Monday, June 4, 2018
The Georgia Supreme Court denied a petition for certiorari review with a concurring opinion
PETERSON, Justice, concurring.
This is a case about just how far the First Amendment bends in allowing government to punish its employees for the viewpoints they communicate in their private lives. I am doubtful that it allowed the punishment imposed here. But the petitioner cannot prevail on the claims she actually brought even if her right to free speech was violated, and so I concur in the denial of the writ of certiorari.
Kelly Tucker, a public school teacher in Tift County, engaged in a written debate on Facebook regarding the Black Lives Matter movement. The exchange became heated and racially charged; after another participant addressed her with an epithet, Tucker posted a lengthy message dismissive of the movement and derogatory of “thugs.” See Atwater v. Tucker, 343 Ga. App. 301, 302-303 (807 SE2d 56) (2017). This message was plainly about a topic of public concern, with no obvious link to her employment in public education. In this procedural posture (reversal of the denial of summary judgment), we assume that Tucker posted the message on her own time and on her own computer, and without referencing her employment.
Nevertheless, people viewing the debate who disagreed with the viewpoint she expressed discovered she was a teacher and complained to a local elected official, Tucker’s principal, and the local school superintendent. The school administration determined that the message Tucker posted was offensive and decided to punish her. They eventually suspended her for five days and required her to participate in diversity training. Tucker did not avail herself of her right of administrative appeal; instead, she filed a lawsuit against the superintendent and the school board chair alleging claims under 42 USC § 1983 for violation of her First Amendment rights.
Those claims failed on immunity grounds but
Tucker’s Facebook screed does not strike me as possessing any redeeming social value. But the First Amendment does not turn on whether a judge or society as a whole believes a particular viewpoint is worth sharing. Indeed, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (109 SCt 2533, 105 LE2d 342) (1989); see also Snyder v. Phelps, 562 U. S. 443, 458 (131 SCt 1207, 179 LE2d 172) (2011). This “bedrock principle” is difficult to reconcile with allowing government to punish its employees for viewpoints they communicate wholly unrelated to their employment.
Government employers clearly have authority to control their employees in the course of their employment. But it is something else entirely to hold that government employers can punish their employees based on viewpoints expressed in private speech, as the school officials did here. It is far from obvious that the precedent of the Supreme Court requires us to allow such a thing.
The concurrence notes that Tucker could have raised the First Amendment issue in an appeal of the suspension.
Chief Justice Hines and Justice Blackwell joined the concurrence.
The Tifton Gazette reported on the controversy. (Mike Frisch)