Appeals Court Silences Teacher’s Claim That Her Facebook Post Referring to Students as “Future Criminals” was a Violation of Her First Amendment Rights

Employment Law Newsletter

In , the Appellate Division of the New Jersey Superior Court recently upheld Jennifer O’Brien’s termination for conduct unbecoming a teacher by posting the following comments on Facebook: “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?” First, the court agreed with the finding below that O’Brien was not commenting on a matter of public concern, namely student behavior in the classroom, in which case the comments may have been protected by the First Amendment. Rather, the court reasoned that O’Brien was making personal statement driven by her dissatisfaction with her job and her students’ conduct. Finally, the court observed that even if the comments were on a matter of public concern, O’Brien’s First Amendment rights to make such comments was outweighed by the school district’s interest in the efficient operations of its schools.

Although this decision has limited application outside of the public sector because First Amendment rights do not extend to private sector employment, it nonetheless serves as a heartening sign that under the right circumstances the courts will uphold the termination of an employee who makes damaging comments about the workplace on social media. While this decision did not involve a challenge of O’Brien’s communications as commentary about workplace conditions protected by Section 7 of the NLRA, it would be interesting to see how far the NLRB would push the boundaries of protected activity under these circumstances.