A former Teacher of the Year is claiming that his First Amendment rights are being violated by a school district investigation into a Facebook post that he “almost threw up” while watching news about gay marriage and calling it a “sin” and “cesspool”.  The school district reportedly reassigned the teacher to a non-student contact position pending investigation of possible policy violations.

Jerry Buell’s post was classic “social media” in that he was expressing a personal opinion from his own computer at home.  The school district, however, reportedly adopted a policy for teachers that “private use of internet and social networking is not private” and requiring them to remain professional in their online communications.  The policy cautioned teachers to “delay posting (about heated subjects) until you are calm and clearheaded”.  Some states allow school districts to restrict teachers’ off duty speech when it would affect teachers’ ability to perform their jobs and interact with students but Buell’s post was reportedly accessible only to his “friends,” at least until it became a national news story.

Speech by public employees as part of their job duties is not constitutionally protected but the boundary is vague, particularly for jobs interacting with the public.  For example, the Supreme Court agreed that an off duty police officer could be disciplined for selling cop-themed porn online because it is “detrimental of the mission and functions of [the] employer”.  Still, the school district’s policy could convert any personal online posting into job-related speech. 

Buell might alternatively claim that he was disciplined for expressing religious opinion.  A follow-up post apparently read “if one doesn’t like the most recently posted opinion based on biblical principles and God’s laws, then go ahead and unfriend me. I’ll miss you like I miss my kidney stone from 1994. And I will never accept it because God will never accept it. Romans chapter one.”  Buell reportedly has been invited to speak at Christian events since the incident.  The school district could counter that Buell was not disciplined for his opinions but his “unprofessional” manner in expressing them.  A fired Wal-Mart employee claimed she was disciplined for expressing religious beliefs to a gay coworker that homosexuals should “go to hell” and are not “right in the head” but the Seventh Circuit Court of Appeals recently held that “if [the plaintiff] is arguing that Wal-Mart must permit her to admonish gays at work to accommodate her religion, the claim fails.”  That case, however, involved a confrontation in the workplace.  

Employers are enacting policies that challenge the traditional boundaries for private activity by attempting to restrain the off duty use of social media.  These policies are driven largely by the recognition that gripes (or confidences) once expressed to a close circle of friends now carry the potential to reach global audiences.  Pushing back, the NLRB is challenging policies that arguably interfere with off duty communications between coworkers about working conditions.  For now, the unique attributes of social media speech guarantee the shifting boundary for job related, versus personal, speech, will surprise even knowledgeable employers and employees alike.