In light of recent decisions on the government speech doctrine, I asked guest blogger Helen Norton for her reactions to two recent cases. Professor Norton has written important articles on government speech, most recently Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression, 59 Duke L.J. 1 (2009) and The Measure of Government Speech: Identifying Expression’s Source, 88 Boston University L. Rev. (2008)–both are must reads. I am thrilled that she made the time to share her thoughts with us.
Here is Professor Norton’s post:
In Garcetti v. Ceballos, the Supreme Court held that public employees’ speech made “pursuant to their official duties” receives no First Amendment protection because the government should be permitted to “exercise . . . employer control over what the employer itself has commissioned or created.” As I’ve written elsewhere, the Court’s willingness to permit the government to control public employees’ expression by characterizing such speech as the government’s own for which it has paid with a salary – regardless of that expression’s value to the public — has troubling implications for government workers’ free speech rights. Indeed, lower courts now routinely apply Garcetti to dispose of government workers’ First Amendment claims at great cost to the public’s interest in government transparency. These include claims by police officers fired for reporting public officials’ illegal behavior, police officers discharged for detailing health and safety violations, health care workers disciplined for conveying concerns about patient care, primary and secondary school educators punished for describing concerns about student treatment, and financial managers terminated for reporting fiscal irregularities.
Just as troubling, two recent developments illustrate lower courts’ willingness to extend the Court’s emerging government speech doctrine to limit free speech rights far outside of the public employment context. In both cases, courts were quick to define the government’s expressive interests extremely broadly, and quicker still to perceive private individuals’ speech as threatening those interests.
First, the Fifth Circuit recently invoked government speech concerns to justify regulation of student speech. More specifically, it rejected a public high school student’s First Amendment challenge to her dismissal from the cheerleading squad when she failed to cheer for a basketball player that she alleged had sexually assaulted her. In a per curiam opinion by Judges Clement, Garza, and Owen, the panel characterized the plaintiff as “contractually required to cheer for the basketball team,” and thus “as a mouthpiece through which [the school] could disseminate speech — namely, support for its athletic teams.” The panel then cursorily concluded that the plaintiff’s conduct — rather than cheering, she folded her arms and remained silent when the player in question was at the free throw line — “constituted substantial interference with the work of the school . . . .” To be sure, government often has a substantial interest in protecting the message it seeks to disseminate. But a thoughtful analysis in this case would consider whether her silence, without more, posed any real threat to the school’s own expressive interests, and whether any such threat (if it existed) outweighs the First Amendment value of the student’s speech. Unfortunately, the panel’s analysis did neither.
Second, the Supreme Court recently denied certiorari in Weise v. Casper, a case in which the lower court invoked government speech concerns to justify the exclusion of non-disruptive private citizens from an official governmental function based on their viewpoint. That case involved a First Amendment challenge by two individuals who were forcibly ejected from a speech by President Bush that was otherwise open to the public (i.e., not a campaign function) simply because they arrived at the parking lot in a car with a “No Blood for Oil” bumper sticker. The federal district court found no constitutional violation, using language that suggests an enormously broad understanding of government’s speech interests: “President Bush had the right, at his own speech, to ensure that only his message was conveyed. When the President speaks, he may choose his own words.” The 10th Circuit affirmed on qualified immunity grounds, citing – inter alia — the Court’s recent government speech decision in Pleasant Grove v. Summum before concluding that the law is not clearly established as to “how to treat the ejection of a silent attendee from an official speech based on the attendee’s protected expression outside the speech area.”
As Judge Holloway made clear in a vigorous and well-reasoned dissent, however, this should have been an easy case: “On what basis could a representative of the executive branch have thought, on seeing Plaintiffs alight from Ms. Weise’s car with its bumper sticker, that they could be excluded from a public event solely because Ms. Weise had chosen to exercise her most fundamental First Amendment right outside the event and in the complete absence of any indication that Plaintiffs intended to even speak at the event, much less any indication of any intent to disrupt the event?” Indeed, although the government speech doctrine certainly permits President Bush to control the content of his own speech and to refuse to share the event’s podium and microphone with dissenters (or any other speaker), the government’s expressive interests are in no way threatened by the mere presence of parties who may disagree with its views.
Justice Ginsburg echoed this bewilderment in her dissent from the denial of certiorari (joined by Justice Sotomayor): “I cannot see how reasonable public officials, or any staff or volunteers under their direction, could have viewed the bumper sticker as a permissible reason for depriving [the plaintiffs] of access to the event.” She also noted, however, that this particular case (in which the defendant-respondents were volunteers) could be distinguished from still-pending suits against the White House officials alleged to have ordered the ejection – suits that “may offer this court an opportunity to take up the issue avoided today.” Let’s hope so.