This year saw perhaps the largest public protests in American history, one of the most contentious election years, vast public use of social media to achieve political and social goals, and harsh debate on whether government mandates designed to combat the pandemic infringe constitutional rights, including the right to free expression.  Free speech challenges rose to a top priority for public employers and educators, and Courts in 2021 will set groundbreaking precedent in this area.

The following are five significant areas of First Amendment law in which Courts will likely set new precedent in 2021.

  1. Public Employee Speech on Social Media:

What if an agency employee makes public statements on Twitter that harshly and unfairly criticize the agency’s response to the pandemic?  What if a police officer repeatedly jokes on Facebook that he favors harsh use of force against protestors or that he personally might not protect all members of the community in the same way?  Case law will likely develop in 2021 that clarifies when and how public employers can take action in response to such conduct, and when an employee can rely on their First Amendment rights.

Generally, public employees only have limited constitutional free speech rights against their employers.  The United States Supreme Court has ruled that public employees can sue their employers for retaliation under the First Amendment if, among other things, they spoke on a matter of “public concern,” spoke in a way that was not pursuant to their “official duties,” and suffered an “adverse employment action” as a result.  Even if the employee’s claim meets these tests, the employer can still prevail if the reasons for the adverse action satisfy a balancing test between the government interests of the employer and the speech rights of the employee.

In a pending case, Moser v. Las Vegas Metropolitan Police Department, the United States Court of Appeals for the Ninth Circuit (covering Western states including California) will likely clarify how courts should conduct the last element of the test for protection, i.e., the balancing test between government interests and employee speech rights.  In Moser, a Las Vegas police officer was shot and injured when off duty, and the Police Department several days later arrested a suspect.  Plaintiff Officer Moser, employed as a SWAT team sniper for the Department, stated on Facebook he thought it was “a shame” that the suspect “didn’t have a few holes in him.”  The Department believed the officer’s social media statement negatively impacted the agency, and it implemented a disciplinary transfer of the Plaintiff out of the SWAT position to another assignment.  He sued for infringement of his First Amendment rights.

The Ninth Circuit Court of Appeals heard oral argument on September 5, 2020 and questioning from the Court in part focused on whether an agency, to satisfy the balancing test, needed to show threatened or actual disruption of its operations.  The Court questioned counsel on why, regardless of whether co-workers or the public had complained, the employee’s statements on social media in themselves could not show the employee lacked qualification for their job or assignment and in that way tip the balance in the agency’s favor.  The Court signaled that its decision in the case might set precedent more favorable to public employers with regard to the balancing test.  The Ninth Circuit’s decision in the case will issue any day.

  1. Academic Freedom:

Public employee free speech questions take on added complexities for employees serving as college and university professors.  In the Ninth Circuit (again, the appellate judicial district including California), Courts apply a slightly different rule for First Amendment speech protection than the rule for public employees generally.  A professor’s or other educator’s speech as part of his or her “scholarship or teaching” in fact has First Amendment protection, even though it constitutes speech pursuant to the individual’s “official duties.”  (Under the landmark decision Garcetti v. Ceballos, a public employee’s speech pursuant to his or her “official duties” normally lacks First Amendment protection.)  The United States Supreme Court, however, has not decided yet whether the Ninth Circuit has correctly implemented this rule, or instead whether – as with other employee “official duties” speech – speech as part of scholarship or teaching should also lack First Amendment protection so that a public employer can freely discipline an employee for such speech.

The question may be decided in a case currently pending in the U.S. Court of Appeals for the Sixth Circuit, which covers Ohio, Michigan, Kentucky, and Tennessee.  In Meriwether v. Trustees of Shawnee State University, a professor of political science and philosophy alleges that he received a written warning in violation of his First Amendment rights after he struggled in class to interact with a transgender student who asked him to address her in class by her appropriate gender pronoun.  Meriwether argues that his sincerely held Christian beliefs precluded him from referring to the student as “she” or “her.”  The university enforced the applicable non-discrimination policy against the professor, taking the position that he had created a hostile environment in his class for the transgender student.  Meriwether argued his own free speech rights prevented the university from disciplining him.  The trial court, however, rejected his claims and dismissed his complaint, reasoning that the gender pronouns by which he addressed his students in class constituted speech pursuant to his “official duties” for the university, and thus lack First Amendment protection.  On appeal, Meriwether has argued that the same rule applicable in California should apply in Ohio, in particular, that he in fact has free speech rights as part of his “scholarship” and “teaching.”

