Decision on teacher Facebook post rekindles free speech debate

Decision on teacher Facebook post rekindles free speech debate
Decision on teacher Facebook post rekindles free speech debate

By Jill Nolin

CNHI State Reporter

ATLANTA – A south Georgia teacher's objections over punishment handed to her for a heated and racially charged Facebook exchange has raised fresh questions about the limits on a public employee's free speech in the age of social media.

Kelly Tucker was a teacher at a Tift County middle school – where about one-third of students are black – when she weighed in on a public Facebook post asking whether it was appropriate for Black Lives Matter protestors to demonstrate at the Tifton Christmas parade.

Tucker offered her view that "all lives matter." But she got into hot water when she later derided the activities of "thugs" and said the signs should have included calls to "take the hood off your head, and pull up your dang pants, and quit impregnating everybody." Her words quickly spread online.

The comments – which were typed from her own computer while off duty and which were not directly related to her work – took place in December 2014, just a few months after Michael Brown was killed in Ferguson, Missouri.

When school administrators received complaints about the comments, Tucker was suspended for five days without pay and ordered to undergo diversity training. Tucker also claims the incident led to a hostile work environment causing her to retire early.

Tucker's attorney, Craig Webster, said in an interview this week there are legitimate restrictions on a public employee's First Amendment rights, but this isn't one of them.

"If an employee works at a nuclear weapons plant, you wouldn't want them going out telling secrets about nuclear weapons that could endanger our national security," Webster said.

"But that's not what's happened here," Webster said. "We're talking about people who are simply voicing their opinions about sensitive political issues."

Tucker has taken school officials to court seeking damages, arguing that she was speaking as a citizen on current affairs when she posted her comments and that school officials violated her First Amendment rights when they punished her for doing so.

She lost her appeal to the Georgia Supreme Court this week when the state's high court unanimously agreed with the state Court of Appeals' decision to throw out the case, saying she could not sue public officials in this situation.

But three justices didn't leave the matter at that.

Justice Nels Peterson wrote in a special concurrence to express his "grave concerns" that school officials may have violated Tucker's free speech rights.

"Tucker's Facebook screed does not strike me as possessing any redeeming social value," Peterson wrote. "But the First Amendment does not turn on whether a judge or society as a whole believes a particular viewpoint is worth sharing."

Tucker, who now teaches at the private Tiftarea Academy, has called the judges' commentary a "moral victory." She's decided to try to take the case to the U.S. Supreme Court, according to her attorney.

Webster said he hopes that the country's highest court will rule that school officials are not entitled to "qualified immunity" in this case and that Tucker's constitutional rights were violated.

The Tifton attorney said whether a public employee's speech can be limited in their free time is an issue that sorely needs clarity, noting today's hyper social environment where even a sitting U.S. president unloads daily on Twitter.

Right now, much of what public employees can and cannot say is "murky" in the eyes of the law, said Richard T. Griffiths, president of the Georgia First Amendment Foundation, which advocates for free speech.

"The rules ought to be very clear, but they're not," Griffiths said. "And a lot of institutions, like school systems or county governments, don't have clear rules, and then when something pops up like this where something that is said is very controversial, there's a big fuss about it."

The Tift County school system did not have a social media-specific policy in place at the time of the post, but it does now. A district spokesman said the code of ethics for Georgia educators is what school officials use to address professionalism, whether online or in person.

"It's one thing for a government entity to say, 'You're not going to make comments on social issues of the day that are sensitive and controversial,'" Griffiths said. "It's another thing to retrospectively take action because the comments turned out to be controversial. That's very concerning."

State educator groups work with school officials and educators on finding the balance between protecting a staffer's free speech and the administration's need to maintain order at school.

The groups also offer legal and ethics training that includes guidance on how best to navigate an online world where an off-hand remark can quickly end up on the screen of hundreds and thousands of other users. The crux of the advice revolves around this: Tighten those privacy settings and consider a worst-case scenario where anyone can see the post.

"Increasingly, in today's interconnected world, we all fare better if we present ourselves professionally," said Margaret Ciccarelli, spokeswoman for the Professional Association of Georgia Educators.

Michael McGonigle, legal director for the Georgia Association of Educators, said a teacher's speech can lose protected status if their comments cause a disruption, as school officials claim Tucker's comments did.

"When I go out and talk to teacher groups, I tell them to be extremely careful what you put on Facebook, particularly on the public side of things," McGonigle said. "Because whether you realize it or not, you're still wearing your teacher hat.

"So your speech – while on the weekend or weeknights when you're not actually at school and you're commenting about things that can cause disruption in the school – is something you can be disciplined for," he added.

Jill Nolin covers the Georgia Statehouse for CNHI's newspapers and websites. 

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