United States Supreme Court

PICKERING V**. **BOARD OF EDUCATION**, **391 U. S. 563** (1968)
http://www.firstamendmentcenter.org/madison/wp-content/uploads/2011/03/FirstReport.PublicEmployees.pdf

It starts with the landmark case "Pickering v. Board of Education":
    • The controversy began in 1961 when the Board of Education of Township High School District in Will County, Ill., asked the district’s voters to approve a bond issue to raise more than $5 million to build two new high schools, one of which was Lockport East.
    • After the bond issue was approved, the board submitted another proposal to raise taxes to obtain more money for the two schools. Two proposals to raise the tax rate were defeated. In the midst of this controversy, Marvin Pickering, a teacher at Lockport East, decided to speak out.

In 1964, Marvin L. Pickering, a high school teacher in Will County, Ill., wrote a letter to the editor of a local newspaper criticizing the board of education and the superintendent of schools. The letter criticized administrators’ proportional allocation of funds to the schools’ educational and athletic programs.
    • The letter contained such comments as: “That’s the kind of totalitarianism teachers live in at the high school, and your children go to school in,” and “I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken from the teachers by the administration. Do you really know what goes on behind those stone walls at the high school?”

Pickering was fired from his teaching job, his letter having been found “detrimental to the efficient operation and administration of the schools of the district.”
From this case they follow several developments that led to the current "Test" for protected free speech of employees of public institutions:

    • "a public employee currently must make four showings in order to pursue a successful First Amendment retaliation suit. The plaintiff must show:
    • (1) That he or she has suffered an adverse employment action. Of course, firings or demotions would qualify. But a transfer without a drop in
    • benefits and salary or significant diminishment of responsibility might not.
    • (2) That the speech in question touched on a matter of public concern.
    • (3) That his or her free-speech interest trumps the employer’s interest in maintaining an efficient workplace.
    • (4) That the First Amendment-protected speech was a substantial or motivating factor in the employer’s decision to take the adverse action.
    • The employer could then make the so-called Mt. Healthy defense by arguing that the same adverse employment action would have been taken
    • even if the employee had not spoken on a matter of public concern."

Email


Health care communications and

Censorship of email and announcements

The censorship of email and announcements by the MDCPS school district at Coral Gables Senior High on March 5, 2007 were such a clear violation of the contract, if not federal law, including collective bargaining, that this may be a delay tactic by the district. Someone once said that, in politics, sometimes delay is victory. Perhaps the district wished to delay the organizing of teachers as much as possible with such actions to win health care cuts.

Please see information below on freedom of speech in email for MDCPS employees.

Instructions: Feel free to add your own ideas, links, resources on this page or under 'Discussion'. Just click 'Edit This Page' above or the link for discussion. Add your name, email, or Yahoo! ID for communication purposes if you would like. Thank you.


The MDCPS network is public property (Mort Hechavarria, Lead Steward, Jose de Diego Middle School).

MDCPS Email & Network Policies


International News

"Cuba Tightens Restrictions on Bloggers"

As regular MDCPS users of internet forums, does this publication policy sound familiar?

A new government decree, published this week online, said that Internet service providers must "prevent access to sites where the content is contrary to the social interest, morals or good customs..."

For more links on this matter, please see:

A news story about Cuba that doesn't involve Americans making millions, Babalu blog, 12-05-08
Cuban Bloggers Hold Workshop Despite Official Warnings - Latin American Herald Tribune, 12-07-08


California Supreme Court

INTEL CORPORATION,
Plaintiff and Respondent,
S103781
v.
Ct.App. 3 C033076
KOUROSH KENNETH HAMIDI,
Sacramento County
Defendant and Appellant. Super. Ct. No. 98AS05067

Intel Corporation (Intel) maintains an electronic mail system, connected to
the Internet, through which messages between employees and those outside the
company can be sent and received, and permits its employees to make reasonable
nonbusiness use of this system. On six occasions over almost two years, Kourosh
Kenneth Hamidi, a former Intel employee, sent e-mails criticizing Intel’s
employment practices to numerous current employees on Intel’s electronic mail
system... Hamidi’s communications to individual Intel employees
caused neither physical damage nor functional disruption to the company’s
computers, nor did they at any time deprive Intel of the use of its computers. The
contents of the messages, however, caused discussion among employees and
managers.

