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.