California Public Agency Labor and Employment Blog - Useful Information for Navigating Legal Challenges

The U.S. Supreme Court’s docket is light on First Amendment cases this term.  Nonetheless, the year 2013 may well bring important developments in a number of areas of free speech law in employment and education.  The following are six primary areas worth watching in the coming year.

1. Is a College or University Campus a Public Forum?

 In 2013, both federal and California courts will likely provide additional insight and guidance on the decision this fall by the U.S. Court of Appeals for the Ninth Circuit in OSU Student Alliance v. Ray.  There, the Court determined that the vast majority of the Oregon State University campus was a “designated public forum” for free speech purposes, thus subjecting the University’s attempts to regulate speech on campus to the highest level of judicial scrutiny.  In OSU, individuals acting on behalf of the administration threw away every news bin that contained copies of the student conservative monthly newspaper Liberty, but left the bins of the traditional mainstream student newspaper in place.  Thereafter, the administration placed restrictions on the distribution of Liberty that did not apply to the traditional paper.  The administration later cited an unwritten and unenforced rule that made a distinction between the traditional newspaper and "off-campus” publications.  The Ninth Circuit found the administration’s enforcement of the rule arbitrary and improper.  It described that it had “little trouble finding constitutional violations” in the University’s treatment of the conservative paper. 

The facts of OSU are clearly unique.  In reaching its holding, however, the Court employed some reasoning that could have more general repercussions.  In particular, the Court found that a written policy by the administration describing that University grounds were in general “open to the public and the University community for speech activities” meant what it said.  The result, under the facts of OSU, was that much of the campus had to be considered a “designated public forum.”  This, in turn, meant that the administration had to show a considerably higher level of government interest in regulating speech for many areas of the campus.

Many colleges in California take a more cautious approach, and describe in their written policies that their campuses are “non-public forums,” i.e., a type of forum under free speech law which may more easily be regulated.  These colleges provide free speech areas or zones in which students and others can engage in a full range of expressive activities.  As a result of OSU, however, public colleges and universities with less clear written policies may become subject to criticism for attempts to implement free speech areas or zones, or otherwise restrict student speech.  U.S. District Courts or possibly another Ninth Circuit decision may issue in 2013 further developing the principles formulated in OSU.

2. Injunctions against Union Picketing:

The California Supreme Court will soon issue a decision in the most significant free speech case on its docket, Ralphs Grocery Co. v. United Food and Commercial Workers Union.  There, the Court will consider the constitutionality of the 1975 Moscone Act and related statutes which impose substantial procedural hurdles on employers who seek injunctions against picketing and other activities relating to any “labor dispute.”  Among other things, employers must prove at a hearing with live witnesses that unlawful acts have been threatened and will be committed unless restrained, and that law enforcement has been “unwilling or unable to furnish adequate protection.”  The Supreme Court will decide whether these statutory requirements constitute a violation of the First Amendment by effectively requiring private organizations to host speech with which they disagree, and by giving preference to particular viewpoints.  The Court of Appeal in Ralphs Grocery found the Moscone Act and related statutes to violate the First Amendment.  The California Supreme Court heard oral argument on the case October 3, 2012, and commentators have viewed the questioning from the Justices as signaling that they are striving to determine a way to uphold the Moscone Act.  (The case also involves the issue of whether the free speech guarantee in the California Constitution, which can apply even to private property, afforded the union a right to engage in speech activities in front of the Ralphs store, on the basis that the area was a “public forum.”)  A decision is expected very soon in 2013.

3. Law Enforcement and “Official Duties”:

In 2013, appellate courts may also provide a more definitive answer on the scope of “official duties” for law enforcement personnel, and by doing so further clarify in how many situations such personnel can assert First Amendment claims against their employers.  In 2006, in Garcetti v. Ceballos, the U.S. Supreme Court held that public employees who speak pursuant to their “official duties” have no First Amendment protection for the speech at issue.  (An example might be a building inspector trying to assert a free speech claim based on opinions in his inspection report, even though his government employer was paying him, as part of his “official duties,” to create the report in the first place.)  In California, the U.S. Court of Appeals for the Ninth Circuit has repeatedly interpreted the Garcetti “official duties” of police officers, sheriffs, and other law enforcement personnel as encompassing a duty to report crime by anyone, in any context.  This includes reporting potentially illegal activity of colleagues or superiors in their own department.  Thus, it is very difficult in California for peace officers to state whistleblower claims regarding their own employer and have those claims qualify as First Amendment claims.  Decisions from California that set forth this rule include the 2009 case Huppert v. City of Pittsburg and the 2012 case Dahlia v. Rodriguez.  Both cases involved whistleblowing activity by police officers regarding alleged misconduct in their own agencies.  In both cases the U.S. Court of Appeals for the Ninth Circuit applied the “official duties” test to find no First Amendment protection.  Next year will determine whether other circuits across the country adopt this interpretation of “official duties,” which has firm roots in a traditional understanding of peace officer obligations.

