Do viral stories protect our 1st Amendment freedoms?

The case of a Pennsylvania teacher fired because of blog posts that criticized her own students has taken an interesting turn, as her lawyers claim viral Internet and television interest in the story protect her First Amendment rights.

The teacher, Philadelphia's National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center's blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America's history and a variety of expert contributors., caused a quite a stir back in 2011 and became a national media figure. Munroe lost her job at a suburban Philadelphia public high school after writing a series of blog posts that called her students "jerks," "rat like" and "whiny," among other things.

Monroe's attorneys filed a civil suit against the Central Bucks school district in 2012, seeking $5 million in damages. In late July 2014, a federal district court judge in Philadelphia ruled against Munroe. But her attorneys have appealed.

Third District Judge Cynthia M. Rufe only decided one of two questions presented in the lawsuit. Rufe said Munroe's statements weren't protected by the First Amendment under a test established in two Supreme Court cases, so she didn't need to decide if the statements directly caused her termination.

In 1968 in a Supreme Court decision called Pickering v. Board of Education and a later decision from 2006, Garcetti v. Ceballos, a "balancing test" was set by the Court about public employee statements and the First Amendment.

Commonly known as the Pickering test, a plaintiff such as Munroe must prove that her First Amendment interests as a public employee, and also as a citizen, in commenting on matters of public concern outweigh her public employer's need to promote efficient public services.

Judge Rufe found that in this case, Munroe's "speech, in both effect and tone, was sufficiently disruptive so as to diminish any legitimate interest in its expression, and thus her [First Amendment] expression was not protected."

Rufe stated that, "although Munroe may have occasionally written as a private citizen on matters of public concern, she chose to do so in an opprobrious tone that was likely to generate a strong reaction from anyone connected with the school who read it."

Rufe also drew a distinction between the Pickering case, where the language was only targeted at the public at large.

"Here, Munroe's blog contains gratuitously demeaning and insulting language inextricably intertwined with her occasional discussions of public issues, and far from the 'massive apathy' with which Pickering's letters were received, Munroe's statements attracted considerable negative attention, from concerned parents and from the public at large," Rufe said.

On December 1, Munroe's attorneys filed their appeal, essentially saying that Rufe flunked the Pickering test. Attorney Stanley B. Cheiken filed the 58-page appeal in the Philadelphia-based Third District, and he made several arguments about why he believes Judge Rufe misapplied the test.

Cheiken not only rejected Rufe's use of adjectives, but also argued that the publicity garnered by Munroe on national television and the Internet bolstered the argument that her blog remarks served an important First Amendment purpose.

"The District Court's Opinion seems to acknowledge that Munroe's expression would be afforded greater weight if she had embellished upon her 'opprobrious tone' with more lofty discussions of 'educational reform, pedagogical methods, or specific school policies,'" Cheiken stated. "This type of analysis has no place in the Pickering test, however, because it smacks of governmental regulation of content."

He also said Rufe didn't give enough weight to Munroe's need to express her opinions.

"Munroe's blog raised an issue of political and social concern and her opinions are important to society's conversation regardless of whether they were uttered in the form of a scholarly treatise, a witty op-ed piece, or a nasty rant," Cheiken said.

The undoubted viral interest in the Munroe story also should have been added to the scales of justice in her favor, Cheiken said.

"As reflected by the viral nature of the response to Munroe's blog, as well as in the demand for her (and for the School District) to give interviews on television and to print media outlets, the public was highly interested in a public school teacher's thoughts about the education debate," he said.

"In its application of the Pickering test, the District Court failed to consider the importance of the public's interest in this conversation, let alone the chilling effect on conversation that results from denying constitutional protection to statements made by public employees about their employment experiences."

The Munroe case now heads to a three-judge appeals court, where it will get more national publicity. One factor the court will need to consider is if viral publicity in the Internet and TV cable news age adds to value to the public debate at large. And at some point, Internet and TV cable news will take up that debate about itself as part of the process.

Scott Bomboy is editor-in-chief of the National Constitution Center.

Philadelphia's National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center's blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America's history and a variety of expert contributors.