Teacher Speech Outside of the Classroom

By: Elise Jamison, Staff Member, Vol. 19

“OnlyFans,” a subscription-based platform that allows influencers to monetize their content, has been the subject of significant publicity and contention. The site, known mostly for pornographic content, allows users to publish content to paid subscribers. Some people rely on the site as a primary source of income, while others supplement their income with money generated from an OnlyFans account. Recently, a teacher was fired when her private school discovered her explicit Onlyfans account. Private schools are permitted to use discretion when regulating conduct, but how would a public school react in a similar situation? Could a public school fire a teacher for posting explicit content on OnlyFans?

Supreme Court Guidance on Teacher Speech Outside the Classroom

The Supreme Court has made several rulings concerning what public schools may do under the First Amendment. However, most of that caselaw applies to speech in classrooms. When looking at speech outside of the classroom, specifically on social media, guidance is less clear. Such expressions can be analyzed using the Pickering Connick Test, which provides that speech may not be restricted where it is a matter of public concern and the employee’s speech is more valuable than the disruption it may cause.

In Connick v. Myers, the court held the first step is identifying whether speech is a matter of public or private concern, noting that only speech that is a matter of public concern can be analyzed under the Pickering prong. Where the speech is a mere private grievance, the employer will prevail. Speech is a matter of public concern where it is directed at an audience, relates to the employee’s working conditions, or invites debate concerning a government entity.

If the speech being restricted is a matter of public concern, then the analysis moves to the Pickering prong. The Pickering test balances the value of the speech or expression against a government entity’s interest in restricting the speech. In Pickering v. Board of Education, the Court held that a teacher is free to criticize their employer as long as it is not false or reckless. Where a public-school teacher is concerned, this test may be applied to determine whether restricting a teacher’s ability to publish explicit content on a site like OnlyFans would be permissible.

Pornography as a Matter of Public Concern under Connick  

Several cases have examined public employees’ participation in explicit content. Generally, they determined that public employees cannot be fired for engaging in obscene speech unless it is connected to their workplace. The most relevant case, City of San Diego v. Roe, concerns a San Diego police officer fired for selling cop-themed adult videos on eBay. The Court held that Roe’s actions were a matter of public concern because he appeared in uniform in an adult film. This case further clarified public concern to mean “legitimate news interest, general interest, of value, of concern to the public.”  Some lower courts have questioned the logic of applying the public concern test in cases of nonverbal expression, like pornography, that is unrelated to work and occurs outside of the workplace, but the Supreme Court has yet to address this issue.

Notably, in United States v. National Treasury Employees Union, the Supreme Court held that the government could not ban employees from receiving compensation for speech unrelated to their work. The Court reasoned that where the speech was directed toward an audience and unconnected to official duties, it is a matter of public concern and, therefore, is constitutionally protected. 

In the case of a teacher publishing explicit content, Roe suggests that since the content is directed to an audience, it is of general interest and value to the public. However, the precedents in both Roe and National Treasury imply that as long as the teacher does not appear in some way connected to the school, the content is constitutionally protected.

Applying Pickering

In Land v. L’Anse Creuse Public Schools Board of Education, a teacher was fired when photos of her simulating sex acts were published on social media. The Michigan Court of Appeals ruled that her dismissal should be overturned, holding “where there is no professional misconduct… off-duty, off-premises, lawful conduct, not involving students or school activities…will not constitute reasonable and just cause for discipline.” Notably, the court considered the fact that Land’s photos were posted on a website intended for an “adults-only audience.”

The Land court also considered the disruptive impact of sexually explicit photos. However, parents from the district testified that while unfortunate, the photos did not cause them to lose respect for Land as a teacher or person. The court then reasoned that “universally shared community values” had not been violated.

The intended audience would be key concerning OnlyFans. Because the website is restricted to adult users, and content is protected by a paywall, the ability for students to access content would be limited. The meaningful distinction between groups’ differing community values is an important question with regard to OnlyFans content. Ashcroft v. ACLU allowed “national standards” to be taken into account when determining which internet content is obscene. However, more recent cases reveal that federal appellate courts are split on how these standards can limit speech. If we are going to deem subscribers a “community” then only their standards would matter.

Conclusion

In the hypothetical case of a public-school teacher fired for having an OnlyFans account, the key question is whether the teacher’s explicit OnlyFans account is a matter of public concern; and if it is, whether a teacher’s right to supplement their income through OnlyFans outweighs the school’s need to teach students in a distraction-free atmosphere. Teachers are allowed to supplement their income through speech and expression, so long as this it is not false or reckless. Public school teachers are horrifically underpaid. Many take additional jobs to supplement their income or even pay for basic classroom supplies. Using OnlyFans is a solution to a well-documented need. Where their content does not concern their role as an educator, is unrelated to school, and does not legitimately disrupt their ability to educate students, it should be protected under the First Amendment.