4. Private Sector Free Speech:

One of the most uncertain areas of free speech law in employment, and one that will certainly receive significant attention in 2013, is the area of employee workplace-related speech in the private sector.  The First Amendment does not apply to the private sector, since private employers are not state actors.  But the U.S. National Labor Relations Act gives private sector employees substantial rights to engage in free speech as part of “concerted activity for mutual aid or protection.”  This protection applies regardless of whether the workplace is unionized, and has recently been interpreted by the National Labor Relations Board (“NLRB”) to protect employees from discipline when they complain to other employees, even if distastefully and inappropriately, concerning workplace-related issues.  Indeed, the NLRB recently determined that a BMW dealership’s “Courtesy Rule” and a Costco policy against employees making any statement that “damages” the company violated the Act because they potentially stifled the “concerted activity” the Act protects.  The NLRB has applied the protection vigorously to employee posts on Facebook and other social media.  This line of NLRB decisions has garnered very substantial attention from commentators and the media. 

There is one fragility in this entire new body of law, however, especially as applied to social media:  It is mainly the creation of the NLRB itself.  No federal appellate court reviewing the “concerted activities” statute has as yet approved of the vast scope that the NLRB regional offices, and the Board itself, have recently accorded it.  Many believe federal courts reviewing NLRB decisions will soon cut back on the new protections available to private sector employee speech, including speech on social media.  In the meantime, commentators continue to express surprise at how the “concerted activities” protection seemingly makes it possible, for example, to shout expletives at the boss, as long as it relates to workplace issues covered by the National Labor Relations Act, or to post numerous types of anti-employer sentiments on Facebook or elsewhere.

5. Political Speech in the Public and Private Workplace:

The year 2013 may also see well-publicized lawsuits in which employees claim their employers retaliated against them for their partisan political views or activities, or for voicing particular ideologies.  In the public sector, employees have a First Amendment right to speak on matters of “public concern,” and they can in many circumstances assert those rights against their employer as protection from retaliation.  In addition, case law is rapidly developing that affords public employees First Amendment protection simply for belonging to particular types of political groups or organizations.  (One example is the recent Barry v. Moran case from the First Circuit, which describes these political association claims.)

In the private sector, again, employees cannot rely on First Amendment protection when it comes to actions by their employer.  However, the California Labor Code (in section 1102) provides that private sector employers cannot influence or coerce their employees in their political views or activities by means of threats of discharge.  In the private sector, the nature of the last election may place particular pressure on rifts between management and employees in the political sphere.  For example, news stories from this fall reported that some large employers sent information packages to employees describing the company’s position on the best ways to vote.)  This type of situation could readily serve as a backdrop for wrongful termination causes of action pursuant to the Labor Code. 

6. High School Student Speech:

Finally, 2013 will likely bring additional federal appellate court guidance on how First Amendment standards apply to the free speech rights of public school pupils, including high school students.  In recent years, young persons’ extensive and very creative use of social media has spawned contentious lawsuits that present the question of just how much the Constitution requires school administrators and the public to tolerate in order to honor students’ free expression.  In 2011, the U.S. Court of Appeals for the Third Circuit in Philadelphia decided two cases that had surprising holdings, J.S. ex rel. Snyder v. Blue Mountain School District v. Snyder and Layshock ex rel. Layshock v. Hermitage School District.  In those cases, the Court held that middle and high school students could not be disciplined for on-line social media parodies of their principals, even though the parodies were highly insulting and no doubt disruptive of those administrators’ day-to-day performance of their jobs.  (One parody involved drug use, promiscuity, and demeaning sexual references to the principal’s wife.)  In the wake of decisions like Snyder and Layshock, scholars and commentators have urged a more conservative approach to student free speech rights, in the interest of allowing schools to curb student-on-student bullying, and in the interest of preserving a more realistic ability to prevent disruption and maintain a safe environment in schools.  Although the U.S. Supreme Court currently has no case on its docket in which it could make a ruling along these lines, further guidance is expected from federal appellate courts, including the Ninth Circuit in California, which has yet to provide a comprehensive ruling on high school student use of social media and the ability of public schools to discipline for such use. 

