Last week, a principal of North Miami Senior High School was removed from his position after he defended the actions of a police officer in McKinney, TX accused of using excessive force. The principal posted a comment on Facebook stating that the officer “did nothing wrong. He was afraid for his life...I commend him for his actions.”
The decision to fire the principal was controversial. Many commentators stated that this decision was a blow to free speech, and even violated the principal’s First Amendment rights. Perhaps sensing that it may have overstepped, the school district announced later in the week that the principal had not been removed from his job, but temporarily re-assigned. This controversy, however, raises an interesting question: had the school district actually fired the principal for his Facebook comment, would it have violated his First Amendment rights?
Public sector employees, including teachers and principals, do not lose their constitutional rights merely because they are employees. This means that a government body cannot fire an employee merely because it does not like what the employee has to say, as this would be a violation of the employee’s First Amendment rights. This is different from the private sector, where, with a few exceptions, an employee can be fired if his employer does not like what he says.
If a public sector employee speaks about a matter of public concern, the employee enjoys broad First Amendment protection. A matter of public concern is an important issue affecting society at large, and is generally not an issue related to the workplace. A public sector employee can only be fired or disciplined for statements made of public concern if the government body has a good reason for doing so, like ensuring that the workplace functions effectively. If an employee’s comments on a matter of public concern might anger his fellow employees to the extent that they would no longer work with him, this might provide the government with a reason to discipline an employee for his comments. However, merely not liking what the employee has to say is not a good enough reason for negative employment action.
However, a public sector employee can be disciplined for his speech if it is not a matter of public concern, but is instead related to his job responsibilities or the workplace. For example, if a police officer criticizes the way his department handled an investigation, the department can discipline him without violating his First Amendment rights.
In the case of the North Miami Senior High School principal, his comments were clearly related to a matter of public concern. The actions of the police officer in McKinney, TX, are not related to the principal’s job duties, but instead are related to the broader debate over proper policing tactics. Therefore, the school district would have needed a good reason to discipline the principal, other than the principal expressed an unpopular opinion. Generally in these types of situations, the employer could argue that the comments caused disruption in the schools or for the administration, but the employer would have to be able to show evidence of disruption, such as numerous calls and protests to the District or the Board; student protests that disrupted the school day; or protests at board meetings that disrupted the board’s ability to conduct its business.
Public employers should remember that most personal remarks by employees about public concerns may be protected speech, prohibiting the employer from taking disciplinary action. Employers should always first check to see whether the comments violated an existing policy, for instance if the employee made the comments in their official capacity, rather than, as in this case, just posted the remarks on their Facebook page. If the remarks do not violate policy and are about a public concern, as opposed to a private work concern, then the public employer should proceed cautiously as the speech may be protected.
Free speech rights of public employees can be complicated. We recommend that when employers are faced with these complex situations that they consult with an experienced labor and employment attorney.
