constitution_against_flagPart I

The year 2015 will likely be a stand-out year for new developments in First Amendment law.  The end of this year has seen free speech at the top of the news on a near-daily basis.  Protests of police department practices, sparked by events in Ferguson, Missouri and New York City, swept the country this fall despite unusually cold conditions.  The protests were marked by civil disobedience, with California cities like Los Angeles and Oakland scoring very high nationwide in number of arrests.

But while events like these, including protests in support of urgent causes, will likely continue to take up headlines in coming months, there are a number of significant legal issues that have been under development in the American judicial system that will probably be ripe for resolution in 2015.  They may gain less attention, but they will represent significant shifts in the law.  The following are eight such issues:

1. Government Expression:

Some legal academics and commentators take the view that government entities themselves (states, cities, counties, and public educational institutions) have no First Amendment rights.  They take this view even though it is clear governments have the ability and often an obligation to speak in furtherance of the public interest.

In 2015, the Ninth Circuit will hear a case that may answer the question whether the First Amendment protects the speech of government agencies in some way.  The case is Gingery v. City of Glendale, in which the Ninth Circuit will decide whether it was proper for the City to allow a statue commemorating “comfort woman” in one of its parks.  The statue is of a seated Korean woman, with a plaque commemorating the plight of women from Korea, the Philippines, China, and elsewhere described as having been subjected to sexual exploitation by the Japanese military in World War II.  The plaintiffs in Gingery are individuals, one of whom is a Glendale resident of Japanese descent, who believe the statue violates the U.S. Constitution.  They argue the Constitution confers foreign relations policymaking on the Executive Branch, and forbids local governments from speaking out on issues of international relations in the way Glendale has.  The federal District Court dismissed the Gingery complaint on the basis that the plaintiffs lacked standing to bring the suit – i.e., that they were not harmed in any sufficiently tangible way by the “comfort woman” statue.  The Court also found, as an alternative basis for dismissing the complaint, that Glendale’s statue conveyed a message that was actually consistent with United States foreign policy.  In particular, the U.S. government has previously called upon Japan to accept full responsibility for mistreatment of women in occupied territories during World War II.  The plaintiffs have now appealed to the U.S. Court of Appeals for the Ninth Circuit.

In the background of the arguments and reasoning, however, is the question of whether the City of Glendale has its own First Amendment rights, and hence the ability to assert that its expression, by way of the statue, should not be censored by federal doctrine or the federal courts.  There is very little law in this area, but the District Court’s reasoning in Gingery did contain language acknowledging that the statue constituted speech or expression by the City.  The Court’s reasoning further suggested that courts should refrain from interfering with the expression of local government entities.

Importance for Our Clients:  In the Gingery case, the Court of Appeals will define to what extent local governments can speak out on questions relating to international law and international relations.  This issue is not limited to placement of monuments, but can apply to many other forms of local government speech as well.

2. Speech by Public Employees:

In employment litigation, public employees frequently allege that they suffered dismissal or discipline in retaliation for having exercised First Amendment rights – for example, for making off-color postings on Facebook, criticizing management, engaging in union activities, or whistleblowing to government regulators or the press.  2015 will no doubt bring additional significant case law in this area.

Generally, public employees only have limited constitutional free speech rights against their employers.  The U.S. Supreme Court has ruled that they can sue 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” as a public employee, and suffered an “adverse employment action” as a result.  Even if the employee’s claim meets these tests, the employer can still prevail in a lawsuit if the reasons for the employment action satisfy a balancing test between the government interests of the employer and the speech rights of the employee.

A couple of unanswered questions in this area of the law, which Courts could well address in the next year, include, first, to what extent an employee’s engaging in optional activities that foster or improve the employee’s ability to carry out job responsibilities satisfies the definition of speech pursuant to “official duties.”  Some Courts take a broad view of “official duties” in this respect – for example, the U.S. Court of Appeals for the Second Circuit (which covers New York) held in 2010 in Weintraub v. Board of Education that a public school teacher’s filing a grievance over the administration’s failure to discipline a student who misbehaved in his class actually qualified as the teacher’s speech pursuant to “official duties.”  The Second Circuit reasoned that this was because the teacher’s goal in the grievance was to help him do his own job.  It is unclear whether the Ninth Circuit’s “official duties” test is currently broad enough to incorporate this reasoning.

Next, Courts could provide more guidance on what exactly constitutes an “adverse employment action” for purposes of a First Amendment retaliation claim.  The Ninth Circuit just provided some additional detail in a short opinion in the case Thomas v. County of Riverside, decided in August 2014.  The Court held that the following management actions by the County could constitute adverse employment actions: prohibiting the employee in that case from using break time to travel between work sites, removing her from a paid teaching position at a community college, rescinding her previously approved vacation, and removing her from an unpaid position on a committee.  The Court described that adverse employment actions could also include involuntary transfers and investigations.  In other cases in the next year, the Ninth Circuit could provide more detail, or even a further articulation of the applicable test for what will satisfy this element.

Importance for Our Clients:  First Amendment claims, meritorious or not, very frequently appear in employment litigation in the public sector, and arise in many different contexts.  This area of the law significantly affects public employers.

