Delaware Employment Law Blog

Schools have been dealing with the social-media blues, basically, since Facebook was merely a glimmer in Mark Zuckerberg's eye. See Social-Media Woes for School Districts and More Social-Media Woes for School Districts. The balancing act is a tricky one. On one hand, you have the First Amendment rights of teachers to live a life outside of the classroom and to post about it on their blogs and social-networking site. On the other hand are the school's rights as an employer to accomplish its primary mission--to educate students--and to manage its operations effectively.

There are plenty of news stories about teachers who are disciplined or terminated due to information posted online. And, unlike most areas of the law involving social-media issues, there are several reported opinions on this question. More often than note, the termination decision is upheld, based on the court's finding that the teacher's First Amendment rights were outweighed by the school's interest in maintaining peace and order.

Occasionally, though, a decision comes down the other way, finding that the teacher was unlawfully terminated. One such case involved a first-grade teacher from Paterson, New Jersey. We first reported on this story in November 2011, when parents complained that Jennifer O'Brien had referred to her students as "future criminals" and analogized her job to being a "warden" in posts on her Facebook page.

At the administrative level, the administrative law judge recommended that O'Brien be terminated for her Facebook posts. The ALJ determined that the school district's need to operate efficiently trumped Ms. O'Brien's free-speech rights because "thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools."

O'Brien appealed the ALJ's decision to the acting commission of education. When the commission agreed with the ALJ, O'Brien appealed to the New Jersey courts. Last week, the appeals court issued its ruling, upholding the termination. In short, the court found that her comments were, indeed, "conduct unbecoming a tenured teacher," which is any conduct that has a "tendency to destroy public respect for government employees and confidence in the operation of public services."

Mark another line in the Win column for employers.

See also,
The State of the Social-Media Mess in Public Schools
Students, Teachers, and Social Media
No 1st Am. Protection for Teacher's Facebook Posts
Court Denies Reinstatement to Teacher Fired for Facebook Posts
N.Y. Teacher's Firing Overturned Despite Facebook Wish that Students Drown
Blogging Teacher Returns to Work After Suspension for Posting About Students

Teachers and social media. If you're in the business of writing news stories about poor judgment, this is the gift that just keeps giving. If, however, you're an educator, a school administrator, or a parent, this is a combination with potentially grave consequences. Here's yet another shocking example of a teacher who seemingly lost all perspective when she posted about her students on her Facebook page.

As reported by the N.Y. Post, here are a sampling of the comments, Patricia Dawson, a "highly-regarded English teacher" posted:

• she described one of her 11th-grade classes as "suicide-inducing;"
• she dreaded upcoming presentations by two students--who she named in the post--saying, "I will be quietly imploring anyone to end my life . . . and no one will be there to supply a gun;"
• she described one of her students as the "WORST be (sic) he's unteachable and the weirdest human being EVER!"
• she wrote, "I consider all immigrants as potential gun carriers;" and
• she asked, "What bad can happen when young people invest in high-powered firearms? Nothing. . . . nothing at all."

Charming. Just charming.

As a quick aside, I'll just note that it seems that it's the high-school English teacher who makes the offensive Facebook comments about current students. (See, for example, these two prior posts: Blogging Teacher Returns to Work After Suspension for Posting About Students and N.Y. Teacher's Firing Overturned Despite Facebook Wish that Students Drown). Why is that?

Now, if you thought her comments were shocking, I've got a few more even more shocking facts for you to ponder.

First, the teacher was Facebook friends with several of her students. In my opinion, this is a per se bad idea. Teachers should not be Facebook friends with any student in their school who is not the teacher's child. Period. That's it. No discussion. To me, it demonstrates not only bad judgment on behalf of the teacher to be friends with these students but then to post about other students and think her posts wouldn't make it back to the kids she was talking about.

Second, the teacher also was Facebook friends with the President of the PTA. If the kids didn't report her, didn't she think that the PTA President would?

Third, and most disappointing, even if not the most shocking, this teacher was terminated after her online rant in January 2011. Her tenured status, though, meant she had the ability to appeal the decision, which, you may imagine, she did. The arbitrator who decided her appeal, concluded that the teacher "horribly abused her position of trust" with her "cruel andemeaning" Facebook posts. However he also found that she was a "dedicated teacher" and was "not irredeemable." He ordered her to pay a fine in the amount of $15,000 and take a course on "appropriate boundaries and relationships between teachers and students."

