to say it? T.H.I.N.K

References Bennett, S. (2012, November 12). Facebook, Twitter, YouTube, Pinterest – how teachers use social media [INFOGRAPHIC]. Retrieved October 27, 2015, from http://www.adweek.com/socialtimes/social-teaching/473012 John S. and James L. Knight Foundation. (2008, July 25). Young bloggers and online news users are better informed on first amendment rights, authors find. Retrieved October 29, 2015, from http://www.knightfoundation.org/press-room/press-release/young- bloggers-and-online-news-users-are-better/ John S. and James L. Knight Foundation. (2014). Future of the first amendment survey [Infographic]. Retrieved October 27, 2015, from http://www.knightfoundation.org/future-first-amendment-survey/ O'Connor, K. W., & Schmidt, G. B. (2015, March 12). “Facebook Fired”: Legal standards for social media–based terminations of K-12 public school teachers. SAGE Publications. Retrieved October 26, 2015, from http://sgo.sagepub.com/content/5/1/2158244015575636 Papandrea, M. (2012). Social media, public school teachers, and the first amendment. North Carolina Law Review,90, 1597-1642. Retrieved September 21, 2015, from http://lawdigitalcommons.bc.edu/cgi/ viewcontent.cgi?article=1393&context=lsfp

Hey, Teach - Got Free Speech?