Education officials around the country are grappling with issues surrounding public school teachers’ use of social media. Typically concerned that social media makes it easier for teachers to engage in inappropriate communications with their students, officials have adopted guidelines that prohibit K-12 teachers from using social media to communicate with their students for noncurricular purposes. In addition, teachers are frequently punished for content they or others post on social media even when their students and the school community were not the intended audience. Current doctrine leaves unclear how much authority schools have to restrict their teachers’ use of social media to communicate with their students or to control what teachers post online.
This Article contends that these issues involving social media magnify pre-existing problems with the First Amendment doctrine governing public employees generally and teachers in particular and argues that the doctrine needs significant revisions and clarifications. The Court’s decision under Garcetti v. Ceballos to strip public employees of their First Amendment rights for speech made “as employees” pursuant to their official job duties should be construed narrowly so that it applies only when teachers communicate with their students for school-related purposes. Furthermore, teachers should not have to demonstrate that their speech involves a matter of public concern to be entitled to First Amendment protection. Instead, this Article argues that in cases involving noncurricular speech that relates to the workplace, courts should apply a robust version of the Pickering balancing test that recognizes the value of teacher expression even when it does not involve a matter of public concern and that does not permit a hostile community reaction to figure into the calculus. In cases involving non-school-related expression, this Article contends that courts should abandon the balancing test and instead give the speech presumptive constitutional protection that can be overcome only if school officials can demonstrate a significant nexus between that speech and the teacher’s fitness and ability to perform professional duties.
With the First Amendment doctrine governing public school teachers reformed in this way, broad social media bans that restrict or prohibit a teacher’s use of social media to communicate with students for non-school-related purposes would be unconstitutional, and the ability of school officials to punish teachers for their online expression would not be as virtually unlimited as it currently is.