That was last June. The DOE, though, has not yet reinstated the teacher, although she remains on the payroll.

I don't know what the solution is to this problem. Suspending the teacher in this case seems necessary, doesn't it? If you were the parent of one of the students named in her online rant, would you be happy about her return? I wouldn't. I could imagine the disruption that her return would cause--if not an outright riot.

But, at the same time, who benefits by keeping her on the payroll and expending the district's already stretched-thin resources while she sits at home, educating no one? No one. If judges and arbitrators are going to let teachers who publicly exhibit "cruel and demeaning" behavior towards the students they teach return to the classroom, schools need to take a different tactical approach. It seems to me that training teachers before they exercise poor judgment is absolutely critical if schools stand a chance in preventing these stories from continuing to make headlines.

See also
Students, Teachers, and Social Media
No 1st Am. Protection for Teacher's Facebook Posts
Court Denies Reinstatement to Teacher Fired for Facebook Posts
Social-Media Woes for School Districts
More Social-Media Woes for School Districts

Attorneys from Young Conaway traveled to Dover today to present at the Annual Training Conference for the Delaware Public Employer Labor Relations Association (DELPELRA).

Tim Snyder presented on the impact of health care reform on public employers. He also gave an overview of what public employers are doing to address the challenges of funding their pension plans.

Scott Holt provided practical tips on avoiding claims and litigation under the Fair Labor Standards Act (FLSA). Scott addressed misclassification of employees and failure to pay properly for breaks, training time, and travel time.

David Hansen wrapped up the Young Conaway portion of the program by speaking efforts of the IRS to tax employee benefits such payments for uniforms and the like.

Debbie Murray-Sheppard, the Executive Director of the Delaware Public Employment Relations Board (PERB), was the luncheon speaker. She updated the group on the activities of the Board over the past year.

After conclusion of the Conference, DELPELA held its annual meeting. Alan Kujala, Chief Human Resources Officer of Kent County, was elected its new President. Young Conaway's Bill Bowser was reelected as General Counsel.

Delaware was the first State to legislate the privacy of students' social-media passwords. California's legislature was the first and, so far, the only State to pass a bill that protects students' and employees' social-networking passwords. That bill is awaiting the signature of California's Governor. For more information about the California law, check out this great post at Seyfarth Shaw's Trading Secrets blog in which the authors were nice enough to mention my previous post on the topic. (Even if they did call me by [gasp] my legal name, Margaret. It's not their fault my parents couldn't pick just one name and stick with it.)

But a state statute is not necessarily the only way to protect students' free-speech and privacy rights in their online content. As reported by blawgger extraordinaire,Venkat Balasubrami, and, subsequently, by GigaOm.com, a federal judge in Minnesota recently held that a school violated a 12-year-old student's First Amendment rights when it cooerced her into turning over her Facebook password so school administrators could investigate comments the girl was alleged to have made.

Although schools' access to students' social-media accounts may be the hot topic du jour but it's not the first. For about as long as Facebook has been around, teachers have been getting into trouble for what the post on it. One of the most distasteful types of posts are those in which a teacher criticizes his or her students.

Long-time readers and Philadelphia-area natives may recall the story of Natalie Munroe, an AP English teacher who was suspended after parents and students discovered posts she'd written, mocking and demoralizing the youths in her class.

A story was recently reported in North Carolina, where a high-school teacher was suspended pending an investigation involving simlar allegations. The English teacher is alleged to have posted photos of her students' works, highlighting the grammar gaffes and misspellings and making fun of their mistakes. Although her Facebook posts were not public, someone with access to them (i.e., a "Facebook Friend"), reported the photos to school officials, which prompted the investigation.

Although the stories vary slightly from one to the next, I continue to believe that the key lessons are time tested. For those who in charge who receive a complaint about a comment made online, deal with the problem for what is--no more and no less. Don't overreact and, for heaven's sake, don't make little girls cry in order to get access to their Facebook pages.

And for those who are posting, think before you do so, just like you would, hopefully, think before you speak. For teachers, don't post about a comment online about student that you wouldn't say directly to the student's parent. And, even more basic, don't mock people's weaknesses. Nobody likes a snob and grammar snobs are no exception.

