Does anyone remember Stephen Murmer? He was the Virginia high school art teacher suing his former employer over his termination after school officials learned he moonlighted by creating paintings using his bare buttocks as a brush. (See Butt I was doing it on my free time). School officials terminated Murmer after they saw a YouTube video in which he wore a swim thong and a Groucho Marx mask to demonstrate how he applies paint to his rear and presses it onto a canvas. The ACLE filed the lawsuit, claiming that Murmer's termination violates his First Amendment right to free expression. According to the lawsuit, available via the ACLU, Murmer was terminated for art he created on his free time and under a pen name, all of which he kept private from his students:
18. Plaintiff has thus created paintings by using his posterior and other body parts as a stamp with which to imprint paint onto a canvas.
19. With this technique, which includes sitting in paint and then pressing his buttocks onto a canvas, Plaintiff has created paintings which range from depicting stylized flowers to portraiture and patterns.
20. These seemingly simple paintings thus have a surprise in store for the viewer: only gradually, if at all, comes the realization that the image has been created with monotypes of the human body, a realization intended to reverberate in the viewer, setting in motion a process of self-discovery of one’s own personality traits, oscillation between watching a flower (or portrait or pattern) and one's preconceived bias of the human body. The artist's hope is that the viewer thus discovers his individual personality characteristics through visual response – as well as his personal views on the concept and the purpose of art.…
22. On or about October 25, 2003, Stan Murmur appeared in a short-lived cable TV show entitled "Unscrewed with Martin Sargent," where he explained how he promoted his artwork using the Internet, demonstrated how he creates his art, and completed a composition for TechTV.
23. As character invention Stan Murmur, Plaintiff was wearing a costume consisting of a towel wrapped around his head in a turban, a Groucho Marx mask, a white bathrobe, and a black swim thong.…
26. Stan Murmur’s performance eventually found its way onto YouTube, an Internet website on which users post videos. Plaintiff had no role in posting the video on YouTube.…
28. Plaintiff has scrupulously kept his private artwork separate from his role as a teacher.
29. At no time did Murmer discuss his art in his classroom. Nor did he ever inform students about his art or the YouTube.com video.
Murmer and the ACLU claim that what Murmer did on his own time was his own personal business and that the termination violates his constitutional right to free speech. Last week, the trial court denied the school district's motion to dismiss, permitting the case to proceed to trial on March 11.
This case continues to illustrate the dangers that employees face when posting controversial material on websites. What do you think: should employers be allowed to fire employees over personal activities outside of work?
[Hat tip: Lowering the Bar]