Iconic CollumnsThis article was originally published in December 2013.  The information has been reviewed and is up-to-date as of October 2023.

The year 2014 will bring important developments in a number of areas of free speech law in employment and education.  The following are five primary areas worth following in the next 12 months:

1.  Anti-SLAPP Motions Creatively Invoked by Public Employers and Educators:

December 2013 saw a surprising new case in the context of anti-SLAPP motions brought in the employment law context.  The case suggests that public entities, including public educators, can use principles of free speech law to defend themselves in employment cases.  In Hunter v. CBS Broadcasting, Inc., the California Court of Appeal held that CBS could assert an anti-SLAPP motion in response to a job applicant’s age and gender discrimination claims.  The case was brought by a male newscaster, Kyle Hunter, who alleged he was denied a job as a weather news anchor because of gender and age.  CBS supposedly sought to hire young, attractive females for the position.

An anti-SLAPP motion is a special motion that can be brought at the very outset of a case if the complaint challenges conduct (be it by a person, a company, or a public entity) that constitutes an exercise of free speech rights.  (SLAPP stands for “Strategic Lawsuit Against Public Participation”).  The motion requires the plaintiff, in response, to prove a “probability” of success in the lawsuit.  If the plaintiff cannot do so, the case is dismissed immediately and the plaintiff must pay the defense attorneys’ fees.  (See Cal. Civ. Proc. Code section 425.16.)  In Hunter, the Court of Appeal held that CBS’s decision who to hire as a news anchor effectively constituted an exercise of free speech rights by CBS, thereby allowing it to assert a motion under the anti-SLAPP statute.

The Hunter case, and its underlying reasoning, will be important to public entities in 2014, because California case law holds squarely that public entities can also assert anti-SLAPP motions if their free speech rights are implicated.  (See, e.g., Hansen v. Department of Corrections & Rehabilitation.)  Does selecting a City public relations manager or other spokesperson constitute an exercise of free speech rights by the city?  What about a city attorney or in-house lawyers who conduct litigation?  If any of these types of employees filed discrimination claims, Hunter might allow the public employer to gain the procedural advantage of an anti-SLAPP motion.  The same is possibly true for selection of faculty by a college, or teachers at a high school, since those types of employees “speak for” the educational institution on a day-to-day basis, both in class and also through their scholarship in the case of college and university professors.

2.  Public Employee Speech Claims:

What happens when a police officer reports through her chain of command that fellow officers are abusing arrestees?  What if a union president states, on behalf of the union representing city employees, that the city manager is a bigot, a grouch, and is killing morale at the city?  If these employees later experience discipline, supposedly as a result of their speech, can they argue the discipline violates the First Amendment?

In 2013, the Ninth Circuit U.S. Court of Appeals in Dahlia v. Rodriguez and Ellins v. Sierra Madre took a leading role in forging the rules that apply in this area of law.  The U.S. Supreme Court has previously ruled that a public employee can assert a First Amendment claim against his or her employer if the employee suffered an adverse employment action after s/he spoke on a matter of “public concern” and if the speech was not rendered pursuant to the employee’s “official duties” (i.e., if the speech was not part and parcel of what the employee was expected to do as part of the job).  Even if the employee meets these tests, the employer can still prevail if the reasons for the employment action satisfy a balancing test of interests.

In the Dahlia v. Rodriguez case decided this past summer, the Ninth Circuit added the following factors to the “official duties” test:  (1) did the employee speak “with individuals or entities outside of his chain of command”?  (2) did the speech constitute “a routine report, pursuant to normal departmental procedure, about a particular incident or occurrence”?  (3) did the speech communicate “broad concerns about corruption or systemic abuse”? and (4) did the employee speak “in direct contravention to his supervisor’s orders”?

In Ellins v. Sierra Madre, decided this past spring, the Court articulated several more aspects of the test.  Ellins held that an employee’s speech on behalf of the union can essentially never be speech pursuant to “official duties,” even though the employee may be carrying out a work-related obligation to fellow employees in so speaking.  Second, the case held that the fact that a group of employees collectively, and not just a lone employee, speaks about a workplace matter makes that matter more likely to satisfy the “public concern” test.  Clearly, both of these components of Ellins greatly enhance First Amendment protections available to employees who speak on behalf of their public sector labor unions.

New cases in 2014 may indicate whether Dahlia and Ellins will work well as instruments for deciding public employee free speech claims.  It may also reveal whether other federal circuits across the country follow the decisions, and whether the U.S. Supreme Court will take an interest in, modify, or adopt the approach formulated by the Ninth Circuit.

3.  Academic Freedom:

What if a college professor teaching a class on the 19th century novel cut out six of the twelve normally taught works and replaced them with science fiction novels, so that the class actually covers only half of the traditional curriculum?  What if a university professor asks his graduate students in a comparative literature class to view and comment on pornography, and later appears in a documentary criticizing his department for censorship and narrow-mindedness?  What if a high school history teacher instructs his class that each significant event of the Middle Ages was the result of divine intervention, and argues he has an academic freedom as a high school teacher to present his sincere view of history?

