2012 promises to be a significant year for freedom of expression in America, not only because protest movements are expanding across the country in various forms, but also because 2012 is an election year. And, it will not be just any election, but one involving a “show down” of forces that have railed against each other for years, with rising intensity.
The coming year will also bring significant developments in First Amendment law as it applies to public employers and to educators. The following are six primary areas worth watching:
1. Camping and “Occupying” as Protected First Amendment Activity: Because some public educators are being asked to permit camping on their property as a form of protest, educators will have to watch closely for decisions in this area of the law in 2012. The forcible removal of a number of occupied camps has led to litigation over the question of whether city actions, and the regulations on which those actions were based, violated the First Amendment. Under Supreme Court precedent, symbolic conduct itself can qualify as expressive activity meriting First Amendment protection. The Occupy movement and others have argued that camping on public property now constitutes a mode of expression that should be afforded heightened constitutional protection. There is, however, already U.S. Supreme Court precedent, the 1984 decision Clark v. Community for Creative Non–Violence, providing that the government may prohibit overnight camping on public property even when the camping is for expressive purposes (in that case, to bring attention to the plight of the homeless). This fall, a number of district courts addressing Occupy challenges have already applied Clark to enforce government restrictions on overnight camping determined to be content-neutral and reasonable. Attorneys for protestors nevertheless continue to challenge government enforcement of such regulations, and, it can be argued, they now have more than twenty-five years of precedent since Clark to use to justify a different result consistent with that case’s reasoning. Significant appellate decisions in this area will likely issue next year.
2. First Amendment Protection for Falsehoods: The U.S. Supreme Court will decide soon the unique case of United States v. Alvarez, which concerns the extent to which the First Amendment protects speech that is false. Alvarez concerns the constitutionality of the Stolen Valor Act, which prohibits individuals among other things from falsely claiming they have won U.S. military distinctions. The defendant, when speaking in his capacity as a water district board member, falsely boasted that he had received the Congressional Medal of Honor. He was subsequently convicted for violating the Stolen Valor Act. The U.S. Court of Appeals for the Ninth Circuit (covering California) found that the statute did not pass a “strict scrutiny” standard of review under the First Amendment. Some judges on the Ninth Circuit, however, expressed the view that the statute, in fact, is constitutional, primarily because speech that is false cannot have First Amendment protection. They also reasoned that prohibiting false speech does not, except in narrow circumstances, have an excessive chilling effect on protected speech. The Supreme Court recently decided to review this case.
A holding by the Supreme Court that false speech can have direct or indirect First Amendment protection may prompt public employees to make free speech retaliation claims in more sets of circumstances. For example, a broad Alvarez holding could inspire an employee disciplined for knowingly or recklessly wrong speech to claim the speech nevertheless has First Amendment protection precluding discipline, or that the agency rule at issue chills even truthful speech, under expansive Alvarez reasoning. A clear holding by the Supreme Court that false speech as a general principle lacks constitutional protection would help rule out those types of claims, which in most cases would likely lack merit in any event given the substantial harm false statements can cause in work at public agencies and in schools.
The Alvarez case is thought to present a close question, however. For a vivid discussion of supposed First Amendment dangers in statutes like the Stolen Valor Act, see Chief Judge Kozinksi’s concurrence in the Ninth Circuit’s denial of rehearing, which invokes the specter of the “truth police” and lists scenarios in which a “utopia” that allowed criminal prosecution of any falsehood would be “terrifying.” The U.S. Supreme Court oral argument next year and the Court’s opinion will receive substantial attention from academics, lawyers, the press, and the public.
3. The Definition of “Official Duties” for Purposes of Public Employee Free Speech Claims: Federal courts of appeal will probably also provide a more detailed analysis of what constitutes “official duties” for purposes of free speech claims by public employees. In 2006, the U.S. Supreme Court held, in Garcetti v. Ceballos, that a public employee cannot assert a free speech claim against his or her employer if the speech at issue was rendered pursuant to “official duties.” Since 2006, courts across the country have developed sometimes conflicting standards for applying Garcetti. Some courts, notably the Second Circuit (encompassing New York), have recognized “official duties” to encompass basically anything the employee does in the work context to advance his or her generalized job goals. In Weintraub v. Board of Education, the standard was considered to include a teacher’s wholly voluntary act of filing a grievance regarding working conditions. This broad definition of “official duties” may be adopted in the next year in other circuits as well.
4. Academic Freedom and “Official Duties”: In Garcetti, the Supreme Court left open the issue of whether, and if so to what extent, the “official duties” test applied to professors in colleges, universities and other institutions in which educators are traditionally thought to have academic freedom. The Court sought to defer to another day a decision on whether, for example, the “official duties” test meant that a university professor would lose the ability to assert First Amendment free speech rights based on the content of the professor’s scholarship or classroom lectures. The issue has received substantial attention from commentators, and courts will likely issue important guidance in this area of the law in the coming year.
5. Student Speech in Social Media: In a pair of decisions, Blue Mountain School District v. Snyder and Hermitage School District v. Layshock, the U.S. Court of Appeals for the Third Circuit (which encompasses Pennsylvania, New Jersey, and Delaware), recently held that crude parodies created in social media by a middle school student and a high school student, respectively, to ridicule their schools’ principals had First Amendment free speech protection that precluded any discipline of the students, where the parodies were created off-campus did not create sufficient actual or threatened disruption at the schools. There is a good chance the U.S. Supreme Court will decide to review one or both of these highly publicized cases, to resolve when student social media use can lead to discipline consistent with free speech principles. Even if the Court does not grant review, a number of decisions in the lower courts are making their way to the appellate level on this subject, and it is expected that a number of touchstone decisions will appear in 2012 on the issue of student social media use.
6. The Ministerial Exception (for educators as employers): In EEOC v. Hosanna-Tabor Evangelical Lutheran Church, the U.S. Supreme Court will decide whether a teacher at a religious school is exempt from federal and state employment laws under the “ministerial exception. The exception, rooted in the First Amendment’s free exercise and establishment clauses, allows religious organizations, including private religious schools, to make employment decisions for those who are “ministers” without regard for most state and federal employment laws. Courts have found the exception applicable to Title VII, harassment laws, and even wage and hour laws. The exception rests on no statute, and is entirely the creation of the judiciary.
In Hosanna-Tabor, a Lutheran school argued that one of its teachers of primarily secular subjects, who also had some religious duties at the school, qualified as a “minister” under the exception, so that the teacher could not proceed with a disability discrimination claim. The EEOC, however, argued that the school had attempted to extend the exception too far, and that the school’s rationale for who qualified as a “minister” could apply the exception to almost anyone employed by a religious school. The U.S. Supreme Court heard oral argument in October 2011, and a ruling is expected soon that will help define the exception’s scope.