In mid-June of this year, the Ninth Circuit Court of Appeals decided the Richerson v. Beckon case, involving a First Amendment claim by a public school teacher after she was demoted for comments she posted on her personal blog (article in the National Law Journal can be found here (subscription required)).

As it happens, I included an analysis of this case at the district court level in my recent paper, Blogging While (Publicly) Employed: Some First Amendment Implications, 47 U. Louisville L. Rev. (forthcoming 2009).  There, I wrote in part:

In Richerson, the Central Kitsap School District initially employed Tara Richerson as the Director of Curriculum. She then was in line for a voluntary transfer to a new position that would permit her to work half time as a curriculum specialist and half time with a new instructional coaching model. Importantly, the instructional coach component of her prospective job required her to follow a model which emphasizes the sensitive and confidential relationship between her coaching position and the teachers that she would be mentoring.

Before being transferred, the school district became aware that Richerson was using a personal blog to be critical of her replacement in the Director position. Language is everything in these public employee free speech cases, so here is the entire blog posting in question:

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. I was on the interview committee for this job and this guy was my third choice … and a reluctant one at that. I truly hope that I have to eat my words about this guy…. 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…. He has a reputation of crapping on secretaries and not being able to finish tasks on his own…. 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.

Although the school district did not terminate Richerson for this conduct, she was officially reprimanded for violating the professional standards associated with the interview process. Richerson, however, did not appear to learn her lesson and later commented about a co-employee and chief union negotiator on her blog: “What I wouldn’t give to draw a little Hitler mustache on the chief negotiator.” After receiving a complaint from this co-employee, the district involuntarily reassigned Richerson to the position of classroom teacher, though they did not ask her to stop blogging.

Based on this record, the court granted summary judgment to the school district on the claim that Richerson’s blogging deserved First Amendment protection. Specifically, the court found that the language did not qualify as speech on a matter of public concern under Connick.

The Ninth Circuit agreed, concluding that the Richerson blog containd “several highly personal and vituperative comments” that justified the demotion.  In short, under the Pickering balancing test for First Amendment speech protection for public employees, her disruptive speech eroded work relationships and thus, the school district employer won the balancing test as far as the various interests involved.

I want to suggest that the Ninth Circuit is right on the current state of public employee speech law, but also want to point out that the most disruptive public employee speech gets the least amount of protection under the Pickering framework.  It is almost like we have constitutionalized the heckler’s veto in this area of the law and that doesn’t make a whole lot of sense.

So what would I do instead, you ask.  I would prefer a test which places a heavier thumb on the balance on the side of the employee, as long as the employee is talking upon a matter of public concern, which involves the heart of the First Amendment’s protection in the first place.   Under this balance, I would let Richerson yap away and let other employees drown her out with their own more sensible counter-arguments.

In the meantime, “vituperative comments” on employee blogs concerning the workplace will have to be muted.