Not-So-Free Speech in New Jersey

Who can say "gay" isn't okay in New Jersey?  Judging by Gov. Chris Christie's actions, teachers can't.

Christie told CNN's Piers Morgan on June 15 that he doesn't think homosexuality is a sin even though his religion does.  To be sure that the citizens of New Jersey are aware of Christie's beliefs, the interview and transcript are posted on the official New Jersey website.  Okay, that's his opinion.  But read on.

New Jersey high school teacher Viki Knox may have been inspired by Christie's comments to think that it was okay for a New Jersey public employee to express an opinion about homosexuality, as if the First Amendment is alive and well in New Jersey.

Knox believes that homosexuality is a sin.  She posted her belief -- not on an official school web site, but on her personal Facebook page.  The Union High School District is investigating Knox to determine if she violated school policies.

If Knox's First Amendment rights aren't shed at the schoolhouse gate, as the U.S. Supreme Court held in Tinker v. Des Moines Independent Community School Dist., surely her rights aren't shed at the gate of her house:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

According to Jeanette Rundquist and Peggy McGlone writing for the New Jersey Star-Ledger on Oct. 18:

Knox, 49, used her Facebook page to criticize a display in her Union Township school marking Lesbian Gay Bisexual Transgender History Month. She called homosexuality a "perverted spirit" and a "sin" that "breeds like cancer."

Christie could have seized the chance to shed his reputation as a "bully" of New Jersey teachers and educate his constituents on the First Amendment.  He is a lawyer, after all.  And Tinker was on the books when Christie attended law school.  At a minimum, he should have declined to comment pending the outcome of the investigation.

Instead, Christie weighed in against Knox, giving impetus to homosexual activists and others who are demanding that Knox be fired.  He told 77 WABC Radio host Joe Crummey:

I think that kind of example is not a positive one at all to be setting for folks who have such an important and influential position in our society. I'm really concerned about those kinds of statements being made.

Christie thinks Knox's comments justify investigating her conduct in the classroom.  His comments jeopardize Knox's due process rights to a fair and impartial hearing.

Apparently, Christie didn't express his concern about a Paterson, New Jersey teacher who was suspended in April for comments posted on her Facebook page on her own time and to her friends allegedly comparing her students to "future criminals."  According to Winnie Hu of The New York Times:

A first-grade teacher in Paterson, N.J., was suspended on Thursday after she posted on her Facebook page that she felt like a warden overseeing future criminals, district officials said. ... The Paterson district, with 28,000 students and 2,425 teachers, has long been one of New Jersey's most troubled school systems; it was taken over by the state in 1991 because of fiscal mismanagement and poor academic performance.

Christie signed what's been called "the toughest anti-bullying law in the country," which went into effect last September.  The definition posted on the Union High School website is both vague and overbroad (emphasis in original):

"Harassment, intimidation or bullying" means any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory [handicap] disability, or by any other distinguishing characteristic, that takes place on school property*, at any school-sponsored function [or],on a school bus, or off school grounds* as provided for in section 16 of P.L.2010, CHAPTER 122, that substantially disrupts or interferes with the orderly operation of the school or the rights of other students a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student's property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property; [or] has the effect of insulting or demeaning any student or group of students [in such a way as to cause substantial disruption in, or substantial interference with, the orderly operation of the school]; or creates a hostile educational environment for the student by interfering with a student's education or by severely or pervasively causing physical or emotional harm to the student.

The ACLU of New Jersey, which "helped pass" the "HIB" law, expressed a pyrrhic defense of Knox's First Amendment rights, calling her comments "offensive speech":

Although we do not agree with the sentiments expressed on Union Township teacher Viki Knox's personal Facebook page, her beliefs and comments are protected by the First Amendment. But because her postings raise questions about her conduct within school, the school district can and should investigate whether she is performing her job in accordance with school policies and the state's Law Against Discrimination.

The ACLU believes that the response to offensive speech is not the restriction of speech, but more speech, which is why the ACLU has created programs like the "Don't Filter Me" project, which ensures the public schools aren't illegally denying students access to positive, affirming information about LGBT issues. The ACLU-NJ has participated in this program and successfully advocated for a school in Vineland to remove a filter blocking sites that were supportive of LGBT issues.

First Amendment rights are futile if expressing a personal opinion on a personal computer in one's home justifies the government investigating Knox's conduct in the classroom when there's been no complaint about her classroom conduct.

You can bet that the ACLU would pounce on a school district for investigating a teacher who posted "positive, affirming LGBT" statements on her Facebook page on the chance that she might be "harassing, intimidating or bullying" straight students in her classroom.

The ACLU doesn't support speech -- it supports "more speech" like Christie's, affirming homosexual conduct.

Christie announced on Oct. 4 that "[n]ow is not my time" to be president.

He got that right.

Jan LaRue is senior legal analyst with the American Civil Rights Union.