Although the First Amendment offers broad free speech protections, a local attorney said courts have become increasingly tolerant of school policies that restrict speech they deem disruptive — a trend that could affect the employment prospects of Clark County teachers sidelined for posting on social media about the killing of conservative activist Charlie Kirk.

Last month, the Clark County School District (CCSD) announced it reassigned at least three teachers after public backlash over posts they made on social media “celebrating” Kirk’s shooting. Republican figures such as CCSD Trustee Lorena Biassotti and state treasurer candidate Drew Johnson have called for the teachers to lose their licenses. On Friday, the district said it could not comment on what may be next for the reassigned teachers. State officials said they’re unaware of any educators losing a license over a social media post.

Employees across the country have been disciplined or fired from their jobs for similar reasons, some of whom have already filed lawsuits in hopes of getting their jobs back. 

Attorney Marc Randazza from the Randazza Legal Group said under the First Amendment teachers have the right to voice their opinions off campus unless it’s related to their job. 

“It ought to be constitutionally protected,” he said. “You should have the right, even as a public employee, to have your own opinions, no matter what they might be.”

Though the First Amendment generally protects speech from government restriction, UNLV Boyd School of Law professor Maryam Ahranjani said there are limits based on the time, place, manner and content of the speech. 

“The idea there is to reduce the potentially harmful impact of the speech,” Ahranjani said. 

CCSD Superintendent Jhone Ebert said in a Sept. 15 statement that school district leaders condemn political violence, and the teachers involved who “have caused substantial disruption to the district and raised concerns about safety are currently not assigned to classrooms.” 

“While we uphold the intent and spirit of the free speech rights provided by the First Amendment, we also have an obligation to ensure our school campuses are safe and focused on learning,” she said. “We have notified our employees that we will not tolerate behavior that distracts from learning in the classroom.” 

Randazza said courts have recently given schools more authority to restrict speech, expanding on the standard set by the Tinker v. Des Moines Independent Community School District case in 1969. That ruling said students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” unless their conduct materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.

“This new interpretation of Tinker was pushed for, really hard, by progressives who wanted to oust anyone who spoke against their views,” Randazza said. “Now they find out that when you unleash the poison gas of censorship, the wind always blows it back into your face.” 

He noted a recent case in New Hampshire where a district court upheld Bow High School administrators’ censorship of parents who wore wristbands protesting transgender athletes. 

The ruling is being appealed, with support from groups such as the Foundation for Individual Rights and Expression (FIRE). 

“By condoning Bow High officials’ viewpoint, discrimination against passive political protest and bastardizing novel student speech principles for application to adult speech, the district court’s decision grants school administrators unchecked authority to censor protected adult expression,” FIRE wrote in an amicus brief. “This approach is unwarranted and dangerous.” 

What might happen next

Under state statute, the State Board of Education may suspend or revoke educators’ licenses for violations such as unprofessional conduct, immorality and convictions of certain crimes. Immorality includes forbbiden conduct such as sex with a minor, incest and selling illegal substances. The Nevada Department of Education said in a statement last Friday there’s no legal definition of unprofessional conduct included in state statute.  

“The State Board of Education would make a determination based on the individual case,” the department said. “We are not aware of any past case in Nevada where a teacher’s license was revoked as a result of social media content.” 

The district did not immediately respond to The Indy’s questions about the process it uses to determine if an employees’ speech is likely to interfere with its work. 

Clark County Education Association Executive Director John Vellardita said in a Monday statement the union could not comment “due to ongoing investigation.”

But in a Sept. 12 message to employees, the district said the First Amendment allows district employees to speak freely as private citizens regarding matters of public concern. However, the district argues it has the authority to prohibit or restrict free speech rights of public employees if the speech results in any of the following:

• The speech materially and substantially interferes with school activities, the employee’s ability to perform assigned duties, or the rights of others.
• The speech does or is likely to create substantial interference to the educational mission and/or operation of the school.
• The speech is used to engage in harassment, discrimination, bullying, cyberbullying, or intimidation of another person. 

“While not every exercise of free speech regarding political violence would create a prohibited result, if the speech causes any of the results listed above, the employee shall be subject to disciplinary action,” district officials said in the Sept. 12 message. 

A district regulation advises employees and volunteers to maintain appropriate privacy settings to control access to their personal social media accounts. 

If a CCSD employee’s or volunteer’s “off-duty conduct interferes with CCSD’s operations or a student’s education, or is otherwise sufficiently connected to CCSD, such conduct may be addressed by CCSD, which may result in discipline and/or removal.” 

However, CCSD officials said in a Friday statement the district doesn’t monitor or verify employees’ personal social media accounts.

During an IndyTalks event last month at the Fontainebleau Las Vegas, Nevada Independent CEO Jon Ralston asked Ebert whether the reassigned teachers should be allowed to return to the classroom. She replied, “I’m working with my lawyers.”

FIRE has tracked almost 80 higher education scholars who have been targeted for social media posts about Kirk. While the foundation isn’t tracking K-12 employees, Director of Public Advocacy Aaron Terr pointed to Texas, where the state’s education department is investigating more than 350 complaints, and states such as Florida and Indiana, which are actively soliciting complaints about teachers’ comments about the assassination through online portals. 

Terr said these investigations and punishments “raise grave First Amendment concerns.” 

“What we’re seeing instead in many of these cases are investigations and punishments driven by political pressure or outrage mobs objecting to the substance of an employee’s actual or perceived views. That’s unconstitutional,” Terr said in a Oct. 2 statement.  

Clark County school officials said in the Sept. 12 message to employees that the law requires it to weigh the balance between the interest of the employee as a private citizen commenting on public matters and the interest of the district, as an employer, “in promoting the efficiency of the public services it performs through its employees.”

Yet Ahranjani, the Boyd law professor, said protests or complaints over unpopular speech, known as a “heckler’s veto,” are not always enough to constitute a disruption, and the Supreme Court has ruled that there has to be some tolerance for unpopular speech. 

“One way to think about all this is that the solution to bad speech is more speech, not censorship of the bad speech,” she said. “It’s more dialogue, more opportunities to learn from one another and express opposing points of view on that. Censoring, it leads us on a path that is dangerous for everybody, because then what will be censored next?”