CAS Legal Mailbag ' 12/22/22

• Published date: 27 December 2022
• Subject Matter: Employment and HR, Consumer Protection, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Education
• Law Firm: Shipman & Goodwin LLP
• Author: Mr Thomas B. Mooney

Originally appeared in the CAS Weekly Newsletter

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Dear Legal Mailbag:

Faithful reader here for years, and finally with a question of my own to submit!

I am an instructional coach in a large district in our state. A teacher confided in me that she has an "Only Fans" account, under which she sells nude pictures and videos of herself. The content ranges from nude photographs to videos of her engaged in solo sex acts. The account uses a pseudonym, but her face is visible in much of the content.

The teacher is recently tenured, but she still expressed concern to me that if the information becomes public, she could be fired from her job. She made it clear to me that she has no intention of closing the account, as she has garnered a small following on the platform.

I recommended she talk to our union president, keep her mouth shut, and be prepared to assert her Weingarten rights if she is ever brought in for investigatory meetings with administration.

I'm wondering what is Legal Mailbag's take on the situation. What rights (if any) does this teacher have to post and sell nude pictures and videos online? What right would the administration have to remove this teacher from the classroom if word gets out to the students, parents or the community?

Signed,
Intellectually Curious

Dear Curious:

Thank you for posing this question, the answer to which Legal Mailbag hopes will affect very few teachers in Connecticut.

Legal Mailbag starts here by noting that there are two related issues. First, should this activity be considered "speech" that is protected by the First Amendment? Second, if the activity is not constitutionally protected, would it be cause for discipline? Given the answers to these questions, as provided below, it is clear that the teacher engages in this activity at her own risk.

The first question can be answered with an unequivocal "no." In 2004, the United States Supreme Court considered the claim made by a police officer in San Diego, who was fired after it was discovered that he was selling videos on eBay under the seller's name Codestud3aolcom that showed him stripping out of a police uniform and engaging in sexual activity. He claimed that he was engaged in expressive activity protected by the Free Speech clause of the First Amendment. However, the Court rejected his claim per curiam, ruling that his activity was not protected by the First Amendment. San Diego v. Roe, 543 U.S. 77 (2004).

In so ruling, the Court cited the...