Georgia teacher's right to free speech on social media headed for Supreme Court

ATLANTA — A teacher’s objection to her punishment for a racially charged Facebook exchange has raised fresh questions about the limits on a public employee’s free speech in the age of social media.

Kelly Tucker was a veteran teacher in south Georgia at a middle school in Tifton – where about one-third of students are black – when she weighed in on a public Facebook post about Black Lives Matter protesters participating in the local Christmas parade in December 2014.

Tucker offered her view that “all lives matter.” But she also derided the activities of “thugs” and said the protest signs should have included calls to “take the hood off your head, and pull up your dang pants, and quit impregnating everybody.”

Her words, sent on her personal computer from home, quickly spread online, coming a few months after Michael Brown, an unarmed black teenager, was shot dead in Ferguson, Missouri, by a police officer.

School officials suspended Tucker for five days without pay and ordered her to undergo diversity training. She contended the punishment created a hostile environment, causing her to resign early.

Tucker filed a lawsuit against the school district, arguing she was speaking as a citizen on current affairs when she posted her comments and the punishment violated her First Amendment right to free speech.

The state appeals court dismissed the complaint on the legal basis she could not sue public officials over the matter. The Georgia Supreme Court upheld the dismissal last week.

Tucker’s attorney, Craig Webster, said she now plans to petition the U.S. Supreme Court to hear the case. Webster said there are legitimate restrictions on a public employee’s First Amendment rights, but this isn’t one of them.

“If an employee works at a nuclear weapons plant, you wouldn’t want them going out telling secrets about nuclear weapons that could endanger our national security,” Webster said. “But that’s not what happened here” – that Tucker was simply voicing her opinion about a sensitive political issue.

Webster said while the Georgia Supreme Court upheld the dismissal of Tucker’s lawsuit, Justice Nels Peterson, along with two other justices, expressed “grave concerns” that school officials may have violated her free speech rights.

“Tucker’s Facebook screed does not strike me as possessing any redeeming social value,” Peterson wrote. “But the First Amendment does not turn on whether a judge or society as a whole believes a particular viewpoint is worth sharing.”

Tucker, who now teaches at a private school, called the justice’s commentary a “moral victory” that prompted her to seek review by the U.S. Supreme Court.

Webster said whether a public employee’s speech can be limited in their free time is an issue that sorely needs clarity, noting today’s hyper social environment where even a sitting U.S. president unloads daily on Twitter.

Much of what public employees can and cannot say is “murky” in the eyes of the law, said Richard T. Griffiths, president of the Georgia First Amendment Foundation, which advocates for free speech.

Griffiths said Tucker’s school system did not have clear rules for teachers commenting on social media at the time she posted her remarks about Black Lives Matter, but later established standards.

“It’s one thing for a government entity to say, ‘You’re not going to make comments on social issues of the day that are sensitive and controversial,’” Griffiths said. “It’s another thing to retrospectively take action because the comments turned out to be controversial. That’s very concerning.”

Michael McGonigle, legal director for the Georgia Association of Educators, said a teacher's speech can lose protected status if their comments cause a disruption, as school officials claim Tucker’s comments did.

“When I go out and talk to teacher groups, I tell them to be extremely careful what you put on Facebook, particularly on the public side of things,” McGonigle said. “Because whether you realize it or not, you’re still wearing your teacher hat.

“So your speech – while on the weekend or week nights when you’re not actually at school and you’re commenting about things that can cause disruption in the school – is something you can be disciplined for,” he added.

Jill Nolin covers the Georgia Statehouse for CNHI newspapers and websites. Contact her at jnolin@cnhi.com.