The year 2013 will no doubt be another interesting and productive one for freedom of expression law.

Update:  On December 11, 2012, the U.S. Court of Appeals for the Ninth Circuit decided to re-hear Dahlia v. Rodriguez en banc.  Accordingly, public agencies can no longer rely on the three-Judge panel opinion discussed above.  A panel of eleven Judges will re-hear the appeal.  The opinion of that en banc panel of the Ninth Circuit will likely prove very important for the First Amendment rights of peace officers in California. 

Several types of First Amendment cases have taken center stage this year, as free speech lawsuits by public employees continue to proliferate.  This post addresses three areas that qualify as “hot topics.”

1. Pressing “Like” on Facebook:  Courts continue to struggle with how to address public employee claims for free speech retaliation based on statements made on Facebook or in other social media.  In theory, such cases should not differ from traditional public employee free speech claims, and should have to satisfy the same elements.  In general, for a public employee to have a constitutional free speech claim, the speech has to address a matter of “public concern” and be made outside of the employee’s “official duties,” among other things.  However, completely novel features of speech on social media – for example, its spontaneous yet permanent quality, its tendency to reach unintended audiences, and its taking totally new forms -- require Courts to re-formulate traditional doctrines of constitutional law.

The latest development is a federal District Court decision from Virginia in which the Court found that a public employee’s mere pressing of “Like” for a Facebook post did not constitute expression protected by the First Amendment.  On April 24, 2012, in Bland v. Roberts, the Court considered the case of a Hampton, Virginia sheriff who allegedly fired a number of employees for conduct that included "liking" the Facebook page of a political opponent.  The Court ruled that the employees could not predicate a free speech retaliation claim on the simple act of “liking” the page.  The Court reasoned: “It is the Court's conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.  In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record. . . .  [¶]  No such statements exist in this case.  Simply liking a Facebook page is insufficient.  It is not the kind of substantive statement that has previously warranted constitutional protection.  The Court will not attempt to infer the actual content of [a plaintiff’s] posts from one click of a button on [the political opponent’s] page.  For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. . . .  [t]he Court does not believe Plaintiffs . . . have alleged sufficient speech to garner First Amendment protection.”

Commentators have criticized the Bland v. Roberts ruling for failing to recognize that “liking” a post constitutes a mode of expression.  It is not clear, however, whether the District Court was making a broader holding about communication on Facebook, or just refusing to draw inferences in that particular case.  

2. Free Exercise of Religion and Delivery of Counseling Services:  Two U.S. Court of Appeals decisions have recently come down considering First Amendment retaliation claims based on the right to free exercise of religion guaranteed by the First Amendment.  Both cases arose in the context of counselors who objected on the basis of religious belief to helping patients with same-sex relationships. 

In a case out of Michigan, Ward v. Polite, decided January 27, 2012, a university counseling program student saw in a patient file that the patient had sought counseling on a same-sex relationship.  She then asked that the patient be transferred to another counselor.  The student was later forced to leave the program on the basis that she asserted her beliefs in a way that violated program standards.  The student sued, alleging infringement of her First Amendment free speech and also free exercise rights.  The trial court granted summary judgment against her, but the Court of Appeals reversed, holding that the case should go to trial on the issue of whether the plaintiff had been forced to leave the program because of her religious beliefs themselves rather than because of the impact her beliefs had on her counseling, if any.  Important to the Court were the facts that the student was willing to see patients who were gay and lesbian, but just not affirm their relationship choices, and that the program’s policy allowed referral/transfers in many other different circumstances unrelated to religion. 

In a case out of Georgia, Walden v. Centers for Disease Control, decided February 7, 2012, the Court reached a different result.  There, the plaintiff, a professional counselor, found while speaking with a patient, that the patient had sought help about a same-sex relationship.  The counselor told the patient that the counselor’s belief system did not allow her to see the patient further.  The patient complained and the department head asked the plaintiff to simply say in the future that she lacked relationship training.  The plaintiff insisted that she had a right to tell her patients truthfully why she could not counsel them.  The Center decided to remove the plaintiff from her contract, and she sued for retaliation based on her assertion of First Amendment free exercise rights.  The Court found that sufficient evidence supported the Center’s decision, and in particular that the Center had not taken its action because of the plaintiff’s beliefs, but because of the manner in which the plaintiff had insisted on applying those beliefs, including needing to inform the patient of them. 

It remains to be seen whether these decisions, Ward and Walden, will be isolated to their particular factual circumstances, or whether they will be the first in a wave of similar free exercise claims in new contexts.