Tattoos are intended to convey a message. Whether it's an old-school-style pinup girl or the modern favorite "tribal language," the tattoo bearer, presumably, gets inked because of the message that it conveys. Perhaps the message is meant only for the tattoo bearer but perhaps it is intended for those who see it. Maybe it's a combination of both.

Either way, residents of Arizona now have a First Amendment right to send a message via permanent body art, according to the Arizona Supreme Court. Last week, the court ruled last week that tattoos are a form of protected speech. In reaching its opinion, the court looked to an earlier decision by the 9th Circuit, which held that a tattoo is pure speech and that the act of tattooing is expressive activity.

The case was remanded to the Maricopa County Superior Court, which will decide whether the city has the authority to regulate tattoo parlors. The decision must take into consideration that the tattoo shops are engaged in constitutionally protected speech.
So why does this matter to employers? I can think of two questions that the decision would seem to raise.

First, does the opinion support the argument that a Facebook "like" constitutes speech subject to constitutional protection? (If you've got no idea why this matters, see my prior post, Social Media as Speech).

Second, does this mean new obligations for public employers in Arizona? Since a tattoo is protected speech, government employers cannot regulate it without a reasonable justification for doing so. Will this be the end of tattoo-prohibitions in Arizona's public sector?

Via WSJ.com

Does a Facebook "Like" constitute speech for the purposes of the 1st Amendment? In April, a federal judge in Virginia concluded that it did not in Bland v. Roberts (E.D. Va. Apr. 24, 2012). Many legal spectators, including me, disagreed with the holding and speculated that the decision would be appealed.

It's nice to be right once in a while.

The case has been appealed to the Fourth Circuit and, on Monday, Facebook filed an amicus brief in support of having the decision reversed. The brief is not quite as exciting as I'd hoped and contains only minimal legal analysis. Most of the brief is devoted to providing factual background about Facebook, how it's used, and the idea of "Liking" a page or post.

To the credit of Facebook's counsel, though, I suppose there's not much legal analysis to provide. The analysis, actually, is quite simple. Contrary to the District Court's finding, Liking online content is speech--it is a statement by the User. In Bland, the plaintiff-appellant Liked a candidate in the Sheriff's race (who happened to be running against the plaintiff's boss). Liking the campaign Page was the digital equivalent of putting a sign in your front lawn that reads, "Support X for Sheriff."

Moreover, because the Like was an endorsement of a candidate running for elected office, it seems difficult to imagine how it would not be considered political speech, which receives the highest level of First Amendment protections.

The District Court avoided this conclusion by holding that the Like did not "involve[] actual statements." But "statements" are not the only type of "speech" to receive constitutional protection. It has been long settled that "symbolic" speech receives First Amendment protection. The example that comes to mind is the burning of the American flag, which the U.S. Supreme Court held to constitute symbolic speech protected by the First Amendment in Texas v. Johnson.

If the appellate court does reverse, the plaintiff-employee does not win by default. The employer still could argue that he was not terminated as a result of his protected speech or any other defenses that may apply. In the meantime, I'll be curious to see how the employer deals with the present question--is Liking a Facebook page or post "speech" for the purposes of the First Amendment.

See also: Judge's Facebook "Like" Leads to Ethics Complaint

Delaware's Workplace Privacy Act, H.B. 308 will go to the Delaware House of Representatives one week from today. The Bill, if passed in its current form, would impact all employers, including teachers in the public and private sectors. You can read about some of the many other issues I have with the Bill in my previous posts but, in short, the legislation, as drafted has three main prohibitions.

What the Bill Would Prohibit

First, the Bill prohibits an employer from "requiring or requesting" that an employee or applicant turn over his "password or other related account information" to the employer. Although the intent of this provision is commendable, it, too, has a far broader reach than expected.

Second, the Bill prohibits an employer from "requiring or requesting" that an employee or applicant log into a social-networking site in the employer's presence.

Third, the Bill prohibits an employer from accessing an employee's or applicant's social-networking-site's profile account "indirectly through any other person who is a social networking contact" of the employee or applicant.

In plain English, the Bill prohibits an employer from: (1) asking an employee for his Facebook password; (2) asking an employee from logging into his Facebook account so the employer can see it; and (3) viewing an employee's Facebook page through another person's Facebook account.

