Georgia Supreme Court denies petition of Tift teacher in free speech case

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

At the same time, a concurrence written on the matter does express concern that the teacher’s First Amendment rights were violated.

Kelly Tucker engaged in a heated social media 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 school superintendent, resulting in a 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 wrote 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 agreed that the school officials are entitled to “qualified immunity” and with the high court’s refusal to hear Tucker’s appeal.

“Nevertheless, I write separately to express my grave concerns that the school officials may well have violated Tucker’s First Amendment rights,” Peterson, who was joined by Chief Justice P. Harris Hines and Justice Keith R. Blackwell, wrote.

Peterson wrote that the case is one concerning how far the First Amendment bends in allowing government to punish its employees for the viewpoints they communicate in their private lives, while expressing doubt it allowed what was imposed on Tucker. He concurred in the denial of the writ of certiorari on the grounds she could not succeed on the claims she brought even if her right to free speech was violated.

“This message was plainly about a topic of public concern, with no obvious link to her employment in public education,” Peterson wrote. “In this procedural posture (reversal of the denial of summary judgment), we assume that Tucker posted the message on her own time and on her own computer, and without referencing her employment. Nevertheless, people viewing the debate who disagreed with the viewpoint she expressed discovered she was a teacher and complained to a local elected official, Tucker’s principal, and the local school superintendent.

“The school administration determined that the message Tucker posted was offensive and decided to punish her.”

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. The 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 wrote in the concurrence. “American courts have long been jealous guardians of the right to free speech.

“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. 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. It is far from obvious that the precedent of the Supreme Court requires us to allow such a thing.”

In the final footnote of the opinion, it is noted that had Tucker administratively appealed her discipline rather than directly filing a lawsuit, she could have asserted her First Amendment arguments without any question of qualified immunity arising.