Volume 97 - No. 5 Minnesota Law Review

Disrupting the Pickering Balance: First Amendment Protections for Teachers in the Digital Age

Engaging in speech on Facebook has led teachers to be investigated, suspended, and even fired. The nature of online speech on social networking websites like Facebook presents novel concerns in First Amendment law. As Facebook and other forms of social media have become increasingly popular, teachers have been disciplined and fired for communicating through Facebook speech, despite the fact that the speech can occur outside of school grounds and during non-work hours. As a result, the balancing that is supposed to occur between a teacher’s speech rights and a school’s right to control its work environment is not a true balance. These balancing problems are heightened by the high moral standard teachers are measured against and the strong desire on the part of schools and parents to restrict teacher speech.

In order to avoid a chilling effect on teacher speech, the Pickering standard must be reconsidered. This Note argues that an actual disruption standard should be a required component of the Pickering balancing test once a court has determined that the speech in question addresses a matter of public concern. By retaining the public concern inquiry, and mandating that an actual disruption is needed in order to take action against Internet speech, both teachers’ interests and schools’ interests will be adequately balanced.


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