Once the Court of Appeals for the Sixth Circuit issues its decision in this case, the U.S. Supreme Court might take this case as an opportunity to clarify the law in this area and resolve the issue of whether the rule applicable in the Ninth Circuit, i.e., in California, is correct.  Meriwether has the support of a number of religious liberties groups, and his case has gained notoriety.  This may persuade the U.S. Supreme Court to take up the case to resolve the issue.

  1. Student Speech:

School districts, community college districts, and other public educators often face First Amendment issues when they seek to discipline students who post on social media inflammatory racist, sexist, homophobic, threatening, or otherwise cruel and injurious content.  Under the law federal courts have developed in the Ninth Circuit and a number of others, Courts look to whether the student’s expression has a sufficient “nexus” to the school, in particular whether it creates a disruption or threat of disruption that has a sufficient negative effect on the school’s operations.

The United States Court of Appeals for the Third Circuit, covering Pennsylvania and nearby states, has recently departed from this line of authority.  The Third Circuit has a track record of pro-free speech decisions in the context of education.  In two prominent cases from 2011, J.S. ex rel. Snyder v. Blue Mountain School District and Layshock ex rel. Layshock v. Hermitage School District, that Court ruled that constitutional protection applied to puerile and profane social media speech by students, even when it harshly mocked faculty and school administrators.  (Unlike for public employees, public school student speech does not need to be on a matter of “public concern” to have First Amendment protection.)

In the 2020 case B.L. v. Mahony Area School District, the Third Circuit held, as a matter of first impression, that existing legal rules which allow schools to punish students for sufficient actual or threatened disruption of the learning environment do not apply at all to “off-campus speech.”  The Court described this as “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”  This definition appears to include much student speech that occurs on social media, even if it impacts the school’s operations.

In B.L., the student, frustrated at her lack of ability to advance in cheerleading, posted a short vulgar post to Snapchat dismissive of “school” and “cheer.”  The Third Circuit found that the post, created off campus on a Saturday, could not as a matter of constitutional law expose the student to discipline by the school district.  The school district, having lost the case at the appellate level, has asked the U.S. Supreme Court to review the case, arguing that the rule the Third Circuit has created is too extreme, and does not allow educators enough control over the educational environment.  Many organizations have joined in amicus curiae (i.e., “friend of the court”) briefing to urge the Supreme Court to take up the case.  There seems to be a fair prospect that the Court will in fact take this opportunity to clarify this area of the law.

  1. Speech Areas and Speech Codes on College and University Campuses:

A case pending before the U.S. Supreme Court will shed light on how easily students, employees, and members of the public can make First Amendment challenges to policies in educational institutions.  The opinion will have particular importance for institutions maintaining more stringent policies on “speech areas” or maintaining “speech codes.”

By way of background, some public higher education institutions maintain specific areas on campus where students, employees, and member of the public can engage in such activities as protests, leafleting, circulating petitions, and gatherings for other expressive purposes.  Courts have held, however, that public colleges and universities cannot maintain areas so small and remote that users of the areas cannot reach a sufficiently large audience.  Courts have also invalidated policies that impose many-day wait periods to gain access to the speech area or requiring substantial registration and approval processes prior to use.

“Speech codes” constitute campus rules that seek to avoid conflict and foster collegiality.  For example, they can prohibit students, faculty, and others from engaging in “offensive,” “un-civil,” or “harmful” speech.  Courts have struck down vague language and overbroad requirements in such codes as violating the First Amendment, reasoning that free expression on campus needs breathing space, that some protected expression does in fact lack civility because of the emotions invoked by many important issues, and that the speech codes overall present a chilling effect on free speech.

For someone to make a legal challenge a speech area policy or speech code however, they must have standing to sue.  To have standing, they must generally show they have suffered some type of injury and that their lawsuit will make a difference by correcting a deficient policy or practice of the institution.

The U.S. Supreme Court has taken up an important case, Uzuegbunam v. Preczewski, from Georgia in the Eleventh Circuit Court of Appeals, which will address when and how students have standing to challenge university and college policies.  In practice, some institutions, faced with a lawsuit by plaintiffs who claim that speech codes are improper or that speech area policies are invalid, will simply change the policies and make them more expansive.  Courts will, under the appropriate circumstances, then dismiss the lawsuits as moot, delivering a victory to the educational institution even though the institution may actually have had a constitutionally invalid policy in place.

