The extent of a public employee’s right to free speech, especially in social media, will eventually be decided by the United States Supreme Court. For now, public employees should read Munroe v. Central Bucks School District.
By a vote of 2-1, the Third Circuit Court of Appeals recently held that a Pennsylvania teacher’s derogatory blog posts about her students were not protected under the First Amendment. According to the majority opinion, the disruption caused by the anti-student comments diminished any legitimate interest in their expression.
When the Third Circuit is divided, the case always merits special attention. Over the past several years, Third Circuit cases have comprised less than five percent of the Court’s docket. Last term, just three cases made their way from the federal appeals court to the country’s highest court. All three decisions were reversed.
While Natalie Munroe’s personal blog was geared towards family and friends, it became a national news story when it was discovered by a student and circulated via social media. Once public, her commentary about her students and job created a firestorm that ultimately resulted in her termination. Her most inflammatory comments included a list of alternative “canned” comments for student evaluations, such as: “sneaking, complaining, jerkoff”; “whiny, simpering grade-grubber with an unrealistically high perception of own ability level”; and “A.I.R.H.E.A.D.”
Following her termination, Munroe filed suit, alleging that she was fired in retaliation for exercising her First Amendment rights. The Third Circuit confirmed the district court’s dismissal of the suit, finding that, “Munroe’s various expressions of hostility and disgust against her students would disrupt her duties as a high school teacher and the functioning of the school district.” Accordingly, the school board’s interest in efficiently running its schools outweighed Munroe’s interest in commenting upon matters of public concern.
Judge Jane A. Restani of the United States Court of International Trade, sitting by designation, joined Circuit Judge Robert Cowen’s majority opinion. In his dissent, Judge Thomas Ambro argued that the poor performance reviews Munroe received after the blog posts became public, which were later cited as the grounds for her termination, “were a pretext for its real reason—she had spoken out to friends on a blog.”
Given the importance of the issues involved and the fact that a judge sitting by designation cast the deciding vote, there is a high likelihood that the Third Circuit will review the decision in en banc, meaning that all of the Third Circuit judges will decide the case. Nonetheless, the court is not obligated to rehear the case.
If the decision in Munroe v. Central Bucks School District is affirmed, the teacher could very well ask the U.S. Supreme Court to weigh in. Even though the Roberts Court generally protects speech, public employees are treated differently under the law. While public employees do not surrender all of their First Amendment rights when they accept a public position, the Court held, “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”
Under prior precedent regarding the First Amendment rights of public employees, a balancing test must be employed that “weighs the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968).
In Garcetti v. Ceballos, 547 U. S. 410, 421 (2006), the Roberts Court further limited the First Amendment protections for public employees. By a vote of 5-4, a divided Supreme Court held that if the speech is made pursuant to the employee’s ordinary job duties, the employee is not speaking as a citizen and First Amendment protections do not apply.
Last term, however, the Court did acknowledge that the blanket rule could be interpreted too broadly. In Lane v. Franks, a unanimous Court held that the First Amendment protected a public employee when he testified truthfully about fraud in the workplace pursuant to a subpoena. According to the justices, the obligation to testify is “distinct and independent from any separate obligations a testifying public employee might have to his employer.”
If the case does make it all the way to the U.S. Supreme Court, it would indeed be a rare occasion. With about half of the cases selected so far, there are currently no Third Circuit cases scheduled to be heard by the Supreme Court in the 2015—2016 term.