On these facts, Intel brought suit, claiming that by communicating with its
employees over the company’s e-mail system Hamidi committed the tort of
trespass to chattels...

After reviewing the decisions analyzing unauthorized electronic contact
with computer systems as potential trespasses to chattels, we conclude that under
California law the tort does not encompass, and should not be extended to
encompass, an electronic communication that neither damages the recipient
computer system nor impairs its functioning. Such an electronic communication
does not constitute an actionable trespass to personal property, i.e., the computer
system, because it does not interfere with the possessor’s use or possession of, or
any other legally protected interest in, the personal property itself. (See Zaslow v.
Kroenert (1946) 29 Cal.2d 541, 551; Ticketmaster Corp. v. Tickets.com, Inc.
(C.D.Cal., Aug. 10, 2000, No. 99CV7654) 2000 WL 1887522, p. *4; Rest.2d
Torts, § 218.) The consequential economic damage Intel claims to have suffered,
i.e., loss of productivity caused by employees reading and reacting to Hamidi’s
messages and company efforts to block the messages, is not an injury to the
company’s interest in its computers—which worked as intended and were
unharmed by the communications—any more than the personal distress caused by
reading an unpleasant letter would be an injury to the recipient’s mailbox, or the
loss of privacy caused by an intrusive telephone call would be an injury to the
recipient’s telephone equipment.


Florida Statutes


Title IX ELECTORS AND ELECTIONS

Chapter 104 ELECTION CODE: VIOLATIONS; PENALTIES
104.31(1)(a) - Use his or her official authority or influence for the purpose of interfering with an election or a nomination of office or coercing or influencing another person's vote or affecting the result thereof

104.31(2) - An employee of the state or any political subdivision may not participate in any political campaign for an elective office while on duty

Chapter 106 CAMPAIGN FINANCING
**106.15 f.s.**
106.15(3) - No employee shall, in the furtherance of any candidacy for nomination or election to public office in any election, provide campaign services to the candidate during working hours.

Chapter 447
LABOR ORGANIZATIONS
PART II
PUBLIC EMPLOYEES (ss. 447.201-447.609)
447.501 Unfair labor practices.
447.501 Unfair labor practices.--
(3) Notwithstanding the provisions of subsections (1) and (2), the parties' rights of free speech shall not be infringed, and the expression of any arguments or opinions shall not constitute, or be evidence of, an unfair employment practice or of any other violation of this part, if such expression contains no promise of benefits or threat of reprisal or force.
History.--s. 3, ch. 74-100; s. 1, ch. 77-174; s. 160, ch. 97-103.


Part III: ELECTRONIC MAIL COMMUNICATIONS (ss. 668.60-668.610)
668.6076 Public records status of e-mail addresses; agency website notice.--Any agency, as defined in s. 119.011, or legislative entity that operates a website and uses electronic mail shall post the following statement in a conspicuous location on its website:

Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing.

668.6076 Public records status of e-mail addresses; agency website notice.--Any agency, as defined in s. 119.011, or legislative entity that operates a website and uses electronic mail shall post the following statement in a conspicuous location on its website:

Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing.

Health care communications and

Censorship of email and announcements

The censorship of email and announcements by the MDCPS school district at Coral Gables Senior High on March 5 are such a clear violation of the contract, if not federal law, including collective bargaining, that this may be a delay tactic by the district. Someone once said that, in politics, sometimes delay is victory. Perhaps the district wishes to delay the organizing of teachers as much as possible with such actions.

For developments, please see the Health insurance wikispace.

Email from outside the school system
Is email from outside the school system protected because school email addresses are public record. See statute below.

Political email
The main accusation was that discussion of health care demonstrations on school announcements and email is political in nature. Two sources have stated that Florida statutes, in contrast, define political speech as campaigning for public office.