3. The Policymaker Exception:  Third, courts are developing what may prove to be a substantial employer defense to many First Amendment claims – the exception for claims brought by “policymaking” employees.  One court described the exception as follows: it “recognizes that an elected official must be able to appoint some high level, personally and politically loyal officials who will help him implement the policies for which the public voted.  An elected official may dismiss these same policymaking employees if they are no longer loyal, if they oppose his re-election, or simply if the official would prefer to work with someone else.”  See Fazio v. City of San Francisco.  The court described that if the employee is “a policymaker, then . . . his government employment could be terminated for purely political reasons without offending the First Amendment.”  The factors a Court must consider in identifying a “policymaking” position are: “vague or broad responsibilities, relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders.” 

In the last several months, two cases have further developed the exception.  The first is the Ninth Circuit’s decision in Hunt v. Orange County.  There, the Court held that the “policymaker” exception turned essentially on an overarching factor of whether political considerations had sufficient significance in the job duties of the employee in question.  “The essential inquiry” the Court described “is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”  In Hunt the court found that Orange County Sheriff Michael Carona could not rely on the policymaker exception to demote a particular high-ranking employee, William Hunt, who had run against him for Sheriff.  It reasoned: “Here, the record fails to establish that Hunt's party affiliation or political outlook were relevant to the effective discharge of his professional duties.”  Instead, the factual findings were that “Hunt's political statements—which were the basis of his demotion—did not cause, and could not have been reasonably predicted to cause, a disruption in the efficient operation of the department.”  The Court’s opinion interprets the applicable test in a way that appears to make it more difficult for employers to invoke the exception.

The second significant case is from Ohio, and shows a federal trial court’s willingness to interpret the “policy maker” exception broadly in the particular context of human resources employees.  In Dixon v. University of Toledo, an Associate Vice President of Human Resources at the university wrote a letter to a local newspaper challenging a story’s comparison of gay rights to civil rights, and made certain generalizations about homosexuality.  The District Court upheld the termination and found no First Amendment free speech claim.  As a separate and distinct basis for its holding, the Court invoked a version of the “policy maker” exception to First Amendment protection applicable in the Sixth Circuit, which covers Ohio.  (The Sixth Circuit exception applies a presumption in favor of the legitimacy of agency action as to policymaking and confidential employees.)  The Court determined that the employee’s job duties were sufficiently key to the work of the Department that they met the requirements of the test, and that the discharge did not violate the First Amendment. 

How extensively will the “policymaker” exception apply in future First Amendment litigation?  The Dixon case shows that a version of the “policymaker” exception can be invoked even as to employees not at the top level of their department, if the right circumstances are present.  This shows the exception could have versatile application.

This post was co-authored by Michael Blacher

On January 11, 2012, the U.S. Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, in which the Court recognized for the first time the existence of the “ministerial exception” to employment discrimination laws.  That exception allows religious organizations, including religious schools, to make employment decisions affecting “ministers” without being subject to anti-discrimination laws.  The ministerial exception is a judicial creation rooted in the First Amendment’s Free Exercise and Establishment clauses, and has been applied for many years by federal and state courts. 

Most observers of the Court expected it to recognize the exception, as it did.  But the more difficult question was how broadly the Court would view the exception.  That is, who qualified as a “minister?”  The Hosanna-Tabor case involved not an actual “minister” – or priest, rabbi, or other individual with strictly religious duties – but a teacher at a religious school who instructed primarily on secular topics. 

The facts of Hosanna-Tabor are as follows (as reported in our earlier blog post of October 11, 2011 following oral argument in the case).  Hosanna-Tabor Evangelical Lutheran Church and School operates a church and an elementary school.  It has two types of faculty: (1) limited-term “lay” or “contract” teachers and (2) for-cause “called” teachers.  Called teachers must complete a course of religious study and receive a certificate of admission into the teaching ministry.  They receive the title of “commissioned minister.”

In 2000, Cheryl Perich began work as a contract teacher but shortly thereafter changed her status to a “called” teacher.  Her employment duties remained essentially the same.  She taught math, language arts, social studies, science, gym, art, and music.  However, Perich also taught a religion class four days per week, attended a chapel with her class once a week, and led her classes in prayer.

In 2004, Perich went out on disability leave.  The School Board ultimately offered Perich a “peaceful release” agreement wherein she would release claims against the School in return for a monetary payment.  When Perich refused and threatened legal action, however, the Board fired her.  It gave the religious reason (as the Supreme Court described it) that “her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally.”

