A&A: Regulating teacher speech

Q: I am a public school teacher.  Our individual school site has an “all staff” conference whereby all staff member may post material.  My school is committed to bilingual education, Hispanic culture, etc.  I posted some articles on how poorly bilingual education performs compared to immersion, etc. that does not conform to the party line.  The principal has directed me, and only me, out of 100+ teachers to submit to him anything before I post it on the “all staff.” Is this legal?

A: Government regulation of employee speech does implicate First Amendment issues and is sometimes unconstitutional.  The question usually boils down to the “‘balance between 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.'”  Connick v. Myers, 461 U.S. 138, 140 (1983), quoting Pickering v. Board of Educ., 391 U.S. 563, 568 (1968) (opinion available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0461_0138_ZS.html).

Courts considering government employee speech issues first ask whether the speech at issue “addressed a matter of public concern.”  Kirchmann v. Lake Elsinore Unified School Dist., 57 Cal. App. 4th 595, 601 (1997) (opinion available at http://online.ceb.com/CalCases/CA4/57CA4t595.htm).  If the speech concerns a matter of public concern, “we must balance [the employee’s] interest in making her statement against the interest of the [employer] in ‘”promoting the efficiency of the public services it performs through its employees.”‘”  Id., quoting Rankin v. McPherson, 483 U.S. 378, 384-85 (1987) (opinion available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0483_0378_ZS.html).

In other words, employers have some latitude to regulate employee speech, but the degree of latitude depends on the facts of the particular case, with particular focus on the connection between the speech and matters of public interest and the extent to which the regulation might be necessary for the functioning of the government office involved.
As a general matter, commenting on the efficacy of different types of educational programs would seem to be speech on a matter of public concern.  Although the balancing of a teacher’s interest in posting his comments on the comparative efficacy of educational programs against a school’s interest in promoting the efficiency of the public services it performs through its concerns would depend on a variety of facts, it is rather difficult to imagine how posts on such a subject to what I gather is a bulletin-board-like system administered by the school system would disrupt the workplace enough to justify such speech restrictions.

The situation you describe below may also implicate other speech issues.  Where the government opens up a limited forum for communication, it must regulate speech made in that forum in a content-neutral way.  Speech should not be restricted by a state actor based on the speaker’s viewpoint.  Moreover, restricting speech before it has been made is typically a prior restraint, which is very often inconsistent with the First Amendment.  See, e.g., Pines v. Tomson, 160 Cal. App. 3d 370 , 395 (1984) (“Any restraint on expression prior to publication bears ‘a heavy presumption against its constitutional validity’ under the First Amendment.”).

To reach a definitive answer, your question ultimately requires a complex and highly fact-specific analysis that is beyond the scope of what we can provide through this service.  However, there do seem to be some important First Amendment issues implicated, which may warrant discussion with an attorney.