Federal law
One source has stated that ARTICLE XXI (cont.) K. Freedom of Speech in the UTD contract below is tied into federal law. A violation of an employee's free speech on email may be a violation of federal law. Does this federal law override district guidelines and the contract? This needs to be confirmed with statutory information. Notice that the article mentions 'any forum'.

Progressive discipline and email
If you are asked to sign a paper about violation of email policy and it was the first time this was discussed with an administrator, the policy of progressive discipline may have been violated. A verbal warning should have been issued first.

UTD

Contact person for Shawn Beightol's email case: Jason Joseph
Contract

ARTICLE XXI (cont.)
K. Freedom of Speech
The parties agree that since the Constitution of the United States guarantees every
citizen the right to free speech, all UTD bargaining unit members may speak with the
media without fear of reprisal. This right of Freedom of Speech shall extend to any
forum in which the employee expresses his/her opinion. Any dispute arising under this
provision will not be arbitrable. (162)

ARTICLE XXIII (cont.)
D. The building steward shall have access to the work location public address and closed
circuit television system for the purpose of communicating with members of the
bargaining unit, so long as such utilization does not interfere with the direct instruction
of students.
E. The Union, Union designated representatives, and Union building stewards shall have
access to the work location e-mail for the purpose of communicating with members of
the bargaining unit, so long as such utilization does not interfere with the direct
instruction of students and in accordance with Board Rules regarding E-Mail in effect
at time of ratification. (167)

XXV. Section 23. Electronic Mail Hook-up for UTD
In pursuit of the M-DCPS/UTD goal of professionalization of teaching/education and increasing collaboration, as well as consensus management, the parties have agreed that electronic mail equipment and privileges will be provided to UTD. This equipment is
on loan to UTD for an indefinite period of time. UTD will assume all phone line costs associated with its use.


March, 2009

URGENT – Information Regarding Your Right to Free SpeechPresident Aronowitz takes action on behalf of UTD members as Superintendent Alberto Carvalho's attempts to block rights to access and FREE SPEECH!You are receiving this email because of your recent participation in an UTD E-Activity. Over the past few days, United Teachers of Dade has been made aware of what we believe to be violations of the contract and/or retaliatory and illegal actions by the Superintendent and Administrators of Miami-Dade County Public Schools.Some of our members of UTD who participated in the February 25, 2009 UTD E-Activity have been called to their administrator’s office and warned for sending the E-Activity. Along with the warning, they were presented a copy of an email sent by Freddie Woodson, Deputy Superintendent, and a copy the Policy for Utilization of the E-Mail System.What to Do:
    • If this has happened to you, please notify your steward immediately and provide them with a copy of all items presented to you.
    • If you are called to your administrator’s office, do not refuse to go.
    • If your administrator asks you to sign documents, you are not obligated to do so, however, they may have someone witness this and note that you refused to sign.
    • DO NOT get into a conflict over this issue with your administrator.
    • Get copies of all paperwork presented to you to your UTD Steward or UTD Organizer immediately.
Remember: administrators have been directed by district officials to carry out this illegal activity and are only following orders.UTD Actions
    • UTD filed grievances against Superintendent Alberto Carvalho(copies attached).
    • UTD is exploring any and all legal remedies available to its members through the UTD Contract and applicable laws.
If you were called into your administrator’s office regarding this issue, please reply to this email with the following:Your Name
Employee Number
Work Location
Cell Phone – Home Phone
Email<<E-Activity_Grievances.pdf>>



Research


Court battle highlights email rights - ZDNet UK


Google search: electronic mail public employee freedom of speech decision
http://www.google.com/search?q=electronic+mail+public+employee+freedom+of+speech+decision&rls=com.microsoft:en-us&ie=UTF-8&oe=UTF-8&startIndex=&startPage=1

Forest Service and E-mail Censorship

UC Email Policy


mdpublicschoolteachers emails about incidents of email censorship
Message #13923
Bookmark 13479