As neoliberal logics enter more and more institutions, what it means to have civil rights may be gradually shifting. In her introduction to Ethnographies of Neoliberalism, Carol Greenhouse has pointed out that under neoliberal logics, the language of rights is increasingly used to sustain markets. Yet as anyone who has paid attention to recent arguments about government surveillance and privacy, it is not only the language of rights that is used to sustain markets. The very concept of rights is being revised to sustain markets, even in cases that seem too minor to require this imposition of neoliberal logic, such as when courts decide cases of wrongful dismissal. There is a category of person that in the United States has become one of the canaries in the coal mines for this process – K – 12 public school teachers. There are an increasing number of U.S. legal cases involving wrongful dismissal that address how teachers use new media. I am interested in how courts deal with the fact that teaching, along with many other jobs, is the kind of job in which sometimes teachers complain about their students and about the job itself. Teachers sometimes say things about their six-year old students such as “I am not a teacher – I am a warden for future criminals!” Teachers have been saying such things for many years, often wearily in their living rooms or a bit furtively in the school parking lot, having looked around first to make sure that there is no one who can overhear. Since 2006, they have also been typing such statements into their status updates on Facebook. When teachers do this on Facebook in the United States, it turns out that that they risk being fired. “My students are the future criminals of America,” or some such utterance, apparently is not something a teacher who wishes to remain a teacher says using new media. And sometimes, after the school system fires them, they or the union representing them, will sue, often pointing out that teachers are citizens, and saying unkind things about one’s students should be protected as a matter of free speech. In short, these legal cases are moments in which the U.S. courts reflect upon what it means to speak like a public school teacher, and adjudicate whether one’s First Amendment rights have or have not been violated because of one’s employment status.

Why teachers? I think that there are a couple of reasons why teachers and their utterances have become a focus of attention in the contemporary moment. First, teachers, because of the nature of their jobs, are constantly having to negotiate the unsettling properties of new media. They are constantly interacting with school administrators, fellow teachers, parents and students, all of whom have their own informal solutions to the communicative dilemmas that new media can pose to communities of users. Teachers are continually engaging with differently structured audiences, and often doing so using technologies that erase the boundaries between audiences – either literally merging audiences as Facebook’s interface often does, or through the ever-increasing ease of circulating words, as in the technological infrastructure of email and cell phones that enable people to forward emails and text messages so quickly and effortlessly.

At the same time, in the United States at the moment there is an ongoing effort by politicians and government bureaucrats to privatize education. Those funding education have increasingly been arguing that market-based solutions provide the best and most effective strategies to educate students. This involves breaking teachers’ unions, which are seen as preventing these market-based solutions and protecting inept teachers. The cases that come before the court are often cases in which teachers had tenure, and so were able to sue the school districts for wrongful dismissal, although there is in fact one case in which a teacher’s contract was simply not being renewed, supposedly for a rather turgid political poem he posted on Myspace months earlier. In short, by looking at teachers, I am turning to a moment in which audit culture meets the surveillance society.

This intersection has become particularly acute since 2006, when the U.S. Supreme Court ruled in Garcetti vs Ceballos that a public employee’s free speech is not protected under the Constitution, although a citizen’s free speech is. Ceballos, a deputy district attorney in Los Angeles, believed that there were substantial errors in an affidavit used to convince a judge to issue a search warrant. He wrote a memo suggesting that the criminal case be dropped, and ended up testifying in court after being subpoenaed by the defense counsel. He then faced what he considered retaliation at work for doing so – he was demoted, his cases were transferred to other less experienced colleagues, and he was barred from handling any future murder cases. The Supreme Court ruled that the salient question was whether Ceballos spoke as a public employee or a citizen, and in this instance, it was clear that he spoke as a public employee. As a public employee, he was not guaranteed protection under the First Amendment, his rights to free speech were only protected when he spoke as a citizen. With this ruling, the Supreme Court overturned 42 years of court decisions that had declared a public employee’s speech was in fact protected, now one’s job could determine what one was allowed to say. And subsequent relevant court cases reflect this changes, as the decisions now tend to revolve around how to define the defendant – as a citizen, public employee or simply employee. Other critical legal scholars have pointed out that this decision is extending a neoliberal logic by allowing employers to circumscribe someone’s rights to free speech when they define a position’s responsibilities. In these cases, one’s right to free speech is determined by one’s manager’s definition of the job. And this is in the background when courts decide cases about how teachers can use new media.

There are two primary ways in which new media is involved when teachers are fired. The first, and still most common situation, is when a teacher inappropriately sleeps with or sexually harasses a student or co-worker. In these cases, free speech is not an issue. The case revolves around whether or not the sexual misconduct did in fact take place. The court decision will mention people’s new media use, and primarily will discuss with some detail the frequency of contact between the teacher and student or co-worker. Tennessee vs. Binkley: “Those records indicated that the Defendant and C. B. exchanged messages with one another 841 times between March 10, 2008, and September 23, 2008 with some of those texts occurring as late as 1:00 am.” Frequency and time of communication here is part and parcel of court evidence of inappropriate interactions. In these cases, it is the relationship between the teacher and defendant and others that is at issue, and their use of a particular medium is relevant only inasmuch as the medium itself can enable police to trace how often and when contact was made.