Perich filed a charge with the Equal Employment Opportunity Commission (“EEOC”) for disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”), and the EEOC decided to litigate the charge of retaliation on her behalf.  The district court determined that Perich was covered by the ministerial exception and granted summary judgment to the School.  But the U.S. Court of Appeals for the Sixth Circuit reversed.  It found that because most of Perich’s job duties did not have a religious character, and because her “primary” functions were secular, the ministerial exception did not apply. 

This week, on January 11, 2012, the U.S. Supreme Court, in a unanimous opinion authored by Chief Justice Roberts, held that the ministerial exception did apply.  The opinion began its discussion by describing that both of the “religion clauses” of the First Amendment (the Free Exercise clause and the Establishment clause) “bar the government from interfering with the decision of a religious group to fire one of its ministers.”  The opinion then recited the history of government interference, or at times deliberate non-interference, in religious organizations’ employment decisions, from the Magna Carta through the Cold War.  The opinion uses this concise narration of history and case law as a prelude to its holding recognizing the existences of the exception.

After acknowledging the existence of a ministerial exception, the Court set about defining its breadth and limitations.  The Court’s noted that “Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree.  We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister.  It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.”

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The rising intensity of political debate in recent years and this fall’s wave of OCCUPY protests nationwide have created unique challenges for public sector employers.  Employers are used to responding to mainstream political disputes in the workplace with the time-tested standby: “Republican or Democrat, it makes no difference, and please just go back to work.”  But now public employers have to contend with a different political landscape, a different level of emotional involvement by employees, and entirely new political causes.  One such cause is the Tea Party movement, one of whose central tenets is the need for a sharp decrease in government spending and in the overall role of public agencies themselves.  Second, on a different axis, the new OCCUPY movement attacks the private sector’s supposed excessive role in government.  This is at least the purpose as articulated by some of the movement’s endorsers, such as film maker Michael Moore, former New York Times writer Christopher Hedges (who quotes literary figures like Albert Camus and W.B. Yeats in support of his economic arguments), and even Harvard law professor Lawrence Lessig (in his new book “Republic, Lost”).  Significantly, although the OCCUPY target for reform is the private sector, it is clear the public sector has had to bear the brunt of its physical effects.  The tents and protests are typically on public property, with City police forces having to dedicate substantial resources to watching out for and responding to any disturbances, and in a few cases to taking even more drastic action.

As to employment law as well, all of this corresponds to increased pressure on public employers to address issues raised by increasing and more intense political activities by employees, both at the workplace and outside on personal time, sometimes through organized protest activities.

How is a public employer to handle increased employee work time spent discussing or even arguing about political issues?

How is a public employer to deal with employees who engage in “cubicle wars” by posting dueling ideological cartoons and slogans at their workplaces? 

How does a City employer respond, if at all, to employees who actively participate in organized protests on public property and identify themselves to the media as a City employees – while at the same time the City’s own police force is struggling to maintain order in the protests?  

Finally, how does a public sector employer respond to the contentions of a discharged young manager who claims that the employer’s reason for the firing was a pretext, and that the real reason was the employee’s actions in advancing ideological goals adverse to the agency?

The answers to many of these questions will come from California statutory laws.  Here are some of them.  As can be seen, most reflect the need to create viewpoint-neutral rules that address the scenarios in advance.  

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On September 12, 2011, in John Doe and Jane Doe v. Silsbee Independent School District, the U.S. Fifth Circuit Court of Appeals in Texas ruled that a high school student will not be required to pay attorney’s fees to the school district for her First Amendment free speech claims, but she will be required to pay attorney’s fees for the claims the Court of Appeals upheld as frivolous. 

This controversial case has been in the spotlight since 2008.  In October 2008, H.S., a cheerleader at Silsbee High School, was allegedly sexually assaulted by two classmates, Bolton and Rountree, at a private party.  The case went to a grand jury.  The grand jury declined to indict either Bolton or Rountree. 

After the grand jury’s refusal to issue indictments, H.S. refused to cheer for Bolton, a Silsee basketball team member, during a varsity game.  H.S. alleged that she symbolically protested and expressed herself by folding her arms or leaving the rest of her squad when Bolton shot free throws.  Following H.S. protest, the superintendent and principal of the high school allegedly pulled H.S. aside and told her to cheer for Bolton or go home.  H.S. refused to cheer for Bolton, and she was kicked off of the cheerleading squad for her refusal to do so.  

H.S. sued, alleging multiple civil rights violations, including being retaliated against for exercising her free speech, due process and equal protection rights.  H.S. lost her case.  As a result, defendants sought their attorney’s fees, alleging that H.S.'s lawsuit was "patently frivolous, unreasonable, vexatious, and utterly without foundation."  The defendants were awarded attorney's fees totaling $38,903.64.

