Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
Faithful reader here for years, and finally with a question of my own to submit!
I am an instructional coach in a large district in our state. A teacher confided in me that she has an “Only Fans” account, under which she sells nude pictures and videos of herself. The content ranges from nude photographs to videos of her engaged in solo sex acts. The account uses a pseudonym, but her face is visible in much of the content.
The teacher is recently tenured, but she still expressed concern to me that if the information becomes public, she could be fired from her job. She made it clear to me that she has no intention of closing the account, as she has garnered a small following on the platform.
I recommended she talk to our union president, keep her mouth shut, and be prepared to assert her Weingarten rights if she is ever brought in for investigatory meetings with administration.
I’m wondering what is Legal Mailbag’s take on the situation. What rights (if any) does this teacher have to post and sell nude pictures and videos online? What right would the administration have to remove this teacher from the classroom if word gets out to the students, parents or the community?
Thank you for posing this question, the answer to which Legal Mailbag hopes will affect very few teachers in Connecticut.
Legal Mailbag starts here by noting that there are two related issues. First, should this activity be considered “speech” that is protected by the First Amendment? Second, if the activity is not constitutionally protected, would it be cause for discipline? Given the answers to these questions, as provided below, it is clear that the teacher engages in this activity at her own risk.
The first question can be answered with an unequivocal “no.” In 2004, the United States Supreme Court considered the claim made by a police officer in San Diego, who was fired after it was discovered that he was selling videos on eBay under the seller’s name Codestud3aolcom that showed him stripping out of a police uniform and engaging in sexual activity. He claimed that he was engaged in expressive activity protected by the Free Speech clause of the First Amendment. However, the Court rejected his claim per curiam, ruling that his activity was not protected by the First Amendment. San Diego v. Roe, 543 U.S. 77 (2004).
In so ruling, the Court cited the well-known case of Connick v. Myers, 461 U. S. 138 (1983), which established the analytical framework for evaluating claims concerning off-duty speech by government employees. Under Connick, such speech is protected by the First Amendment if (1) the speech relates to a matter of public concern, and (2) the importance of the speech outweighs any disruption that the speech causes. Mr. Roe’s claim failed on the first prong; the Court held that his “speech” in stripping and engaging in sexual activity on video did not relate to a matter of public concern:
Roe’s activities did nothing to inform the public about any aspect of the SDPD’s functioning or operation. . . . Roe’s expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer’s image.
The speech in question was detrimental to the mission and functions of the employer. There is no basis for finding that it was of concern to the community as the Court’s cases have understood that term in the context of restrictions by governmental entities on the speech of their employees.
Given this ruling, Legal Mailbag is confident that the teacher in question could not succeed with a First Amendment challenge to adverse employment action.
The answer to the second question will depend on the specific facts. In general, employees are free to engage in activities off duty as they see fit. However, when an employee’s actions outside the workplace are disruptive or otherwise harm the employer’s interests, the employee will be subject to discipline, which, depending on the circumstances, could include termination of employment.
In the first instance, this teacher’s Only Fans account should be of no interest to the administration and her employing board of education. However, you report that the teacher’s face is visible to the viewer, and therefore it is possible that the teacher’s identity will be discovered. If and when that happens, the teacher’s fate will depend on the reaction of the school community.
It is possible that those who learn of this teacher’s online activities will not care, and in such case there would be no basis for discipline. Conversely, if the discovery of this information becomes a cause for concern for parents and others such that there is significant distraction and the teacher’s effectiveness is undermined, the employing school district would have the right to initiate termination proceedings. The outcome of such proceedings will depend on the specific facts established at the hearing. However, we should note that such proceedings under the Tenure Act typically end, even for a tenured teacher, with an independent hearing officer’s issuing findings of fact and making a recommendation about continued employment. The Connecticut Supreme Court has ruled that the recommendation in proceedings under the Tenure Act is just that – a recommendation. As long as a reasonable person could base a termination decision on the facts as found, an employing board of education is free to reject a recommendation of continued employment and fire a teacher after such proceedings.
Legal Mailbag notes that you refer to Weingarten rights, and it may be helpful to explain your reference. In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the United States Supreme Court affirmed a decision of the National Labor Relations Board, which held that employees have the right to union representation when an employer conducts an investigatory interview and the employee reasonably fears that discipline will result. Our Connecticut State Board of Labor Relations has adopted this rule under the Teacher Negotiation Act (as well as under the Municipal Employees Relations Act (MERA) and the State Employees Relations Act). Accordingly, as you advised the teacher, if and when school officials want to talk with the teacher about her Only Fans account, she will have the right to union representation in any related interview.
Finally, Legal Mailbag may or may not on occasion make up questions that appear here. But this question is definitely real, as Legal Mailbag is certainly not creative enough to have made this one up.