An unprecedented number of protests – at educational institutions and in city streets – occurred nationwide last year, and protests continue to serve as focal points for public attention and debate going into 2016. The legal realm concerning free speech is in a similar state of turbulence for public employers and for educators.
Here are five First Amendment legal areas that will develop substantially in 2016.
1. Public Employee Free Speech Claims
Courts have spent decades formulating what elements a public employee needs to prove to prevail on a claim that his or her employer has violated First Amendment rights. Indeed, the U.S. Court of Appeals for the Ninth Circuit, which covers states such as California, Washington, Nevada, and Hawaii, has taken the lead in formulating applicable rules, in particular in landmark cases such as Dahlia v. Rodriguez, Ellins v. Sierra Madre, and Desrochers v. San Bernardino.
This coming year, the U.S. Supreme Court in Heffernan v. City of Paterson will consider another aspect of employee First Amendment claims: claims by public employees that their agency has retaliated against them based on the agency’s mistaken impression that the employee supports a particular political cause. Under the First Amendment, a public employer generally cannot take an adverse action against an employee because he or she supports a political cause or a particular political candidate (although there are exceptions for certain types of high-level or politically chosen employees). Public employers are prohibited from taking action based on an employee’s political activity because the activity constitutes the exercise of an expressive right protected by the First Amendment.
Jeffrey Heffernan’s case, being heard in 2016 by the Supreme Court, presents a unique twist. His employer allegedly retaliated against him based on the perception that he had exercised such a right, when Heffernan had not actually done so. Heffernan, a police officer for the Town of Paterson, New Jersey, was asked by his bedridden mother to pick up a campaign sign for her to put on her lawn. The campaign sign supported an individual running for City Council, Lawrence Spagnola, who was evidently opposed to the mayor and police chief. Heffernan went to a distribution center, picked up a sign from campaign workers, and talked briefly with Spagnola’s campaign manager. Someone from the City observed him doing so, and reported the activity back to the Chief of Police. The next day, the Chief demoted Heffernan and downgraded his assignments, stating explicitly that the demotion was because Heffernan supported Spagnola. Heffernan responded he did not actually support him in any way.
In the Court of Appeals, this response proved the undoing of Heffernan’s constitutional claim; the Court found that because he had not actually exercised any constitutional right to free speech or association, he could not assert any constitutional retaliation claim.
The U.S. Supreme Court in late 2015 agreed to hear the case. The issue the Court will consider is whether a First Amendment “perception” claim is viable. In doing do, it will resolve a split among federal appellate courts throughout the country. Heffernan has argued that public employer retaliation against employees for supporting political causes is generally unconstitutional, and that ill-meaning employers should not escape liability just because they turned out to be wrong about the employee’s political leanings. The City, on the other hand, contends that although statutory anti-discrimination laws typically recognize “perception” claims (e.g., a discrimination claim based on the perception someone has a disability), constitutional law, including First Amendment, law traditionally does not. Moreover, if a public employer terminates or disciplines an individual for an erroneous reason, an employee can usually seek a remedy under applicable personnel rules, collective bargaining agreement protections, or sometimes statutory protections. (In fact, California Labor Code sections 1101 and 1102 contain restrictions on employer efforts to control, direct, or coerce employees with regard to political activities.)
Oral argument before the U.S. Supreme Court took place January 19, 2016, and the Justices appear split on the legal issue raised.
2. Compulsory Union Fees
In 2016, the U.S. Supreme Court will decide another First Amendment case that calls on the Court to further develop an area of law that has been the subject of a number of prior decisions. In Friedrichs v. California Teachers Association, the Court will consider whether an “agency shop” requirement for public school teachers violates the First Amendment. An “agency shop” requirement mandates that employees represented by a union in collective bargaining pay at least a “service fee” – even if they are not union members and even if they disagree with what the union is seeking to do on their behalf. Critics of agency shop arrangements contend that forcing such employees to fund union “speech” with which they disagree violates First Amendment free speech principles. In 1977, in Abood v. Detroit Board of Education, the U.S. Supreme Court found such “agency shop” requirement for public teachers constitutional. The U.S. Supreme Court has agreed to review Friedrichs apparently to re-consider this 1977 Abood decision.
The financial stakes at issue in Friedrichs are significant. The Plaintiffs in the cases, who include California teachers who are not members of their unions and object to how their union funds are being used, put the issue as follows: “This is a challenge to the largest regime of state compelled speech for public employees in the Nation. Each year, the State of California compels its public school teachers to make hundreds of millions of dollars in payments to Respondent California Teachers Association (“CTA”), Respondent National Education Association (“NEA”), and their local affiliates. California law makes these payments mandatory for every teacher working in an agency-shop school—which is virtually every teacher—regardless of whether that teacher opposes the positions CTA takes in collective bargaining and regardless of whether the positions CTA takes in collective bargaining are directly contrary to that teacher’s on-the-job interests.”
Oral argument before the U.S. Supreme Court took place January 11, 2016. The Justices appeared to observers to be inclined to strike down Abood and thereby deal a substantial financial setback to public sector unions. A decision will issue later in the year.