The Court of Appeals reviewed whether the award of attorney’s fees was appropriate.  The Court largely sided with the District Court that had initially awarded the defendants fees.  The Fifth Circuit upheld the lower court’s ruling that the due process and equal protection claims were frivolous and ruled that H.S. had failed to allege sufficient facts to support those claims. 

However, the Court  ruled that H.S. First Amendment claim, where she alleged the high school violated her free speech rights after kicking her off the cheerleading team in retaliation for her symbolic protest, was not frivolous.  The Court found that the defendants had kicked H.S. off the cheerleading team because she refused to cheer.  The question was whether H.S. silent protest was speech protected by the First Amendment.

Although H.S. free speech claim was unsuccessful, the Court of Appeals believed that her argument was not frivolous.  The Court stated that, even if there were a low chance that the audience would understand her protest, H.S. reasonably could have argued that the audience knew the background of her alleged sexual assault, and would have thereby understood the meaning of her symbolic speech.  The Fifth Circuit found that the trial court had erred in concluding that H.S.  First Amendment claims were frivolous.  The Court remanded the case to recalculate the attorney's fees award without the cost of the defense relating to the First Amendment claims. 

If you were a high school teacher, what posters and inspirational items would you put up in your classroom?  What if at your school, “no posters” was not an option, and you were expected to make some personal statement to your students and peers?  The next question you may have to ask is what are the limits your employer can place on what you say?  What rights does the administration itself have in this scenario? 

The U.S. Court of Appeals for the Ninth Circuit is considering this very question in Johnson v. Poway Unified School District, a case that could provide answers not only to this question but to a number of others bearing on what First Amendment free speech rights teachers possess.  The Court of Appeals heard oral argument on May 5, 2011, and will probably issue a decision soon.

The facts of Johnson are as follows.  The Poway Unified School District allowed teachers to place posters and other materials on the walls of their classrooms conveying messages completely of the individual teacher’s choosing.  Examples included anti-war materials and posters of rock musicians Nirvana, Bruce Springsteen, and the Beatles.  Some of the materials appeared to pertain to religion, including: a 35 to 40-foot long string of Tibetan prayer flags with writings in Sanskrit and images of Buddha; a poster of John Lennon and the lyrics to the song “Imagine” (which at one point asks listeners to imagine a world with “no religion”); a poster of Buddhist leader the Dalai Lama; and posters of Muslim minister Malcolm X. 

Bradley Johnson, a math teacher, maintained in his classroom two banners, each approximately seven feet wide and two feet tall.  One, striped in red, white and blue, contained the phrases: “In God We Trust,” “One Nation Under God,” “God Bless America,” and “God Shed His Grace On Thee.”  A second banner quoted from the Declaration of Independence by stating “All Men Are Created Equal, They Are Endowed By Their Creator,” and placed the word “Creator” in all uppercase letters.  Johnson had taught at the school for 30 years.  The first banner had been in his classroom for 25 years, and the second for 17 years. 

There was no evidence of any student complaints about Johnson’s banners.  A fellow math teacher in 2006, however, asked the administration why Johnson was allowed to have them.  The administration, apparently concerned that the banners infringed principles of separation of church and state, followed up and ultimately ordered Johnson to take the banners down.  He responded by bringing a federal court lawsuit, arguing that the administration’s order infringed his free speech rights and other rights.  The trial court agreed with Johnson, and granted his motion for summary judgment. 

The Court of Appeals must now make a choice that may have widespread effects on how to interpret the free speech rights of educators, and how far management rights in this area extend. 

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This guest post was authored by David Urban

The United States Supreme Court just added another important chapter to its continuing interpretation of the First Amendment rights of public employees.  In Borough of Duryea v. Guarnieri, decided Monday, June 20, 2011, the Court held that public employees cannot assert retaliation claims based on the First Amendment right to petition unless their “petitioning” in question involves a matter of public concern.  What qualifies as “petitioning” can be a grievance, or even a lawsuit against the employer, but a constitutional retaliation claim will arise only if the claim involves something sufficiently important to the general public.

