Most Americans would be surprised at how easily First Amendment rights can be restricted. Your right to criticize the Iraq War during a street protest is almost unrestricted so long as you don't step on someone else's rights in the process. But that same protester may have to watch what she says in her capacity as public employee. A recent court ruling shows how fragile these rights are and how someone can lose her job because of her comments at work.

A public schoolteacher was talking to her high school students in current events class when someone asked if she had ever protested anything in public. According to the court ruling, she answered that "when she passed a demonstration against this nation's military ioperations in Iraq and saw a placard saying 'Honk for Peace,' she honked her car's horn to show support for the demonstrators."

Apparently, one of the students ran home and told mom and dad, who complained to the school that the teacher was discussing controversial things in class. (This was a current events class, mind you). The teacher was fired for saying this and then brought a lawsuit to get her job back under the First Amendment.

To the great unwashed masses, this case would look like a no-brainer, a slam-dunk, as some in the legal community would say. The teacher lost the case and the Court of Appeals in Chicago agreed that her case could not go forward.

Here's why. It has been generally accepted for decades that public employees cannot just say anything they want at work. They only have the right under the First Amendment to speak out on matters of public concern. If Joe Smith in the Department of Transportation complains that he was unfairly denied a promotion or that he doesn't like the air conditioning at work, that's not free speech. If he complains that public money is being wasted in his office, that's free speech. The public would be concerned about money being wasted in a government office, but the public couldn't care less about the air conditioning.

So why isn't it free speech for a teacher in her current events class to say (in response to a specific question from a student) that she honks her car in support of anti-war protesters? Isn't the war a matter of public concern? Normally, the answer is yes. For a public school teacher, at least in the view of one influential appeals court, the answer is no.

The reason for this is that in spring 2006, the Supreme Court issued a ruling that states that a public employee is not engaging in free speech under the First Amendment if the speech is pursuant to official job duties. This ruling attacted widespread criticism because it means that public employees who actually know what they are talking about have the fewest rights under the Constitution. So the example above involving a guy working in the Department of Transportation has to be revisited. If this employee is in charge of financial affairs at the Department, his speech relating to squandered public money is no longer free speech but unprotected work speech because it was his job to say this.

What about the school teacher? The Court ruled against her because the speech was in the course of her current events class. The school district was paying her to educate students so the district can terminate her employment if it doesn't like what she says. Her classroom comments are not free speech but instead unprotected comments which the district was paying her to make.

In ruling against the teacher, the Court compared her case with a Social Studies teacher to tells her students that Benedict Arnold was not a traitor or an English teacher who decides the use her favorite fiction books instead of the assigned curriculum. The court also cited an earlier case ruling that a Social Studies teacher cannot tell students that the Earth is the product of divine creation when the curriculum says the world is four billion years old.

These examples, of course, have nothing to do with a teacher in a current events class honestly answering a student's question about whether she ever participated in a protest. The teacher wasn't lying to the students or railroading them to adopt her point of view. But judges can reason their way through cases any way they want, and there is nothing we can do about it. The court also ruled that students are a captive audience and taxpayers do not have to put up with teachers presenting their personal views against the instructions of the school board.

Bottom line: a current events teacher can be fired for answering a student's question about her protest activities because it's technically not free speech but instead curriculum speech which the school district can object to. This distinction is disturbing and outrageous and probably very difficult for non-lawyers to swallow. It's difficult for lawyers to swallow as well, and I can assure you that as we speak (two days after the decision came down) the teacher's lawyers are wondering how the hell a decision like this case can happen.

I'll tell you how a decision like this can happen. The Supreme Court ruling in spring 2006 which provides the groundwork for this decision was decided 5-4, with George W. Bush's two appointees in the majority. A different president would have appointed different Supreme Court justices, and I seriously doubt that a Democratic President would have chosen two guys with such repressive views on the First Amendment. While the country debates hot-button issues like abortion and affirmative action each time a Supreme Court vacancy arises (and these issues rarely come before the Supreme Court these days), the Court is quietly issuing rulings that affect millions of people in significant ways. This is not a wholesale endorsement of the Democratic Party. But if you think that a teacher should be fired for telling her students in a current events class that she honked her horn in support of an anti-war protest, then by all means, vote Republican.