Dear Legal Mailbag:
One of the teachers in my building is quite involved in political affairs and he regularly posts commentary on his blog. This week, however, I think that he went too far. Posting about the results of the recent election, he offered the observation that the mayor and entire political establishment in my town should be very worried because their days in control of town affairs are numbered. That was bad enough, but then he went on to recount a number of incidents in which the mayor had made mistakes and embarrassed himself. Unfortunately, I was not alone in my concern; the mayor’s assistant called me up to ask what I was going to do about this “disloyalty” by a town employee. I told him that it’s a free country and that the teacher has a right to express himself. The response from the mayor’s assistant, however, was concerning. He just responded curtly that he would report back to the mayor on where I stand.
I do believe that teachers do have free speech rights but, given the conversation with the mayor’s assistant, I thought that I should do something. I called the teacher down to the office and asked him in my most charming voice if he ever considered toning it down. I explained that the mayor tries hard and has a lot of influence. Maybe it would be better for everyone, I wondered aloud with him, if he would stop criticizing the mayor. The teacher was polite but non-committal. In any event, I was shocked to read in his next blog post his version of our meeting. There, he described how I had sought to “stifle” his “free speech,” and he declared that he would never be silenced.
Now I am mad. Can I discipline the teacher for publicizing a private meeting in which I simply counseled him that his obnoxious posts may not be worth the trouble they cause?
Legal Mailbag is pleased to offer you some personal advice. When you are in a hole, stop digging. Your conversation with the teacher was a bad idea, and now you want to make it worse.
Your first instinct was correct. Teachers and other public employees have free speech rights. Interestingly, the United States Supreme Court first announced that fact fifty years ago in Picking v. Board of Education (U.S. 1968), the year before its landmark ruling on student free speech rights in Tinker v. Des Moines Independent School District (U.S. 1969). Later, in Connick v. Myers (U.S. 1983), the Court announced the current framework for analyzing free speech claims by public employees. To be protected, speech must relate to a matter of public concern, and the importance of the speech must outweigh any disruption that the speech causes. Then, in 2006, the Court clarified that when public employees speak “pursuant to duty,” i.e., in fulfilling their job duties, their speech is not protected by the First Amendment. Garcetti v. Ceballos (U.S. 2006). In 2015, our Connecticut Supreme Court interpreted the free speech protection under the State Constitution to be a little broader, but even under the State Constitution, it is only when speech pursuant to duty “implicates an employer’s ‘official dishonesty . . . other serious wrongdoing, or threats to health and safety’ [citation omitted] that the speech trumps the employer’s right to control its own employees and policies.” Trusz v. USB Realty Investors, LLC (Conn. 2015),
Given the foregoing, the blogging teacher has a free speech right to criticize the mayor. They do not work together and such criticism is not disruptive to school operation. Consequently, it was inadvisable for you to share your concern with the teacher. You had the right to do so, to be sure, but you have now put the teacher’s exercise of First Amendment rights on the radar. If you now discipline the teacher (or even give the teacher an undesirable assignment), the teacher may bring a claim alleging that your actions are not justified but, rather, were taken in retaliation for his speech, disapproval of which you have expressed.
The story is the same with his second post. It is a closer question because you and he work together, and, under the Connick v. Myers balancing test, speech that disrupts close working relationships is not protected. However, you started it by talking to the teacher, and Legal Mailbag is concerned that discipline of this teacher for reporting on your unfortunate meeting with him would violate his free speech rights. In sum, sometimes it is better to keep your concerns to yourself.