Petitioning under the First Amendment is distinct from free speech.  Free speech law in the workplace has had substantial attention from the Supreme Court, and with good reason given the fact that creative employees can argue that almost anything they say at work – from criticizing management to personal banter -- should be protected as “free speech.”  In a handful of decisions over the last several decades, however, the U.S. Supreme Court has clarified that the First Amendment free speech rights of employees are far from absolute.  These decisions, which include Pickering v. Board of Education, Connick v. Myers, and Garcetti v. Ceballos, hold that a public employee can only assert a First Amendment retaliation claim (1) if he or she spoke on a matter of public concern, (2) if he or she spoke effectively as a private citizen rather than as a public employee, i.e., if the speech was not a result of what were already the employee’s “official duties,” and (3) if on balance the government had no adequate justification for treating the employee as it did. 

Given these requirements, the plaintiff in Guarnieri, a Chief of Police, likely could not assert any free speech claim.  His lawyers, however, believed they could circumvent the requirements by utilizing a more obscure provision of the First Amendment – the right to petition.  The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  This last right, they argued, encompassed the right of a public employee to assert lawsuits or grievances on any topic against the employer.  They argued it was not subject to any “public concern” requirement.

The facts of Guarnieri show how versatile an instrument the right to petition could be as a substitute for the free speech right, and how easy it was under plaintiff’s counsel’s view to state a claim against an employer.   The plaintiff Charles Guarnieri was terminated by his borough from his Chief of Police position, but then filed a grievance, prevailed in arbitration, and was reinstated.  After his reinstatement, the borough council issued 11 directives to him in the performance of his duties, which included that he not work overtime without express permission, that he use his police car only for official business, and that he respect the smoke-free policy of the municipal building.  Guarnieri filed a second grievance, objecting to these directives.  He also filed a federal lawsuit arguing that his first grievance constituted a “petition” to the government protected under the First Amendment, and that the directives constituted the borough’s retaliation against him for exercising his right to file the grievance.  The borough later denied Guarnieri $338 in claimed overtime, and Guarnieri added a charge to his federal lawsuit that his second grievance and also the federal lawsuit itself constituted protected “petitions” under the First Amendment.  He argued that the denial of the $338 in overtime constituted another act of improper retaliation for exercise of his constitutional rights.  Guarnieri obtained a jury verdict awarding him compensatory and punitive damages.

The Supreme Court, in an opinion by Justice Kennedy, held that the same “public concern” requirement that applied to free speech claims under the First Amendment applied to right to petition claims.  It vacated the underlying judgment and remanded for further proceedings.  Justice Kennedy’s opinion describes that, in general, “a citizen who accepts public employment” has to “accept certain limitations on his or her freedom.”  “The public concern test was developed to protect . . . substantial government interests.  Adoption of a different rule for Petition Clause claims would provide a ready means for public employees to circumvent the test's protections.”

Justice Kennedy’s opinion provides some explanation of what “public concern” entails.  It appears unlikely the plaintiff can prove, on remand, that the test is satisfied.  “A petition filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context.”  The opinion explains that a petition which involves “nothing more than a complaint about a change in the employee's own duties” does not relate to a matter of public concern. 

The Guarnieri opinion provides several pages acknowledging the importance of the common law right to petition throughout history, beginning with the Magna Carta and including a reference to official petitions in the Declaration of Independence.  The emphasis of the historical discussion is, however, on how important the petition right is to participation by citizens in the process of government.  The opinion implies that it should not serve as an instrument by which public employees simply obtain special leverage over their employers.

Although Guarnieri will save public employers from having to defend against many types of potential right to petition claims, the fact remains that public employers still clearly may not penalize employees simply because they file grievances or lawsuits.  Most federal and state laws that authorize employee private rights of action contain anti-retaliation provisions that can impose severe penalties on employers.  Among other things, Guarnieri acted to limit the extent to which such cases will be considered substantial constitutional lawsuits as well.  

This post was co-authored by Elizabeth Arce

The popularity of social media websites such as Facebook and Twitter have created new and unprecedented challenges for employers.  The New York Times reported recently that even commanders in our Armed Forces have expressed concern about troops playing with iPhones and BlackBerrys when they should be working.  Because the law has not caught up with the use of social media, navigating through issues raised by this technology can be a difficult, complicated and frustrating process for employers.  Further, as we recently reported, employment law enforcement agencies such as the National Labor Relations Board will continue to scrutinize employer social media policies.  Thus, employers can no longer afford to ignore social media.  Both employers and employees should be aware of the following 10 issues raised by this growing medium.  

1.   The Internet is a Public Place.  Employees need to be aware that everything posted on the Internet is either public or can be made public.  For example, although you may set your Facebook account privacy settings as accessible to “friends only,” there is no guarantee that a “friend” will not download the picture, show your page to a “non-friend” or disseminate the picture via email or other social media. at a recent conference addressing social media issues in law enforcement, our partner Melanie Poturica reminded the audience, “Never put in electronic form what you wouldn’t want to be received by at least one million people.”  Employees should exercise common sense and good, ethical judgment when using social media.  They should also consider the power of words and images and think about how they will be viewed by others, including current and future employers. 