How the Bill Would Affect Teachers

One of the many concerns I have with the Bill is that effectively prohibits an employer from investigating claims of employee wrongdoing and, simultaneously, prevents an employee accused of wrongdoing from defending herself. Here's an example:

School Principal gets a call from a "concerned parent," who wishes to remain anonymous. The nameless parent reports that he has reason to believe that a teacher is having an inappropriate relationship with a student. He goes on to say that he has reason to believe that the teacher and student are Facebook friends and have exchanged messages on Facebook that demonstrate wrongdoing.

Principal has received a complaint from a parent that Teacher has had inappropriate contact with Student via Facebook. The complaint appears credible. What will Principal do? What must Principal do? Investigate. Immediately.

Let's assume that Teacher is innocent and that, in fact, Teacher is not Facebook friends with any of her students. Principal calls Teacher into his office and confronts her with the allegation. After recovering from the initial shock of the accusation, Teacher denies any wrongdoing and volunteers to log into her Facebook account and show Principal that there are no students in her list of friends.

But Principal cannot oblige--to view Teacher's Facebook page or her Friends list would violate HB 308. So now what? What is Principal to do? Principal is prohibited by law from investigating the complaint other than by conducting in-person interviews of Teacher and Student. And, since the complaining parent did not disclose his name, Principal cannot request more information to substantiate the allegation.

It seems to me that Principal has one choice--suspend Teacher until the matter can be cleared up. I suppose Teacher could, and would, call upon the Union. But what help could the Union offer?

Side Note

The scenario described above is not, at all, unlikely. A recent study in the U.K. found that more than one-quarter of all complaints of teacher misconduct with respect to students, including those with and without merit, originate from communications exchanged via social-networking site.

Although the study did not offer an explanation for its finding, I think most of us would agree that the problem is secrecy--when a parent discovers that his child has been engaged in any "secret" conduct, particularly with an adult, the parent is justifiably concerned. The element of secrecy and surprise is what leads the parent to conclude that something is not quite right and to make a complaint to the school.

Is a public-sector employee engaging in "speech" for purposes of the First Amendment when he "likes" a post on Facebook? A recent decision from the Eastern District of Virginia concludes that the answer is "no." In Bland v. Roberts (E.D. Va. Apr. 42, 2012), the court held that employees in the Sheriff's Department did not engage in protected speech by "liking" their boss' political opponent's Facebook page. When the boss won the election, he fired six employees, who filed suit alleging 1st Amendment retaliation.

One employee claimed to have sent a "statement of support" to the losing candidate during the campaign. The only evidence presented to the court about such support was that he "liked" the candidate's Facebook page. In declining to find this expression entitled to constitutional protection, the court explained that:

merely 'liking' a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements were within the record.

This decision has sparked a lot of fires around the blawgosphere. For example, on the Citizen Media Law blog, Arthur Bright analogizes "liking" to signing an online petition, which certainly would constitute speech. He argues that "liking" a post on Facebook relies on the same type of substantive expression. Venkat Balasubramani and Eric Goldman made this point on the Technology and Marketing Law Blog, as well.

I would not be at all surprised if the decision is appealed given the novel nature of the question (potentially, anyway), and the publicity the case has received. Until then, you may want to review other posts related to the effect of social media on the public-sector workplace. For example, this recent story about a firefighter's Facebook post about the Trayvon Martin case.

Facebook indiscretions. Employees continue to make headlines by displaying bad judgment in circumstances ranging from the banal to the deeply disturbed. And employers continue to face difficult choices. Private-sector employers face possible claims under the NLRA. Public-sector employers face possible First Amendment claims.

Some cases, though, present a compelling case for employer action in response to Facebook comments posted during off-duty time. This is one of those case.

Miami-Dade Fire Department Captain Brian Beckmann posted a comment on his Facebook page about the Trayvon Martin case. Beckmann's post took aim at the prosecutor in the Martin case and claiming that "urban youth" are the products of "failed sh*tbag, ignorant, pathetic, welfare dependent excuses for parents."

A source who viewed the post sent a copy of it to thegrio.com, which broke the story. As you may imagine, many members of the public have raised serious doubts about Beckmann's fitness for duty as a public servant.

The racist nature of the posts also raises questions about what an employer can and should do when it learns of an employee's Facebook posts that seem to conflict with the employee's job duties.

