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9th Circuit Finds No First Amendment Violation in Teacher's Demotion Over Blog Comments
The National Law Journal
June 22, 2009
Delivering a blow to bloggers' rights, a federal appeals court has ruled that a Washington state teacher's blog attacking co-workers, the union and the school district was not protected speech, and therefore she was not unlawfully demoted over it.
The 9th U.S. Circuit Court of Appeals concluded that teacher Tara Richerson's blog contained "several highly personal and vituperative comments" that justified the Central Kitsap School District's decision to transfer her from her job as a curriculum specialist and instructional coach to a classroom teaching position. The court found that Richerson's speech was disruptive, eroded work relationships and interfered with her job performance, which involved mentoring teachers.
"Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog," the court wrote in its Tuesday opinion. "Accordingly, the district court did not err in concluding that the legitimate administrative interests of the school district outweighed Richerson's First Amendment interests."
Richerson's lawyer, Terry Venneberg, a solo practitioner in Gig Harbor, Wash., adamantly disagrees and fears the ruling could have a chilling effect on teachers' First Amendment rights.
"I think the message that it sends is that school teachers and school employees should be very circumspect in the commentary that they offer," Venneberg said. Especially so, if they criticize or engage in controversial speech, he stressed.
"The message that this decision sends is: You want to be very, very careful before you do that because you might make someone angry and cause disruption in your career."
Venneberg, who is considering requesting an en banc hearing, believes the court erred in concluding that the school district's interests trumped his client's First Amendment rights. Not only were his client's free speech rights violated, he said, but her career was hurt.
"Clearly, she didn't lose her job, but she was certainly put off her career path," Venneberg said. "It was pretty significant harm."
Richerson's lawsuit did not name the school district as the actual defendant, but rather Jeanne Beckon, the director of human resources for the school district who transferred her out of her prior job to the teaching position.
Diana Blakney of the Law Offices of Michael B. Tierney in Mercer Island, Wash., who represented Beckon, said she was pleased with the ruling, but declined further comment.
According to court records, Richerson was transferred out of her coaching job in July 2007 after school officials discovered her blog months earlier. She had been running it since 2004. Among the blog entries that Richerson came under fire for was one entry in which she allegedly attacked a teacher and union negotiator, who complained to school officials about it. It read: "What I wouldn't give to draw a little Hitler mustache on the chief negotiator."
Another entry that Richerson was verbally reprimanded for was one in which she commented on a person hired to replace her when she was assigned to her new position. According to court records, it read: "Save us White Boy! I met with the new me today: the person who will take my summer work and make it a full-time year-round position. ... But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him. ... He comes across as a smug know-it-all creep. And that's probably the nicest way I can describe him. ... And he's white. And male. I know he can't help that, but I think the District would have done well to recruit someone who has other connections to the community. ... Mighty White Boy looks like he's going to crash and burn."
Richerson argued all along that her blog was protected free speech, that it was a matter of "public concern" issue and that she was unlawfully demoted over it.
The federal district court disagreed. It concluded that Richerson's speech was not a "public concern" but rather was "racist, sexist, and bordered on vulgar," and it characterized her behavior, in part, as "salacious" and "mean spirited."
