If you consume social media, be it Facebook, Instagram, Twitter, or the app of the moment TikTok, you have certainly come across “the Karen meme.”  By and large, “the Karen meme” is an image depicting a middle-aged Caucasian woman, almost always sporting a spiky, short blonde haircut.  “Karen” argues with and is condescending to service

Election day, November 3, 2020, is only several months off.  Almost all agree the election will be historic, with a high-level of public activity anticipated, whether through donations, rally participation, letter writing, buttons, t-shirts, banners, yard signs, word-of-mouth, or social media.  Protests and even civil disobedience are possible.  Election times present unique issues for California

Police Cars.jpgUpdate: 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 below. A panel of eleven Judges will re-hear the appeal. The opinion of that en banc panel of the

CourtHouse2_Small.jpgSeveral types of First Amendment cases have taken center stage this year, as free speech lawsuits by public employees continue to proliferate.  This post addresses three areas that qualify as “hot topics.”

1. Pressing “Like” on Facebook:  Courts continue to struggle with how to address public employee claims for free speech retaliation based on

couthouse-flag.JPGPublic employers in California have a powerful tool available to them in California’s anti-SLAPP statute, California Civil Procedure Code section 425.16.  This availability was confirmed in a recent case named Vargas v. City of Salinas.  Not much fanfare accompanied the Vargas decision, which issued last November.  But the Court of Appeal’s decision, on constitutional grounds, not to deny public employers access to this statute is significant. 

To understand why, let’s review what an anti-SLAPP motion is.  “SLAPP” stands for “strategic lawsuit against public participation.”  In general, SLAPP suits are understood to be lawsuits filed by a plaintiff to stifle a defendant’s exercise of free speech rights.  The term “strategic” more or less serves as a euphemism for “meritless.” SLAPP’s are considered bogus lawsuits designed only for the purpose of bludgeoning the defendant, and threatening those who wish to avoid being sued, into refraining from criticizing the plaintiff, or from making public statements contrary to the plaintiff’s interests.  Further, the common understanding is that a plaintiff who files a SLAPP knows that, even though it is meritless, it will take months if not years for a court or jury to make that determination.  By then, the defendant will have already been stigmatized by having a lawsuit pending for a considerable time, and been required to spend substantial attorney’s fees to dispose of it. 

California’s anti-SLAPP statute serves as a remedy by targeting these two harms caused by SLAPPS at an early time.  First, it remedies the lingering effect of the lawsuit by allowing the defendant at the very outset of the case to demand that the plaintiff present evidence showing that plaintiff has a “probability” of prevailing.  The court will dismiss the case if plaintiff cannot make this early showing.  Second, the statute alleviates the financial harm to the defendant by requiring plaintiff to pay the defendant’s attorneys’ fees if the case is in fact dismissed pursuant to the statute.  

If your agency is sued, how can you determine if the lawsuit can be disposed of early under the anti-SLAPP statute?  This will depend initially on whether the lawsuit arises from what the statute defines as protected activity (i.e., the first step of the anti-SLAPP statute’s test).  The fairly broad definition is as follows – a lawsuit will be covered if it arises from any of the following by the defendant: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  

Items (1) and (2) of this definition are of particular importance to public agencies.  They encompass within the scope of the anti-SLAPP statute statements before or in connection with any “official proceeding authorized by law,” regardless of whether the statements relate to a matter of public interest.  An “official proceeding” can include an administrative proceeding, and also an investigation by a public agency in preparation for initiating such a proceeding.  For example, in Vanginderen v. Cornell University, a federal court in California found that anti-SLAPP protection applied to the Cornell University Department of Public Safety’s investigation into the plaintiff’s involvement in alleged thefts, because the investigation was preparatory to the potential initiation of official proceedings against the plaintiff. 


Continue Reading Anti-Slapp Motions As A Litigation Resource For Public Employers

This post was co-authored by Michael Blacher

Supreme-Court.jpgOn January 11, 2012, the U.S. Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, in which the Court recognized for the first time the existence of the “ministerial exception” to employment discrimination laws.  That exception allows religious organizations, including religious schools, to make employment decisions affecting “ministers” without being subject to anti-discrimination laws.  The ministerial exception is a judicial creation rooted in the First Amendment’s Free Exercise and Establishment clauses, and has been applied for many years by federal and state courts. 

Most observers of the Court expected it to recognize the exception, as it did.  But the more difficult question was how broadly the Court would view the exception.  That is, who qualified as a “minister?”  The Hosanna-Tabor case involved not an actual “minister” – or priest, rabbi, or other individual with strictly religious duties – but a teacher at a religious school who instructed primarily on secular topics. 

The facts of Hosanna-Tabor are as follows (as reported in our earlier blog post of October 11, 2011 following oral argument in the case).  Hosanna-Tabor Evangelical Lutheran Church and School operates a church and an elementary school.  It has two types of faculty: (1) limited-term “lay” or “contract” teachers and (2) for-cause “called” teachers.  Called teachers must complete a course of religious study and receive a certificate of admission into the teaching ministry.  They receive the title of “commissioned minister.”

In 2000, Cheryl Perich began work as a contract teacher but shortly thereafter changed her status to a “called” teacher.  Her employment duties remained essentially the same.  She taught math, language arts, social studies, science, gym, art, and music.  However, Perich also taught a religion class four days per week, attended a chapel with her class once a week, and led her classes in prayer.

In 2004, Perich went out on disability leave.  The School Board ultimately offered Perich a “peaceful release” agreement wherein she would release claims against the School in return for a monetary payment.  When Perich refused and threatened legal action, however, the Board fired her.  It gave the religious reason (as the Supreme Court described it) that “her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally.”

Perich filed a charge with the Equal Employment Opportunity Commission (“EEOC”) for disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”), and the EEOC decided to litigate the charge of retaliation on her behalf.  The district court determined that Perich was covered by the ministerial exception and granted summary judgment to the School.  But the U.S. Court of Appeals for the Sixth Circuit reversed.  It found that because most of Perich’s job duties did not have a religious character, and because her “primary” functions were secular, the ministerial exception did not apply. 

This week, on January 11, 2012, the U.S. Supreme Court, in a unanimous opinion authored by Chief Justice Roberts, held that the ministerial exception did apply.  The opinion began its discussion by describing that both of the “religion clauses” of the First Amendment (the Free Exercise clause and the Establishment clause) “bar the government from interfering with the decision of a religious group to fire one of its ministers.”  The opinion then recited the history of government interference, or at times deliberate non-interference, in religious organizations’ employment decisions, from the Magna Carta through the Cold War.  The opinion uses this concise narration of history and case law as a prelude to its holding recognizing the existences of the exception.

After acknowledging the existence of a ministerial exception, the Court set about defining its breadth and limitations.  The Court’s noted that “Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree.  We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister.  It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.”


Continue Reading Supreme Court Recognizes That The “Ministerial Exception” Under The First Amendment Precludes Retaliation Claim Brought Under The ADA

2012.png2012 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.  


Continue Reading The First Amendment In Public Employment And Education – Six Issues For The Year 2012