This is what allegedly happened in the Uzuegbunam case.  A student sought to distribute religious literature and talk to his fellow students about religion outside the free speech areas at their university.  A campus official stopped him from doing so, citing the speech area policy.  Faced with a lawsuit by this student and another who sought to use the speech areas, the university changed the policy to make it broader.  Also, one of the students graduated.  The university moved to dismiss the case as moot, and the trial court granted the motion.  The Court of Appeals found no error, reasoning that that case was moot, and that the plaintiffs’ claims for nominal damages did not constitute a sufficient reason to keep the case alive.  As the losing parties, the plaintiffs could not obtain their attorneys’ fees from the university, even though they and their lawyers could potentially argue that the threat of a lawsuit was what really made the institution change its policies.  In asking the Supreme Court to review the case, plaintiffs argued, as they often do in these cases, that nothing will stop the university from reinstituting the same strict policies years later when the students had gone and no longer have standing to make a legal challenge.

The U.S. Supreme Court will hear argument in the case in 2021, and may issue a ruling that makes it easier for students to sue public colleges and universities, obtain attorneys’ fees awards, and obtain declaratory and injunctive relief.

  1. Social Media Platforms and Government-Hosted Speech:

The last year has seen extensive public debate on how far the right to censor should extend on social media, with some contending social media platforms suppress conservative views and some contending they do not do enough to combat hate speech and misinformation.  Case law will develop in 2021 further clarifying how the First Amendment applies both to the private companies that own and operate social media platforms and the government agencies that host speech on their own pages on those platforms.  Courts have applied different rules in these two contexts.

As to the private social media platforms, civil rights lawyers representing individuals who have posted content later removed by Facebook, Twitter, or YouTube, or who have been blocked by those sites, have argued that social media has such a prominent role in the everyday lives of the public that the First Amendment must provide users some protection from having views censored.  It is a fundamental rule of constitutional law, however, that the First Amendment does not apply to private companies, and the major social media organizations are all private.

Some fairly obscure precedent exists (for example, a  case from the 1940’s, Marsh v. Alabama, involving a privately owned “company town”) which establishes that sometimes the First Amendment does, in fact, extend to private actors.  But the U.S. Court of Appeals for the Ninth Circuit in California rejected that notion for social media in the case Prager University v. Google decided earlier this year.  Prager University did not seek review in the U.S. Supreme Court, but another case against social media companies, Lewis v. Google, is currently pending before the Ninth Circuit, and the plaintiff in that case, a political commentator removed from YouTube for controversial views, has asserted similar First Amendment theories.  The plaintiff may seek to present the issue to the U.S. Supreme Court, and litigants in other circuits may do so as well.

Having the First Amendment apply to social media companies, who have vast social and financial scope, would have far reaching consequences.  It remains an issue to watch, among other reasons for how Courts’ decision making will affect related areas.

Indeed, an important related area is whether and how the First Amendment applies to government-hosted commentary on social media.  Courts have begun to apply First Amendment strictures to government agencies that have their own presence on social media, albeit on platforms of private companies.  Examples include Facebook pages by police departments, or Twitter accounts by public universities.  A number of Courts have held that government actors have to abide by First Amendment standards in decisions whether to censor public comments or block users.  This constitutional rule limiting censorship applies even though those government agencies have to abide by the private social media company’s terms and conditions, which could in theory and under existing law, have restrictions incompatible with First Amendment norms.

The United States Supreme Court may weigh in next year on this issue of how the First Amendment applies to government-hosted social media.  The most notorious case of this nature is Trump v. Knight Institute, in which the Second Circuit Court of Appeals, which encompasses New York, held that President Trump violated the First Amendment by blocking some of his critics from access to his Twitter account.  The Court found that the public comment part of the account constituted a public forum in cyberspace, to which First Amendment free speech principles did apply.  The President has filed a petition for writ of certiorari with the U.S. Supreme Court, and the Court may indicate any day whether it has decided to hear the case.

Our firm regularly handles matters concerning free speech rights in education and public employment, and we will keep you apprised of developments in this area.