2.   The First Amendment Does Not Protect All Internet Speech.  Employees generally believe everything they say on the Internet is protected under the First Amendment.  This is a common misconception.  First, the First Amendment only applies to government employers, thus, employees working for private entities are not protected by the First Amendment.  Second, the First Amendment only protects speech made by an individual acting as a citizen on matters of public concern.  Speech made by employees as part of their job duties or speech that is not about a matter of public concern is not protected.  Additionally, speech that violates the law is not protected.  For example, false or harassing speech can give rise to defamation or harassment claims.  Disclosing confidential information can lead to invasion of privacy claims.  

3.   Social Media May Be Reviewed as Part of Pre-Employment Background Checks.  A prospective employer may legally use social media if the information obtained is publicly available (i.e. not password protected) and is posted by the job applicant (e.g. on Facebook).  However, employers should never create an alias or provide false information to gain access to a website as doing so violates federal and state law.  Employers should also keep in mind that the information is unverified.  Importantly, employers must refrain from using the information for discriminatory purposes.  Employers should only consider information that relates to the applicant’s ability to perform the job, and that could have been legally elicited during an interview.  The best practice is to use a third party or designated individual to conduct the background check and to identify specific job related criteria that will be covered by the background check. 

4.   Content May Be Subject to a Public Records Act Request.  Pubic employers are subject to the Public Records Act (“Act”) in California.  The Act provides that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in the state.”  The term “public records” is broadly defined to include “any writing[s] containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Thus, employees must not open a social networking account using their agency issued email without agency authorization.  Any information related to the conduct of the public agency’s business communicated by a public agency or employee via a social networking site may potentially be subject to the public records act.  Although the Act exempts personnel, medical or other information that would constitute an unwarranted invasion of privacy, no court has yet examined the issue whether information communicated via social networking sites sent through agency-owned property falls within this exemption.    

5.   Separate Work Related Social Media Use from Personal.  Employers should also encourage employees to separate their work related use of social media from their personal use by using privacy settings to restrict access to personal information on private websites.  Both employers and employees should also consider whom to invite or accept into their social network.   These individuals will have access to “private” information that they can easily print, save, or forward to others.  

6.   Personal Electronic Communications May Be Subject to Monitoring.  If an employer provides employees access to its electronic communications resources, such the Internet, computers, and email, it should adopt a policy putting employees on notice that communications on those resources are agency property, are not private and are subject to monitoring.  

7.   Employee Off-Duty Social Networking Use May Give Rise to Discipline.  An employer may discipline employees for social networking conduct that undermines its mission, purpose and credibility with the public.  This can include harassment, bullying or other conduct that affects the agency.  Employees may also be disciplined for social media conduct that violates agency rules or policies or that discloses proprietary information. 

8.   Improper Use of Social Media May Lead to Liability.  Employee postings of confidential information on the Internet such as third party (other employees, personal employee and student information could open employers up to liability for violating privacy laws.  In addition, employees who post negative comments about one another on social networking sites may give rise to harassment, defamation or discrimination claims against the employer.  Finally, information obtained from social networking sites, workplace emails and Internet usage can be used as evidence against the employer. 

9.   Posting Content Anonymously Does Not Necessarily Protect One’s Identity.  Posting anonymously or under a pseudonym will not necessarily protect an author’s identity.  A person seeking the identity of an anonymous user can serve a subpoena on the user’s Internet service provider (ISP), email provider, or web hosts that ask for documents or information that will reveal the user’s identity.  Although the user can attempt to block or quash the subpoena, courts have discretion to allow the disclosure of identifying information. 

10. Social Media Policies Should Be Narrowly Tailored.  Employees have the right to discuss their wages, hours and working conditions.  Thus, social media policies should not be overly broad and must balance the employer’s needs with the right of employees to discuss working conditions.  Properly worded policies may prohibit employees from making disparaging comments unrelated to work, abusive, libelous or obscene statements, and anticompetitive, disloyal behavior.

A session will be conducted on this topic at the annual LCW Public Sector Employment Law Conference to be held March 17-18, 2011 in Newport Beach, CA.  Please click here to view the conference brochure. Additionally, the conference binder, containing all conference handouts, will be available for purchase following the conference. Please visit our website after the conference, or email us if you would like to purchase the materials in either binder or CD format.