[H/T Richard D. Tuschman at HR Defense Blog]

Christine Rubino had been a teacher in Brooklyn for 15 years without any disciplinary history when she was terminated in response to comments she posted about students on her Facebook page. Specifically, Rubino posted that her 5th-grade students "deserved to drown." And, when asked whether she would "let little Kwame float away," Rubino responded with: "Yes. I would not throw a life jacket in for a million," reports the Huffington Post.

Even more shockingly, the comments came just one day after a 12-year-old girl drowned during a class trip to Long Island beach.

A disciplinary hearing officer found the teacher guilty of "misconduct, neglect of duty, and conduct unbecoming her profession" and, as a result, Rubino was terminated. She subsequently appealed to the N.Y. Supreme Court, which overturned the decision.

Writing for the court, Justice Barbara Jaffee described Rubino's posts as "repulsive." Yet, she went on to conclude that, under the circumstances, the termination was too disproportionate to the offense, thereby requiring that the termination decision be overturned.

The district does not have a social-media policy but, according to the N.Y. Post, fired three teachers last year for inappropriate online posts.

This decision is a difficult one to reconcile with some of the recent cases in which similar comments were held to warrant the termination of a teacher. But Evan Brown writes on his Internet Cases blog about an even more perplexing part of the court's decision. He describes the court's take on the issue of proportionality between the nature of the wrong and the consequences imposed as "contextual integrity." Here's the language from the court's decision that Evan cites to:

[

E]ven though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable.

Note the potential impact of the last part of this sentence. The potential impact is enormous. Essentially, the court says that ignorance of consequences for Facebook posts is legally sufficient to establish a reasonable expectation of privacy. This single sentence effectively recognizes the right to publish to a limited audience; a concept that has been consistently rejected by courts. At least until now.

Rubino v. City of N.Y., 2012 NY Slip Op 30246(U) (N.Y. Sup. Feb. 1, 2012) (PDF)

Continuing the theme from yesterday, here is another story of the impact social media is having on educators. This story is a follow-up to the post written last month by Michael Stafford, No First Amendment Protection for Teacher's Facebook Posts. By way of recap, Jennifer O'Brien was a first-grade teacher in a largely black and Latino school in Paterson, New Jersey, posted on Facebook that she felt like a "warden for future criminals," as reported by NPR.

O'Brien was terminated and subsequently filed suit alleging the district had violated her First Amendment rights. When the suit was later dismissed, O'Brien's lawyer defended her client's Facebook comment, syaing that it was not a reflection of how O'Brien felt about her students. Instead, claimed the lawyer, the comment had been a mere expression of frustration made at the end of a tough day.

I find that defense a bit difficult to buy, frankly. It requires us to disregard what a teacher writes because she "didn't really mean it"? In other words, "Do what I say and not what I do." That sounds like a bad idea for anyone but particularly for a teacher, who is supposed to serve as a role model for the children she teaches.

See also, Social-Media Woes for School Districts

Teachers' use of social media continues to make headlines. NPR reported on a recent incident in New Jersey, involving Union High School teacher, Viki Knox. Knox was suspended in response to outrage surrounding comments she'd posted on her Facebook page.

It started with her post that the school's gay-history exhibit should be removed. She later urged her friends to pray and called homosexuality a "perverted sin," according to NPR. After parents complained about the comments, the school district began an investigation. Later, Knox's supporters and those demanding her resignation faced off in a protest at a school-board meeting.

As I've previously explained, a three-step test is used to determine whether a public employer, including school districts, may discipline an employee due to the employee's speech. First, the court will ask whether the employee was speaking as a citizen or as an employee. Here, that question could be answered either way. Assuming the exhibit was not related to Knox's job duties, it is reasonable to conclude that her Facebook comment was made in her capacity as a citizen, in which case the speech would be protected in the first stage of the analysis.

In the second stage, the court asks whether the speech was on a matter of public concern. Let's again assume that Knox's comment meets the test. If that's the case, the court turns to the final stage of its analysis and asks whether the employer's interest in maintaing an efficient and effective workplace outweighs the employee's interest in free speech.

Here's where Knox's claim would likely fail. The school district would be able to show both actual disruption and the potential for disruption. The protests and complaints received by parents shows that the employee's speech was disruptive to the district's operations.

