I May Detest What You Say and Fight For Your Right to Say It, But Can You Be Fired For Saying It?

There have been many discussions in the news and in this blog about people who were fired from their jobs based on postings on their personal Facebook pages.  In one instance, a judge held that Facebook postings can be protected in certain situations.  But what happens when employees make anti-gay comments on Facebook?  This is the question facing the school board of Union Township, NJ this week.

Viki Knox, a teacher at Union High School, was placed on administrative leave after making comments on her personal Facebook page allegedly criticizing a Lesbian, Gay, Transgender, Bisexual History Month display at her school.  As reported in the New Jersey Star-Ledger, Ms. Knox allegedly posted on Facebook that homosexuality is “a perverted spirit that has existed from the beginning of creation” and a “sin” that “breeds like cancer” and that marking was like parading “unnatural, immoral behavior before the rest of us”. http://www.nj.com/news/index.ssf/2011/10/union_township_school_official.html

Those who seek Ms. Knox’s termination argue that teachers that hold similar views could be lax in enforcing new anti-bullying legislation passed in New Jersey last spring.  That raises the question of whether teachers are or should be held to a higher standard than those of us who do not work with children and young people.

Ms. Knox’s supporters claim that not only are her comments protected as free speech but, because they appear to be based on Knox’s religious beliefs, punishing her would amount to a violation of her right to religious freedom.  Does the fact that her comments are based on her religious beliefs immunize her comments from any official sanctions?  Were Knox’s statements even related to her employment? 

One could argue that because Ms. Knox was commenting on the display at her school, her situation is distinguishable from that of Jerry Buell, a Florida High School Teacher who was suspended and then reinstated for anti-gay Facebook postings, from his personal computer, condemning New York’s decision to allow same-sex marriage.  http://www.huffingtonpost.com/2011/08/19/jerry-buell-florida-high-_n_931941.html

It’s a lot to think about.  Voltaire famously said “I may detest what you say, but I will defend to the death your right to say it.”  However, what about your right to be employed????  What do you think?  Should Viki Knox be fired?  Are her comments protected by the First Amendment?

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.