Cengage Advantage Books: Fundamentals of Business Law Today 10th Edition by Roger LeRoy Miller

Exercise 6

In re O'Brien
Superior Court of New Jersey, Appellate Division, 2013 WL 132508 (2013).
FACTS Jennifer O'Brien was a tenured teacher at a school district in Paterson, New Jersey, when she posted the following messages on her Facebook page: "I'm not a teacher-I'm a warden for future criminals!" and "They had a scared straight program in school-why couldn't I bring first graders?"
Not surprisingly, outraged parents protested. The deputy superintendent of schools filed a complaint against O'Brien with the commissioner of education, charging her with conduct unbecoming a teacher. After a hearing, an administrative law judge (ALJ) ordered that O'Brien be removed from her teaching position. The commissioner issued a final decision, concluding that removal was the appropriate penalty. O'Brien appealed to a state court, claiming that her Facebook postings were protected by the First Amendment and could not be used by the school district to discipline or discharge her.
ISSUE Can a school district discharge a teacher because of statements that she posted on Facebook without violating that teacher's free speech rights?
DECISION Yes. The state intermediate appellate court affirmed the commissioner's final decision to remove O'Brien from her position.
REASON The court agreed with the reasoning set forth by the ALJ and the commissioner in their decisions. "To determine whether a public employee's statements are protected by the First Amendment, we balance the employee's interest 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."
Both the ALJ and the commissioner determined that O'Brien's Facebook statements were driven by her dissatisfaction with her job and the conduct of some of her students. Accordingly, "O'Brien failed to establish that her Facebook postings were protected speech…." The seriousness of O'Brien's conduct "warranted her removal from her tenured position in the district."
FOR CRITICAL ANALYSIS-Legal Environment Consideration Certain interests of public employees and their employer are balanced to determine whether the First Amendment protects an employee's Facebook posts. What are those interests?