The school district also would be able to show that there was a potential disruption in the form of loss of trust and respect by parents and students. To the extent that Knox's comments about the "sinful" nature of homosexuality contradicts the district's stated values of tolerance and diversity and that contradiction potentially could result in the inability of Knox to effectively connect with students and parents, the district would be able to discipline her for her speech without violating the free speech protections of the First Amendment.

Facebook has landed another public school teacher in hot water. An administrative law judge in New Jersey has recommended that a school district terminate Jennifer O'Brien for her Facebook posts, in which she referred to her first-grade students in Patterson, New Jersey as "future criminals" and analogizing her job to being a "warden" in a Facebook post.

According to the NSBA, parents initially discovered and reported the teacher's Facebook musings.
In the words of the ALJ, the teacher "demonstrated a complete lack of sensitivity to the world in which her students live. The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone." In the ALJ's view, the district's need to operate efficiently trumped any free speech rights because "thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools."

The lesson here is clear- exercise good judgment when using social media and remember, the world is watching!

You may have heard about the Teamsters’ complaint, filed with the NLRB, which alleges, in part, that a Connecticut employer’s social-media policy constitutes an unfair labor practice under Section 8 of the National Labor Relations Act.  In short, the Union contends that the employer, American Medical Response Team, has a social-media policy that prohibits employees from disparaging their supervisors online, which, the Union contends, is overly broad so as to effectively preclude employees from engaging in protected concerted activity of discussing workplace conditions and terms of employment.  The Union also contends that the employer disciplined an employee pursuant to the policy when she and other employees disparaged their supervisor on the disciplined employee’s Facebook page.

Well, the Teachers’ Union in Manatee County, Florida, has filed a similar complaint—this one alleging that a proposed social-media policy is overly broad so as to violate their right to free speech pursuant to the 1st Amendment. 

The First Amendment protects individuals from government action—which means that non-government employees (i.e., those employed in the private sector), cannot make out a constitutional claim based on free speech.  In the public sector, though, such as in public-school districts, employees do have constitutional rights.  But those rights are not unlimited. 

The basic free-speech analysis asks three questions.  First, is the speech on a matter of public concern?  If not, constitutional protections do not attach.  For example, if the policy prohibits employees from discussing standard workplace grievances, such as work schedules or budget issues, the speech is not of a public concern and not protected. 

Second, is the employee speaking as a citizen or as an employee?  This step of the analysis is relatively new and derives from the Supreme Court’s Garcetti decision.  The newness of the question means that the courts are still navigating the exact contours and the decisions vary greatly.  Generally speaking, though, if an employee speaks only to his or her supervisor or coworkers, as opposed to, for example, writing a letter to the editor of a local newspaper, the speech is said to have been made as an employee and is not therefore protected. 

Third, if the speech is on a matter of public concern and is made by an employee speaking as a citizen, the courts conduct a balancing test to determine whether the government’s interest in maintaining an effective, non-disruptive workplace outweighs the employee’s right to speak freely. 

If the Florida case proceeds, the court will have to determine whether the proposed policy has the effect of prohibiting what would otherwise be protected speech.  One problem for the Union, though, is whether the case will proceed at all.  It is only a proposed policy, so there may be an issue of justiciability—whether the court has jurisdiction to hear the case when there has not yet been any harm to the plaintiff.  Some may argue that, by merely filing suit instead of trying to negotiate the terms of the policy, the Union has acted in an unreasonable manner designed more for media attention than to effectuate meaningful change.  We’ll have to wait to see what the court decides. 

Employees' rights to free speech seems to become a hot topic right around election time.  During a very rare interview with Larry King last night, Supreme Court Justice Breyer discussed the importance of free speech. Larry, being the inquisitive interviewer that he is, asked Justice Breyer about Reverend Terry Jones's highly controversial decision to burn copies of the Koran on the anniversary of 9/11.

The Justice compared Jones's plans to the burning of the American flag, a practice that the Justice was repulsed by during the Vietnam War era. Jones was eventually dissuaded from following through on his plan, thanks in part to calls from Secretary of Defense Robert Gates. However, the Justice noted that Jones was well within his First Amendment rights to carry through with his controversial plan, reminding us all that freedom of speech applies equally to popular and unpopular speech.

While private employers are not subject to the restrictions of the First Amendment, this is certainly an issue for public employers to take to heart. Jones's actions and the upcoming elections may well spark political speech within the office. Such speech is generally protected, unless it falls within one of a very few prohibited categories, including profanity and fighting words.