The Limits of Free Speech: Does Posing for Racy Pictures Make A Woman Unfit for a Job in Education?

In the age of the Internet, especially, when everything may be recorded and nothing is forgotten, I think it’s time that we, as a society, broaden the spectrum of who constitutes a good employee.
Publish date:
October 9, 2012
careers, employment, Sex,

When I was a first-year teacher, I remember seeing a segment on CNN about how a Pennsylvania teacher had lost her job for posting a photo of herself on MySpace. The photo, in which she was wearing a pirate hat and drinking from a plastic cup, was taken at a costume party outside school hours and was captioned “The Drunken Pirate.”

“How does someone lose their job for something so stupid?” I remember thinking at the time, if not saying out loud to whomever was in the room, followed by, “She ought to sue.”

She did sue, it turns out -- and her case was dismissed. Two years later, when I found myself in a similar situation -- fighting for my job as a public elementary school teacher after publishing a controversial op-ed -- I lost my fight, too. Now, there’s yet another provocative teacher headline in the news. This time it’s Tiffany Webb, a guidance counselor at a high school in Manhattan, who is suing for wrongful termination after losing her job for having posed in sexy pictures some years prior to working for our former employer, The Department of Ed.

If there’s anyone still out there that thinks that we are free to say whatever we want, or -- in the case of Ms. Webb, participate in legal activities, however provocative -- and that the Constitution will protect this freedom, and that institutions cannot discriminate against you based on your personal beliefs or private lives -- or that employees have the right to private lives and to be private people in their own free time -- and that certainly you have the right to have a past, and let what happened in the past be the past so long as you’re a good employee and so long as what you’ve done outside of work does not interfere with your job -- you’re wrong.

The First Amendment says we have the freedom to practice our religion, as well as freedom from the abridging of our speech, including written speech (i.e., “freedom of the press”) as well as the right to peacefully assemble, and that if we’re displeased with the government we have the right to say so without fear that the government will come down on us for speaking out.

And yet anyone who has seen a video of peaceful protestors getting maced in the face by the cops, or read Naomi Wolf’s account of how she was arrested for participating in the Occupy movement, or has themselves participated in a protest that has been hindered by police presence knows that our individual rights are often infringed upon by institutional wrongs. It is certainly worth pointing out that the high-profile cases I have just highlighted all involved privileged white folks, and that the number of minorities who are stopped and frisked every day in NYC must find it no surprise that the unalienable rights endowed to us by our Constitution are, well, not so unalienable.

It is sadly the case that we are not simply free to be you and me. As I’ve previously bemoaned, most people cannot afford to be fabulously unique -- especially if what makes you fabulously unique could potentially make you unemployable. The First Amendment, for starters, is only a limit on the government. That means that if you’re an employee in the private sector, you can be fired for saying or doing just about anything.

Government employees such as police officers, fire fighters, mail carriers and teachers like me or Ms. Webb have more protections than the typical public sector worker, but even those protections are limited. Here’s how: Essentially, a government employee’s speech may only be Constitutionally protected so long as its political importance does not outweigh the distraction it creates (or has the potential to create) in the workplace. Of course, what constitutes “distraction” and “political worth” can be cause for debate.

When it comes to public employees engaging in controversial speech (in the legal sense of the word), our history of upholding freedom has been less than consistent. The Drunken Pirate, for example, was dismissed because her speech (i.e., the picture) was judged by the school to be indicative of a lack of professionalism, creating a distraction among the school community large enough to render her unable to fulfill her role as an educator. This decision was upheld by the court because the speech was not deemed of any political worth.

Other cases where public employees lost first amendment retaliation cases include one which allowed a police department to deny promotion to a patrolman because he had a sexual affair with another officer's wife, another which upheld disciplinary action against a cohabiting male and female couple (also police officers), and still another which upheld the demotion of a college registrar for having an adulterous affair. In that last case, the employee was found to violate a policy requiring of faculty "high standards of moral, ethical and professional conduct," which sounds similar to the Department of Education’s ubiquitous charge of “Conduct Unbecoming a Professional" (the same charge leveled against me, The Drunken Pirate and Ms. Webb).

Such policies insinuate a certain professional standard of conduct without having ever to define itself. Only when they are violated are the standards in part revealed. Often the cases involve the employees’ private sexual lives, and oftentimes they are women (but not always).

In 1973, for example, the courts upheld the dismissal of a teacher for participating with her husband in a swinger's club group sex party. In 1985, courts upheld the discharge of a husband and wife, both of whom were police department employees, for allowing a magazine to publish photographs of them in the nude. In 1995, the courts upheld the discharge of a police chief who had written a sexually explicit letter in response to an advertisement in a heterosexual pornographic magazine.

In the case of the “hooker teacher,” I resigned rather than be terminated for misconduct, surrendering my rights to a first amendment retaliation case. Law is determined by precedent -- and history, as I have just outlined, was not on my side.

The case my lawyers cited as most similar to mine occurred in 2003, when a federal appeals court ruled that New York City was justified in dismissing a high school teacher who was found to be a member of NAMBLA (the North American Man/Boy Love Association). Whereas one might argue that my writing about having been a sex worker (prior to becoming a teacher) should not have been compared to someone who was a current member of NAMBLA, in the court’s eyes, this -- as well as the earlier cases I have outlined -- are the same.

We can argue whether someone has the right to have an affair, or to pose nude in a magazine, or to have sex with one’s own husband and be photographed doing so, or to come out or be outed as having a sex work past, or we can just decide that conduct outside the place of one’s employment -- even sexually provocative conduct -- is nobody’s business, and that no matter what we are caught doing or what parts of ourselves we publicly share, we may still be good workers and, accordingly, entitled to our jobs.

In the age of the Internet, especially, when everything may be recorded and nothing is forgotten -- every online photo, tweet and status we write, not to mention everything that is written about us, whether true or untrue, can be stored forever and retrieved at any time -- I think it’s time that we, as a society, broaden the spectrum of what is socially permissible and just who or what constitutes a good employee fit for serious public service and meaningful work.

I went to two fancy schmancy colleges -- Antioch College, on scholarship, followed by the New School, where I earned my MFA -- ultra-liberal havens where I was taught to think critically and speak out, empowering me with a sense of entitlement that, I learned the hard way, I couldn’t afford. The main reason I resigned, rather than pursue my right to a trial, was because the arbitrator told me that I was going to lose (when the judge that is deciding your case tells you that you’re going to lose, you believe him).

He gave me a choice -- “agree to disagree” and walk away, or be fired for misconduct, carefully spelling out the fact that, were I to be fired, I wouldn’t qualify for unemployment -- something that both he and I knew I couldn’t live without. Most people can’t afford to fight for their rights -- especially knowing there’s a good shot they’ll lose -- but their rights are our rights and so, in the name of freedom, I hope Ms. Webb wins.