State Supreme Court rejects teacher’s appeal over Facebook rant but frets over free speech

Here is the official summary of the court ruling:

The Supreme Court of Georgia has denied a petition to appeal a decision by the Georgia Court of Appeals involving a Tift County public schools teacher who disparaged the Black Lives Matter movement on Facebook.

Kelly Tucker engaged in a heated Facebook debate about the movement, posting a lengthy message on Facebook that was dismissive of the movement and derogatory of “thugs.” Some people who disagreed with her viewpoint complained to Tucker’s principal and the local school superintendent, resulting in her five-day suspension and requirement that she attend diversity training.

Tucker sued the superintendent and school board chair, alleging that the punishment violated her First Amendment rights. The trial court refused to dismiss the case, and the defendants appealed to the Court of Appeals, the state’s intermediate appellate court.

The Court of Appeals reversed the trial court’s decision, ruling that the school officials were protected by the legal doctrine of “qualified immunity,” which protects government employees from lawsuits in their personal capacities. They were immune from being sued, the Court of Appeals ruled, because they did not violate any clearly established law that would put them on notice that their actions were illegal.

In a concurrence to the one-sentence order denying Tucker’s petition to appeal to the state Supreme Court, Justice Nels S.D. Peterson writes that he agrees “that there does not appear to be any clearly established law in this jurisdiction that the school officials violated.” As a result, he agrees that the school officials are entitled to “qualified immunity,” and he agrees with the high court’s refusal to hear Tucker’s appeal. However, “I write separately to express my grave concerns that the school officials may well have violated Tucker’s First Amendment rights,” writes Peterson, who is joined by Chief Justice P. Harris Hines and Justice Keith R. Blackwell.

The Court of Appeals observed in its decision that the balancing test laid out in the U.S. Supreme Court’s 1968 decision in Pickering v. Board of Education would apply to First Amendment claims by government employees like Tucker. That test balances the employee’s interest in speaking against the government employer’s interest in not having its employees’ speech disrupt government’s efficient functioning. “But it’s not obvious to me that the Pickering balancing test applies to public employee speech cases when the employee speaks on his or her own time about matters unrelated to his or her employment,” Peterson writes in the concurrence.

“American courts have long been jealous guardians of the right to free speech,” the concurrence says. And, “If 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,” the concurrence says, quoting the U.S. Supreme Court’s 1989 decision in Texas v. Johnson.

“This ‘bedrock principle’ is difficult to reconcile with allowing government to punish its employees for viewpoints they communicate wholly unrelated to their employment,” Peterson writes. “Government employers clearly have authority to control their employees in the course of their employment. But 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.”