Teacher Opposed to Gay Marriage Could be Fired

But here the consequences is getting fired or disciplined by the school district, i.e. the "state."

 

So? Does the local school district have a written code of conduct for their employees? Does it include guidelines on appropriate speech? Was the employee aware of that code when he signed his employment agreement? Was the code negotiated by the teacher's union?

 

No, no, no. You don't use a "common sense" standard, although I suppose it gets incorporated through the balancing test somehow, which I, again, hate. But one of the things we have decided through our First Amendment is that there will be collateral damage. Otherwise, again, it isn't worth the paper it's written on. In this case, the collateral damage would be - yes - a boy being
molested might not get the help he needs. Theoretically, that is the price of free speech in our country. The NAMBLA case came out the other way, by the way. But not because the kids needed to be protected. But because it could cause a school disruption. Which I think is a heckler's veto and
inconsistent with our First Amendment values.
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I wasn't attempting to argue legality. I understand that a "common sense" standard doesn't exist. Which is probably a shame. But I am expressing my disdain for a system that allows an advocate of pediophilia to have a place in a school system. Common sense dictates that's a horrible fucking idea.

Edit: sorry for exercising my First Amendment right to fuck up the quote function

 

I wasn't attempting to argue legality. I understand that a "common sense" standard doesn't exist. Which is probably a shame.

[/quote]

In 1952 in the South, it was considered "common sense" that a black man wasn't capable of voting. Or using the same water fountain as a white man.

 

See, that response is exactly where I'm coming from with the common sense thing.

 

Meaning?

 

But every issue of public importance is going to have (at least) two sides to it with the other side having the possibility of saying x person is biased against me because of it.

If the teacher was pro-war and bombing Afghanistan back into the Middle Ages, then anyone on the opposite side could say there is a bias because they are anti-war. If the teacher was anti-war and railed against all things the US was doing over in the Middle East, now Johnny Sonofdeployedsoldier accuses this guy of bias.

He shouldn't have to fear having a pointed opinion.

And a punch in the nose is not a consequence of free speech, that's assault. A person screaming back countering his view in just the same tone is free speech.

 

No free speech thread is complete without a quote from our foremost contemporary First Amendment scholar:

"If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations, then I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media."

 

The problem with this analysis -- as before with Dick Whitman's -- is that the Pickering-Connick test was significantly altered by Garcetti v. Ceballos in 2006. Before you do the balancing test to determine whether the teacher's speech falls into a protected speech category, you must first determine whether the teacher was speaking as a public employee or private citizen. If he's speaking as a private citizen, then you move on to Pickering-Connick. If he's speaking as a public employee, then his speech has no First Amendment protection and he can be fired.

It's fairly clear in this case that the teacher in this situation was speaking as a private citizen. It was off school hours, on his own computer, on his own social media page and had nothing to do with school policy. But, and it's a big, big but, a teacher today doing what the teacher in Pickering did -- writing a letter to the editor about school policy -- would be highly likely to be considered that he was speaking as a public employee and therefore his speech would not get any protection.

Teachers cannot speak freely on any matter of public importance without running the risk of being fired under Garcetti.

 

Of course it's a "consequence" of free speech, albeit undesirable and illegal.

 

How is someone getting punched in the nose for making a speech the same as getting disciplined by a public employer?

 

My FA professor said that the employees basically never win these cases, either because of Garcetti or because of the balancing test. The protection is almost entirely academic at this point.