In 2014, public educators are going to have to deal with the most important First Amendment decision to issue in this area in years.  The Ninth Circuit decided Demers v. Austin this past September.  The Court held that the First Amendment is at least implicated in all of the hypothetical scenarios listed above.  In general, teachers and professors in public educational institutions, like other public employees, can only bring free speech claims if they can show their speech was on a matter of “public concern” and if they can satisfy the requisite balancing test described in the previous section.  The situation for the “official duties” rule, however, is different.  Recall the last section that a public employee’s speech pursuant to “official duties” has no First Amendment protection.  The U.S. Supreme Court’s landmark 2006 decision describing this rule, Garcetti v. Ceballos, set forth the caveat that the Court did not at this point hold that the “official duties” rule applied to the context of “scholarship or teaching.”  The Supreme Court stated that for the time being it deferred exploring application of the rule in that area, because principles of academic freedom raised unique issues.

Demers v. Austin affirmatively held that the Supreme Court’s “official duties” rule does not apply in the context of “teaching and writing” on academic matters at public educational institutions [in January 2014, the Ninth Circuit issued a revised opinion replacing this terminology with “scholarship” and “teaching”]. This means, for example, that if a professor’s employer takes adverse action against the professor for in-class statements, scholarship, or other similar matters, the professor’s First Amendment rights are potentially implicated.  This, in turn, means that administrators possibly can be faced with personal responsibility for violation of civil rights if they are found to have improperly interfered with an instructor’s in-class speech.  If the “official duties” rule applied, however, it would not even be a federal constitutional matter, but instead one resolved by other rules, such as the institution’s own applicable academic freedom policy or memorandum of understanding with faculty.  Demers makes faculty academic freedom rights as against their own employers a federal constitutional matter.

Demers embodies a number of complexities that the courts may confront in 2014.  First, Demers indicates that its holding applies not just to college and university faculty, but other public educators including high school teachers.  This appears to contradict the reasoning of Johnson v. Poway Unified School District, in which another panel of the Ninth Circuit decided that a high school math teacher’s posting of religious banners in his classroom was essentially “government speech.”  This meant that it was effectively pursuant to “official duties,” and thus unprotected.  Second, Demers vastly expands the scope of federal judicial involvement in public education at all levels.  Some scholars view this as a contradiction of the doctrine articulated by the Supreme Court that decisions in this area should avoid “constitutionalizing” public employee grievances.  Third, the decision may adversely impact the court-honored academic freedom rights of public educational institutions themselves, which have traditional rights to choose what is to be taught and by whom, among other things.  The full Ninth Circuit may chose, in the next several months, to confront these issues head-on in 2014 by voting to reconsider Demers v. Austin en banc.  If the Ninth Circuit does so, the case will be reheard by a larger panel of eleven Ninth Circuit judges.

4.  Speech of Students in Public Schools:

How do high school administrators respond when students come to school with t-shirts having Confederate flags or anti-gay slogans?  What if students spread implausible false rumors through social media about teacher sexual misconduct and drug use?  What if a middle school student writes vivid poetry in which he fantasizes about embarking on a shooting rampage at the school?  Can the school discipline these students or act to control the speech, or would doing so violate First Amendment rights?

Courts in recent years have struggled to answer these types of questions, and in the process appear to have become substantially more solicitous of student constitutional rights.  For example, in cases decided in the U.S. Court of Appeals based in Philadelphia, students who created false MySpace profiles of their principals, referring to drug use and sexual promiscuity, were found exempt from discipline, because administrators did not prove the parodies caused a sufficiently substantial threat of disruption.  (J.S. ex rel. Snyder v. Blue Mountain School District and Layshock ex rel. Layshock v. Hermitage School District.)

In 2014, the Ninth Circuit will decide a student speech case that may provide much-needed guidance in this area of the law, but that will also likely create public outcry whichever way it is decided.  In Dariano v. Morgan Hill Unified School District, the Ninth Circuit must determine whether high school administrators violated the First Amendment by barring students from coming to school on Cinco de Mayo with shirts containing the American flag.  The previous year, Caucasian students who displayed the flag in various contexts on Cinco de Mayo had been targets of threatening statements, on the basis that they were showing disrespect to the ethnicity of other students.  The district court upheld the high school’s directive preventing the students from wearing the shirts on that particular day, and the school appealed.  The Ninth Circuit heard oral argument on October 17, 2013, and the Judges appeared, based on their lines of questioning, to disagree on whether to uphold the school’s directive.

5.  Public Records Act Requests:

What if a news organization asks a city to produce all its disciplinary records relating to employee accidents while driving city vehicles?  What if a fringe anti-government website demands that a municipality produce records with the names of employees interviewed by a task force addressing allegations of excessive force in its police department?  Is it relevant if the employer worries that those employees named will suffer retaliation from hackers or local gangs?

The California Supreme Court this year will address these types of questions in the much-anticipated Long Beach Police Officers Association v. City of Long Beach.  There, the Court will decide whether exemptions to the California Public Records Act allow a police department to refuse to disclose, in response to a Public Records Act request, the names of peace officers involved in on-duty shooting incidents.  (Liebert Cassidy Whitmore has prepared a friend of the court brief in that case.)  A decision is expected in 2014.  The Court also has on its docket Federated University Police Officers Association v. Superior Court, a case involving a Public Records Act request pertaining to the U.C. Davis pepper-spraying incident.  Guidance in this area of the law is certainly needed, as last year appeared to see an increase in the news organizations’ demands to municipal governments under the Public Records Act.

We will keep you posted on 2014 developments in these areas of the law.