3. Radical, pro-violence speech on social media
The 2016 Presidential campaign will no doubt bring vivid rhetoric from candidates on many topics, and it will almost certainly address the extent to which radical ideologies should be permitted to proliferate in the United States by way of social media and the internet. Many blame radical and pro-violence internet speech for the home-grown terrorism perpetrated by the San Bernardino shooters in fall of 2015. Even some prominent legal scholars are calling for another look at First Amendment doctrine as it applies to internet speech promoting violence, or promoting adherence to adversaries of the United States such as ISIS. Many believe that private forums such as Facebook and YouTube have substantial latitude to limit radical speech. This is because the First Amendment only prohibits governments, and not private companies, from restricting free speech. Many legal scholars believe that unless the government somehow prompts or substantially facilitates censorship of speech on these forums, there is no First Amendment issue.
The problem for public agencies and public educators, however, is that they themselves sometimes host social media. For example, a police department may have a space on its website in which the public is invited to comment, or a community college may allow students to set up accounts and post their thoughts on various issues. The police department and community college are bound by the First Amendment and state constitutional free speech principles when they engage in these activities. Accordingly, they will have to work with counsel and carefully evaluate how, if possible, to address radical speech, including hate speech and speech promoting violence, that arises in any on-line fora they host. Case law may appear in this area in the next year clarifying these issues. But it is very likely instead that the public debate in 2016 – informed by actors who are aware of and are striving to understand and apply free speech principles – will take the laboring oar at the outset in trying to balance free speech and safety.
The final issues described in this post apply mostly to educators. First, the concept of “micro-aggressions,” which social scientists developed decades ago, has now become a mainstream concern among college and university students, faculty, and administrators. A traditional definition of “micro-aggressions” is that they refer to “everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership.” They have also been described as “brief and commonplace daily verbal, behavioral, and environmental indignities” that have this effect. An obvious example is a judge who, upon taking the bench and viewing the courtroom, immediately assumes a person of color is a litigant rather than a lawyer. Another example is asking a person who is Latino or Asian if they were born in America or where they were born. Proponents of micro-aggression theory argue that even more minor statements or mis-assumptions, although they may seem harmless, in fact by strength of accumulation impair the performance of persons in protected classifications and create significant inequities in society.
What are First Amendment concerns raised by micro-aggression theory? The initial answer is none, because as a social science theory, and as a principle of responsible etiquette, the expectation that people will steer clear of micro-aggressions does not constitute an attempt to punish anyone for protected speech. The First Amendment considerations arise, of course, when a government institution does threaten to punish individuals for engaging in micro-aggressions, or whenever the theory starts to carry legal weight. It could conceivably carry such weight in the education context in grading of class assignments (if a student was graded down for using micro-aggressions), in personnel decisions as to faculty (if a faculty member was admonished or rated lower for the same reason), and even in making decisions as to whether a hostile work or educational environment exists (although micro-aggressions may not contribute much to the overall analysis, one could argue they should not be considered irrelevant). When micro-aggressions are taken this far, plaintiffs’ free speech lawyers and many legal scholars have substantial concerns.
For further reading on this topic, the following are articles that have drawn substantial attention, from the Atlantic, Washington Post, and Psychology Today.
5. Trigger Warnings and Safe Spaces
These concepts, like micro-aggressions, will likely draw substantial attention from free speech activists and academics in the coming year.
“Trigger Warnings” – one dictionary definition is “a stated warning that the content of a text, video, etc., may upset or offend some people, especially those who have previously experienced a related trauma.” As this concept is being applied in colleges and universities, a faculty member at the beginning of a graphic discussion of sexual assault, violence, hate speech, or other similar matters might be expected to provide a trigger warning to students in advance, and even allow students to be excused from the discussion.
“Safe spaces” – there are varied definitions for “safe space” in education, but common features are that they are physical or virtual places, made available for the benefit of members of the LGBT community, or for persons in traditionally marginalized protected classifications, in which they can expect support for their identity, life choices related to their status, and viewpoints; or in which they at least will not encounter hate speech or discord based on their protected status. The term “safe space” also appears in the context of how colleges respond to sexual assault survivors.
What First Amendment concerns are raised? As with micro-aggressions, if failure to abide by expected practice for trigger warnings and safe spaces leads to censorship of speech at a public institution, then there could be violation of the First Amendment. If a public college actually disciplines a student, faculty member, or employee for violating the rules of a “safe space,” for example, merely because the person makes a brusque statement about gender roles or lifestyle choices, that might well be determined to infringe on protected speech. Public institutions can enact rules that restrict speech, but in doing so must be able to demonstrate that the rules serve sufficiently important reasons and that other criteria are met. Also, a public institution’s standards on speech cannot be overly vague. In addition, Courts are very concerned about rules that effectively suppress certain viewpoints, even unpopular ones, and it is easy for rules about safe spaces and trigger warnings to have that effect.
Another First Amendment concern will arise if a public college chooses to expand, by substantial orders of magnitude, the scope of what is considered a “safe space.” For example, a college might designate its entire main library, its central quadrangle, or any social media sites it maintains. This could lead to significant suppression of speech and substantially raise the risk that a Court will find a constitutional violation. Many also think that excessive trigger warning expectations or requirements in university classrooms interfere with the academic freedom of faculty.
For further reading, the following are some prominent articles addressing trigger warnings and safe spaces, from Time and The New York Times.
We will report on substantial developments in all the foregoing areas as they arise.