I wasn't meaning to imply that the analysis was easy, just that familiar doctrinal machinery exists in the form of the public employee speech doctrine. If the teacher where to sue alleging violation of his First Amendment rights, are you implying that he would/could/should make some argument other than under Pickering? Same-sex marriage is surely one of the most prominent public controversies, but are you suggesting that somehow takes it out of the usual public employee speech framework? (You posted this on a religion list, but is there any indication that the teacher was speaking in any religious context or that some question of religious liberty is implicated? Other than a generic reference to "sin," the comments reported appear to be rather crude garden-variety bigotry, not religious speech.) I am sympathetic to the teacher and his speech rights and, based only on the reported facts, I think the school's action is open to serious question. The difficulties Eugene describes seem to be inherent in the doctrine the Court has provided, not unique to this particular problem. And I believe there is "particular danger or impropriety in government practices that essentially pressure government employees to shut ... at least if they are speaking on one particular side" when we're talking about any topic of public concern, not just this one. Steve
_____ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 19, 2011 8:43 AM To: Law & Religion issues for Law Academics Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post I'm not sure that there is such a thing as "a straightforward Pickering ... analysis." "Balanc[ing]" "the interests of the teacher, as a citizen, in commenting upon matters of public concern" with "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees" strikes me as generally far from straightforward: It requires "balancing" two hard-to-quantify things that, on top of the difficulty of quantification, are different enough to be largely incommensurable. But beyond this, it seems to me that the particular problem here is: How do we evaluate "the interests" of citizens "in commenting upon matters of public concern" in a situation like this, where the issue - same-sex marriage - is one of the most prominent social, religious, and political topics of our time? Is there particular danger or impropriety in government practices that essentially pressure government employees to shut up on this sort of topic, at least if they are speaking on one particular side of the topic? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Friday, August 19, 2011 5:41 AM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post Doesn't this call for a straightforward Pickering/Connick analysis? I'm assuming Garcetti wouldn't apply, unless the teacher used Facebook to communicate officially with students. I lean strongly in favor of protecting the teacher's speech which, crude as it was, was clearly on a matter of public concern. So isn't the key inquiry whether the employer can demonstrate that this particular speech was harmful to the good order and discipline of the school? Seems to me there would be lots of facts we'd need to know. Was the post readable by anyone or just the teacher's Facebook friends? What's the climate for gay students at the school? Could it be argued that this post realistically (without the fuss caused by the suspension itself) would have caused harm to gay students or disrupted the school generally? Steve Sanders University of Michigan Law School On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: Any thoughts on this? http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/ Lake County Schools Communications Officer Chris Patton said school officials received a complaint Tuesday about the content on Mount Dora High School teacher Jerry Buell's personal Facebook page .... CNN affiliate Central Florida News 13 reported that a status post on it said, "I'm watching the news, eating dinner, when the story about the New York okaying same sex unions came on and I almost threw up." Patton would not confirm the content of the post, but he said Lake County officials are taking the matter very seriously. "We began to review the code of ethics violations immediately and yesterday afternoon temporarily reassigned the teacher pending the outcome of the investigation," Patton told CNN Thursday.... The newspaper said that in the same July 25 post, Buell said same-sex marriages were part of a "cesspool" and were a "sin." ... Buell, a teacher for more than 26 years [and a former "teacher of the year"], served as the Social Studies Department chair at Mount Dora and taught American history and government, according to the high school's website.... _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
