About Us  |  About Cheetah®  |  Contact Us

Teacher fired for Facebook comment reinstated; court adopts a “just venting” defense

May 17th, 2013  |  Lisa Milam

In the latest in a growing body of case law regarding teachers who are disciplined after taking to cyberspace to air their workaday grievances, a New York appeals court concluded that termination was too harsh a punishment for a teacher who posted on Facebook that she “hated” her students and that they were the “devil’s spawn.” The case was noteworthy in and of itself; it generated considerable attention in the press. But it’s also of interest for the court’s lenient take on employees’ social media slip-ups—and ensuing efforts to cover them up.

“Devil’s spawn.” Just one day after a student from another public school drowned at the beach during a field trip, the teacher posted a comment on her Facebook page: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!” One of her Facebook friends, a school colleague, contacted the assistant principal, noting concerns about the propriety of the postings, and a school district investigation was launched.

When the teacher received the resulting discharge recommendation, she claimed she hadn’t written the offending comments—that a friend with access to her Facebook account had posted them. The investigator then interviewed the friend, who first stated that she was the author, but after being warned that she could be incarcerated for perjury, admitted that the teacher had asked her to take responsibility so she would not lose her job.

Discharge unwarranted. The appeals court unanimously affirmed a lower court’s order setting aside her discharge. The court cited the teacher’s otherwise unblemished record in her 15-year career, and her show of remorse, in holding that the case had properly been remanded to the New York City Department of Education to impose a lesser penalty. Although the posting was “clearly inappropriate,” the teacher was merely venting her frustration after a hard day in the classroom, the court said, noting too that she deleted the post just three days later. Moreover, the comments were directed to her online friends only, and her students (or their parents) were not among them. Therefore, the comments were not published to them or to the public at large, the court reasoned.

On this point, the appeals court seemingly endorsed the view of the lower court. “[W]ith Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend,” Justice Barbara Jaffe wrote below. “Thus, even 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.”

The “just venting” defense. It’s a novel contribution to social media jurisprudence—the court’s holding that the teacher’s Facebook comments were not cause for discharge because she was merely venting frustration. After all, it’s difficult to conceive of an offensive Facebook comment that wouldn’t fall under the “just venting” defense. The ruling bodes well for employees: Under this standard, employers would be hard-pressed to terminate employees for any ill-advised work-related social media commentary.

Also worth noting is the presumption that employees have a reasonable expectation that their postings are for Facebook friends’ eyes only. This notion runs counter to the increasingly common conception that what’s posted on Facebook is public domain. And the court’s suggestion that the teacher mitigated her conduct by deleting the post days later ignores the fact that, practically speaking, Facebook postings are forever.

The fear factor. The fact that the teacher eventually admitted to making the comments after initially denying them also held sway. Significantly, the court below reasoned—and the appellate court affirmed—that the employee only misled investigators into thinking that her friend had posted the Facebook comments “out of fear of losing her livelihood, rather than as part of a premeditated plan.”

We don’t know from the facts provided the extent of premeditation involved in hatching the scheme by which her friend would take the fall for her. Or what, in the court’s view, would constitute a “plan.” But the rationale—that dishonesty is no cause for discharge if undertaken to save one’s job—could spell trouble for employers, and confound those who are charged with conducting workplace investigations on their behalf.