Florida’s Fifth District Court of Appeal (“Fifth DCA”) recently determined the Duval County School Board erred when it disciplined a teacher for politically-charged social media posts made in the run-up to the 2020 presidential election. While the school board found the teacher’s posts violated the teacher code of conduct, the Fifth DCA held otherwise. Namely, the court concluded the posts were permissible exercises of the teacher’s free speech rights, for which he could not (and should not) have been punished. This case, Caggiano v. Duval County School Board, is a reminder that school boards—and all public employers—must be cautious and deliberate in their attempts to discipline and regulate speech made by their employees which do not occur within or reach the workplace.

The social media posts at issue were made on the teacher’s personal—but publicly available—Facebook account leading up to the 2020 election, and were generally derogatory towards or mocking of a political candidate. The school board received a complaint about the teacher’s posts and found seven were violations of the teacher code of conduct. The matter was brought before an administrative law judge, who concluded two of the teacher’s posts failed to adhere to the Principles of Professional Conduct for the Education Profession in Florida (as codified in Florida Administrative Code Rule 6A-10.081), that he engaged in immoral conduct as defined by Florida regulation, as well as conduct prohibited by school board policy. The administrative law judge found just cause existed to reprimand the teacher and recommended he be suspended without pay for three days. The school board adopted these recommendations.

The teacher appealed this discipline, arguing these actions violated his free speech rights. The Fifth DCA agreed, noting the teacher’s posts were not made using school resources, he was not communicating with students, he was not charged with committing improper conduct on or with school property, the posts were not claimed to be false or defamatory statements concerning the school district, administrators, teachers, or students, nor did they involve school administration. Rather, they were merely reposts of third-party content from the teacher’s personal computer.

Attempts to regulate public employees’ speech are analyzed under the United States Supreme Court’s opinion in Pickering v. Board of Education, 391 U.S. 563 (1968), and subsequent precedent. Courts use a two-part test to determine whether a public employee’s speech is protected by the First Amendment. The first question is whether the employee was speaking on a matter of public concern. That is, was the speech of significance to society at large. If not, the inquiry ends and the employee has no First Amendment cause of action against his or her employer. If the speech was on a matter of public concern, however, the second question is whether the employee’s right to free speech outweighs the employer’s interests in an efficient workplace without disruption.

Here, the Fifth DCA held the teacher’s Facebook posts addressed a matter of public concern because they were about a candidate running for president. Given the political nature of these posts, the court determined they were newsworthy. Turning to the second question concerning risks to the school board’s interests in running a disruption-free workplace, the court found there was no evidence that the two posts had created any impact or disruption to the board’s operations. There was little evidence anyone had even seen the posts in question, or that they had upset anyone so as to cause a disruption for the board. Noting the posts were made off-campus, on the teacher’s personal time and on his personal computer, the court concluded that they “amounted to little more than harmless political chitchat; they collectively amounted to the proverbial hill of beans.”

Given the failure by the school board to show any risk to or actual disruption of its operations, its decision to discipline the teacher was unsupportable as a violation of the teacher’s free speech rights. The Fifth DCA reversed the school board’s decision and ordered that his suspension and reprimand be stricken from his employment records, and that he be given full pay and related benefits for the time he was suspended.

Caggiano is a timely reminder that although public employers may regulate the online activities of their employees, they must tread carefully when doing so. Despite teachers being generally held to a higher standard given Florida’ principles of professional conduct, school boards do not have carte blanche to dictate what their staff do and do not do in their personal time and on their personal devices and social media accounts. Rather, assuming the speech in question is one of public concern, there must be some real, identifiable threat or substantial disruption to which the employer can point to before disciplinary action can follow. To that end, employers should review their social media policies and procedures to ensure they are in compliance with these limits on regulating employee speech, and regularly train on enforcement of these rules to prevent infringing on the constitutional rights of their staff.