Award-winning Florida teacher Jerry Buell has been pulled out of the classroom and is in danger of losing his job after he made negative comments about homosexuality and homosexual pseudo-marriage on his Facebook page.
So far, a fair bit of the discussion on this topic (e.g., in this thread at VFR and in the original news story) has centered on whether his comments on Facebook should be regarded as "public" or "private" and whether the size of his Facebook "friend" list makes a difference to this judgement.
But Buell's lawyers are apparently making a First Amendment case. Although I haven't read any legal analysis by his lawyers, I would assume from their references to the First Amendment that their argument turns on the fact that Buell is a public school teacher and hence that his employer is a state entity and may not penalize him for using his freedom of speech. If this is the argument, why would it matter whether the comments were made in public or in private? No one believes that the First Amendment applies only to private speech! Far from it.
The only way that I can think of that his making these comments on his personal Facebook page would be relevant would be in showing that he was speaking for himself only and not as a representative of the school. But that could easily be obvious even in fully public contexts. For example, a professor or teacher who writes at a personal blog can be presumed to be making statements that represent only his own views rather than those of his employers. Some take the trouble to state that expressly, but in any event, the question still does not depend on whether the statements were uttered "in private" nor on the size of the possible or intended audience.
Is there some additional layer of First Amendment protection, perhaps based on a precedent I'm unaware of, that depends crucially on a judgment that Buell's comments were "made in private"?
And what the deuce is this Miami lawyer Leto talking about in the story when he says that the teacher was "on the cusp" if his students were his Facebook friends. Really? If you're a public school teacher, the First Amendment doesn't apply to anything you say anywhere that your students might read? That's a new one. Moreover, Leto says that a teacher's comments must not be "racist, hateful, or malicious"? Why? Is it now illegal to make public comments that others deem "hateful" or "racist"? Since when do we have hate speech laws in America?
By the way, note this chilling bit from the school administrator, Chris Patton (emphasis added):
“Just because you think it’s private, other people are viewing it,” Patton said, noting that the teacher’s Facebook page also contained numerous Bible passages.
Wow, yeah: Buell's page contains numerous Bible passages. Now that's scary. It seems to me that this public comment from Patton alone should be carefully collected, especially if they can get Patton's exact words, in preparation for a religious discrimination lawsuit if Buell loses his job.