Teacher's Blog Caused A Disruption Resulting In No First Amendment Protection

Richerson v. Beckon, 2009 U.S. App. Lexis 12870 (9th Cir. June 16, 2009), is an important decision. A teacher alleged that she was involuntarily and unconstitutionally transferred in retaliation for an entry she made on her personal blog. Because of her blog entry, other teachers did not want to work with her. The court held that this was a sufficient disruption under Pickering. As the court explained:

It is undisputed that the positions from which Richerson was transferred
required that she enter into trusting mentor relationships with other, less experienced
teachers in order for her to give honest, critical, and private feedback.
Richerson’s publicly-available blog included several highly personal and
vituperative comments about her employers, union representatives, and fellow
teachers. Although Richerson did not refer to these individuals by name, many
were easily identifiable by the description of their positions or their personal
attributes. When this blog came to light, Beckon received several complaints from
teachers and other employees of the District, including at least one person to whom
Richerson was assigned as an “instructional coach” who thereafter refused to work
with her. Beckon then transferred Richerson on the ground that her blog had
fatally undermined her ability to enter into trusting relationships as an instructional
coach.

That a public employee’s speech touches on matters of public concern is a
“necessary, but not a sufficient condition of constitutional protection.” Brewster v.
Bd. of Educ., 149 F.3d 971, 979 (9th Cir. 1998). Richerson’s speech and Beckon’s
response are subject to the Pickering balancing test, which includes at least five
factors. See Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 n.1
(9th Cir. 1997). Particularly relevant to Richerson’s case are the considerations of
whether her speech “disrupt[ed] co-worker relations,” “erode[d] a close working
relationship premised on personal loyalty and confidentiality,” or “interfere[d] with
the speaker’s performance of her or his duties.” Id.
It is abundantly clear from undisputed evidence in the record that
Richerson’s speech had a significantly deleterious effect in each of these ways.
Beckon provided testimony, not controverted by Richerson, indicating that several
individuals refused to work with Richerson in the future. Common sense indicates
that few teachers would expect that they could enter into a confidential and trusting
relationship with Richerson after reading her blog. Beckon need only make a
“reasonable prediction” that such disruption would occur; she need not demonstrate that it has occurred or will occur to a certainty. See Brewster, 149  F.3d at 979. This standard was clearly met. See Connick v. Myers, 461 U.S. 138, 151-52 (1983) (“When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.”). Accordingly, the district court did not err in concluding that the
legitimate administrative interests of the School District outweighed Richerson’s
First Amendment interests in not being transferred because of her speech.

Mitchell H. Rubinstein