But teachers also post things on Facebook or MySpace in which the utterance itself is considered the reason for firing someone, it is violation enough in itself, not merely a trace of other inappropriate practices. I want to turn to a case in North New Jersey that received quite a bit of media attention as well. In late March 2011, a teacher posted as a Facebook status update the following: “I’m not a teacher — I’m a warden for future criminals! They had a scared straight program in school — why couldn’t i [sic] bring 1st graders?” The Scared Straight program brings former inmates to talk to students who are 12 years old or older at schools, so when the teacher mentions being a warden, she is also implicitly referring to the program that took place at her school. In the hearing, the teacher explains her word choice in these terms. She had set up privacy settings for her Facebook profile, so only her 300 Facebook friends could see this status update. Her then principal was not one of her Facebook friends, but her former principal was. When her former boss saw the status update, he decided to contact her current principal by email, explaining he was troubled by the post, and cutting and pasting her status update into his email message. Her current principal then found a way to print out a copy of the actual Facebook profile and update, before meeting with the teacher and asking “what were you thinking”? After suspending her, news of her Facebook post circulated among parents and students, sparking a wave of protests. Her comments were interpreted as racist, in part because she had recently been transferred from another more affluent school to a poorer school where her first grade class was entirely comprised of African-American and Latino students. She had never been reprimanded before, but because of this Facebook post, she was dismissed. She was a tenured teacher, and so when she sued, claiming wrongful dismissal, her case went before an administrative law judge.

The judge’s decision reveals a deep concern with how best to conceptualize the role from which the teacher typed, as well as a critique of the teacher’s presentation of self, and in particular, of contrition. The judge describes at some length the ways in which the teacher apologizes, and why her words and lack of emotion did not count as a proper apology. The teacher seems to hold a different media ideology than the judge. The judge writes: “At the hearing, [the teacher seemed still unable to genuinely understand why her Facebook posts had engendered such an extreme reaction. But she disagreed with [the principal’s testimony that she did not apologize to him. [The teacher] stated that she told [the principal] that she was “very sorry that this caused trouble.” I offered [the teacher] an opportunity to elaborate on the reasons for her remorse by asking her why she apologized to [the principal]. [The teacher] reiterated that it was because she “was sorry for any fuss” her Facebook post created, and for the problems it created for her principal and herself.” The judge finds this apology unsatisfying, and later in her decision explains what the teacher should say – what a good teacher must utter in these circumstances: “If this was an aberrational lapse in judgment, a reaction to an unusually bad day, I would have expected to have heard more genuine and passionate contrition in [the teacher’s] testimony. I needed to hear that she was terribly sorry she had insulted her young students; that she loved being their teacher; and that she wanted desperately to return to the classroom. I heard nothing of the sort. Rather, I came away with the impression that [the teacher] remained somewhat befuddled by the commotion she had created, and that while she continued to maintain that her conduct was not inappropriate, she was sorry others thought differently.” In sum, it is not only [the teacher’s] Facebook posts that demonstrates she does not understand the correct ways to speak as a teacher, it is also her performance in the hearing – she continues to refuse to perform her role as a concerned and caring teacher properly according to the judge.

The judge is then faced with a dilemma – how best to explain that a Facebook post is not an issue of free speech. And here she resorts to a neoliberal argument to explain why free speech is not a relevant principle here. She argues that the teacher is like any other employee, obligated to the school as her employer to treat her customers well – and in this case the students and parents are defined as the customers. Businesses are supposed to be protected by law from employees’ rude speech to customers, and the judge determines that this Facebook posting violates this legal protection, and so the teacher can be legally dismissed.

These court cases become moments in which what it means to speak like a teacher are being both evaluated and policed. For the most part, when teachers speak in ways their schools and local communities judge inappropriate, these are dilemmas resolved more informally by principals and school boards. Courts are less frequently involved. However, the court cases themselves have a larger impact, teachers and prospective teachers have started policing their own new media presence. They are gradually realizing that their comments on social media are not only scrutinized, but can be a basis for dismissal. They become more and more aware that their individual understanding of how a particular medium structures what is or is not public speech must give way to a larger societal perception of what counts as public speech and what counts as private speech. In the process, they come to realize that the jobs one has determines the civil rights one has, that one’s relationship vis-à-vis business defines one’s speech far more than one’s relationship as a citizen vis-à-vis the state.
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Ilana Gershon is an Associate Professor in the Department of Communication and Culture at Indiana University.