Ban on hate speech as “immoral” conduct not a violation of First Amendment

A West Virginia teacher disciplined for hate speech could not challenge the law under which she had been disciplined, because the law—which prohibits immoral conduct on behalf of teachers—had many legitimate non-speech-related uses, the U.S. District Court for the Southern District of West Virginia ruled March 19.

The licensee in the case, Mary Durstein, was fired from a teaching position in 2017, when she posted anti-Muslim content to her Twitter account that was seen and reported by students. Following that, the state Superintendent of Schools opened a disciplinary case against her.

In response, Durstein filed a federal complaint against the Superintendent, seeking declaratory judgments that her statements were protected by the First Amendment and could not be the basis for discipline. In her complaint, Durstein challenged the law that the Superintendent could potentially use to discipline her for her statements, which allows the state to discipline teachers for “immoral conduct.” She argued this was impermissibly vague.

Unfortunately for Durstein, Judge Robert Chambers, hearing the case, held that, regardless of whether the law was too vague to be enforced, she had failed to show that it had the effect of inhibiting the speech rights of teachers.

“‘Immorality’ under this section does not expressly target expression,” wrote Judge Chambers. “‘Immorality’ can take numerous forms. There are many examples of conduct with a nexus to a teacher’s job that do not implicate the First Amendment.”

“Durstein fails to establish that this law—which the State Superintendent points out has been on the books since 1908—has had, or is likely to have, a substantial chilling effect on any speech, except perhaps her own,” Judge Chambers continued. The potential threat to free speech was not enough to empower a facial challenge to the law, which would require that it be impermissible in all cases.