3. Speech by Private Sector Employees: Social Media and Electronic Communications Rules:

The First Amendment binds the government, not private businesses.  Nonetheless the National Labor Relations Act (“NLRA”), a federal law passed in the 1930’s to regulate management-union relations, grants employees of private companies limited, statutory free speech rights as against their employers.  Workers have the rights among other things to engage in concerted activities for their own protection and to communicate with each other regarding wages, hours, and working conditions.  These statutory rights exist regardless of whether the employees are represented by a union.

These rights have gained substantial prominence in recent years because the National Labor Relations Board (“NLRB”), the federal agency charged with administering the NLRA, has rendered a number of surprising decisions in the context of social media.  In highly publicized cases, the NLRB has found that if private businesses promulgate workplace rules on employee social media use that interfere too much with employees’ ability to speak on-line about such matters as their wages, hours, or working conditions, then those workplace rules will violate the NLRA and be void.  In addition, the Board has overturned discipline of particular employees as well, finding that their employers cannot punish them for harshly criticizing and embarrassing management on social media sites.

On December 11, 2014, the NLRB issued another decision in this area that drastically breaks new ground in favor of private sector employees.  In Purple Communications, the NLRB ruled that electronic communications policies that prohibit employees from using the employer’s email system for anything but work are presumptively invalid, because they prevent employees from engaging in Section 7 concerted activity and communications.  If a policy prevents employees from (on their own non-working time) communicating with each other about wages, hours and working conditions, then the NLRB’s view is that this violates Section 7 rights.  Critics of the NLRB Purple Communications decision are decrying that it provides employees a right to use the employer’s own property against it in discussions about workplace matters, and even a right to use the employer-owned e-mail system as a platform for organizing union representation.  Federal courts, however, do have the final say over whether the NLRB’s interpretation of employees’ statutory rights is legitimate, and 2015 may well bring a judicial decision weighing in on this new authority.

Importance for Our Clients: Public sector labor relations are governed not by the federal NLRA, described above, but instead by state labor relations statutes.  In California, the Public Employment Relations Board (“PERB”) has jurisdiction over those state laws.  Although PERB often follows NLRB precedent, on this issue, for whatever reasons, PERB decisions have not yet picked up on the NLRB’s expansive social media decisions.  That said, we do anticipate that PERB will eventually confirm them as the law of the public sector workforce as well, unless the decisions are modified by courts’ rulings on the NLRB cases.  Many commentators do believe that these decisions by the NLRB overstate the statutory speech rights of private sector employees, and 2015 may see judicial decisions that cut back on the very extensive protections developed by the NLRB.  Finally, it worth note that the language of public sector labor relations statutes like the Meyers-Milias-Brown Act (“MMBA”) and the Educational Employment Relations Act (“EERA”) is in fact different from the language of the National Labor Relations Act when it comes to describing worker collective rights.  It is theoretically possible that PERB will pull back from the NLRB’s interpretations, given the differences in statutory language and the numerous other protections for employee speech in the public sector.

4. Government or Individual Speakers:

The U.S. Supreme Court just weeks ago decided to take up a case that poses the following theoretical question: who is the “speaker” when the government hosts speech in particular contexts, and selects which invitees’ messages will be conveyed.  The distinction of who is the “speaker” makes a difference because the speaker is the one whose rights will be protected under the First Amendment.  The case in this area is Walker v. Sons of Confederate Veterans, in which the plaintiffs, including a non-profit organization and two of its officers, argue that the State of Texas should allow them to depict Confederate battle flags on specialty license plates.  Texas has a system of allowing non-profit organizations and others to select plate designs with individually selected expressive messages, within certain prescribed limits.  The plaintiffs argue that in creating this system, Texas has created a “forum” for public expression on the license plates.  As such, plaintiffs argue, Texas cannot discriminate against certain viewpoints or speech in its selection of messages.  In defending the case, Texas has taken the diametrically opposite view – it argues that it is itself speaking through the license plates, by deciding to accept content from individual driver requests.  (See the discussion of the City of Glendale case, above).  Texas also argues that even if the Court adopts the plaintiffs’ “forum” view, it is still legitimate under the First Amendment for the state to prescribe limits against accepting plate messages that “might be offensive to members of the public.”

The theoretical distinction between individual speech and government speech can arise in many circumstances and serve as a very powerful defense to government agencies.  Indeed, the Walker decision will likely rely heavily on the 2009 U.S. Supreme Court case Pleasant Grove City v. Summum.  There, the Court faced a scenario in which a city in Utah had accepted a Ten Commandments monument for one of its parks, as well as other monuments, but had decided not to accept a monument proposed for donation by Summum, a group whose religious views were less mainstream.  Summum argued that the city was bound by the First Amendment and could not discriminate in accepting monuments on the basis of the speaker’s viewpoint.  The Supreme Court evaded the viewpoint-discrimination charge against the City by holding that it was the City of Pleasant Grove itself that was “speaking” by choosing which monuments to accept for donation.  Accordingly, the city could refuse to accept a monument without violating the First Amendment.

Significance for Our ClientsWalker will help determine the extent to which government agencies can use this powerful “government speech” defense in First Amendment cases.  The defense will increase in importance as more governments decide to sponsor platforms or methods by which the public can communicate.

Watch for Part Two of this blog post, which will tackle free speech issues involving cutting edge technology, the internet, and colleges.