Dispatches from the Creation Wars

Good News Employee Assoc. v Hicks

This is a rather interesting case that is getting a fair amount of attention in the Christian media and blogosophere where, predictably, the issue at stake is being exaggerated out of all proportion. The 9th Circuit Court of Appeals heard oral arguments in the case, an appeal of a district court ruling granting the defendants’ motion for summary judgment, this past week. I’ll first show how the case is being portrayed in the media and the blogosphere, then get into the actual facts of the case.

The Worldnutdaily has a report on the case and describes the issue this way:

A special session of the 9th U.S. Circuit Court of Appeals is being held today at the Stanford University Law School where lawyers are arguing whether the words “natural family, marriage and family values” constitute “hate speech” that could intimidate city of Oakland workers.


That got picked up by our old pal Gribbit, who declares:

The 9th Circus Court of Appeals is meeting at Stanford Law School today in a special session to hear arguments concerning the declaration of the words “natural family, marriage and family values” as hate speech. That’s right. Some pinheads on the left coast want the words “natural family, marriage and family values” declared hate speech.

Well, not quite. As usual, the media reports focus on the broadest possible issue and not on the actual legal issue under dispute in the case. California does not have a law against “hate speech”, nor does any other state. The only place such rules exist in the US are on college campuses (and as I wrote recently, I am in favor of an all out legal assault to get such rules declared unconstitutional by the Supreme Court). But the issue in this case is much narrower than that and has little to do with outlawing the advocacy of anti-gay positions.

The particular issue in the case is whether the Constitution requires that employees be allowed to post material in public view in their office that their employer (in this case, the city of Oakland) has deemed to be in violation of their anti-harrassment policies and disruptive to the collegiality of the workplace. The case does not attempt to declare such sentiments “hate speech”, nor would it prevent the plaintiffs from expressing their position in a myriad of other ways; it deals solely with the narrow question of whether the employer can regulate the content of material posted on their public bulletin boards.

Now let’s look at the undisputed facts of the case (both sides stipulated these basic facts, so they are uncontroversial). Two employees of the city of Oakland formed a group called Good News Employee Association to counter what they viewed as city policies that favored gays and lesbians more than they would like them to. They posted a flier on the bulletin board in their city office seeking to have others join their group. The ruling states the facts about the flier:

GNEA’s stated purposes are “[t]o celebrate our Faith and Liberties by preserving the integrity of the Natural Family, Marriage and Family values”; “[t]o provide a forum for people of faith to express their views on contemporary issues of the day”; and “[t]o oppose all views that seek to redefine the Natural Family and Marriage.” In its “Statement of Faith,” GNEA explains that “we believe the Natural Family is defined as a man and a women their children by birth or adoption, or the surviving remnant thereof (including single parents)”; that “[w]e believe Marriage is defined by a union between a man and a woman according to California state law”; and that “[w]e believe in Family Values that promote abstinence, marriage, fidelity in marriage and devotion to our children. ” Plaintiffs’ deposition testimony confirms the anti-homosexual import of their definitions of “natural family,” “marriage” and the meaning of the flyer’s exhortation to “preserve our workplace with integrity.”

The flyer was put up on a public bulletin board in the office near the copy machines, among other places, and it came to the attention of a lesbian employee there, who was quite upset by it. At some point there was a confrontation between her and the plaintiffs and she filed a complaint with her superiors regarding the flyer and about previous instances of distributing anti-gay literature in the office involving the plaintiffs. Two of the managers of the department investigated the incident and were advised by the city attorney to take the flyers down, which they did. That is what prompted the lawsuit from the plaintiffs.

Now, the first thing to remember is that the district court is bound to apply precedent, both from the 9th circuit appeals court and from the Supreme Court. And the controlling precedent in this case is Pickering v Board of Education, a 1968 ruling that requires the courts to apply a balancing test between the right to free expression and the legitimate authority of an employer to keep the peace, so to speak. It requires the court to determine the answer to two basic questions:

1. Does the speech (in this case, the text of the flyer) “touch on a matter of public concern”?
2. Was the content of the speech “a substantial or motivating factor” in the denial of the expression.

The district court answered both questions in the affirmative, without dispute from the defendants. Yes, the issue of gay rights is a matter of public concern, and yes, the viewpoint expressed was the primary factor for the employer in removing the flyer from the bulletin board. Once those questions are answered, then the court must decide “whether defendants have [shown] that their interests as employers outweigh plaintiffs’ interests in making the speech.”

It should be noted at this point that the district court denied the defendants’ motion to dismiss early on in the case, saying that the court did not have enough information to make such a judgment. They allowed both sides to undertake discovery and then file briefs. At that point, the defendants made a motion for summary judgment and, with the additional information, the court then felt it could make a ruling and granted the motion.

The district court cited many higher court precedents to this effect that give wide latitude to employers, including government employers, to regulate the time, place and manner of the expressions of their employees both in the office and in performing the functions of their job:

[Employee] speech [on a matter of public concern] must be analyzed by “the Pickering balance [which] requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.” The Court, quoting Justice Powell’s separate opinion in Arnett v Kennedy, stated that:

[T]he Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency.

In evaluating the government’s interest in preventing workplace disruption, the Court considered the impairment of “close working relationships,” the “manner, time, and place in which [the message] is delivered” and whether the employee’s speech “arises from an employment dispute concerning the application of [office] policy to the speaker.” The Court also emphasized that the government employer did not need “to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.” Taking these factors into consideration, the Court concluded that Myers’ interest in being able to ask the question regarding political pressure was outweighed by the government’s considerable interest in proscribing behavior that “would disrupt the office, undermine [its] authority, and destroy close working relationships.”

As I said, the district court agreed that the plaintiffs had met their burden of showing that the speech being suppressed was a matter of public interest and that it was the viewpoint being expressed that motivated the employer to suppress the speech. The court then had to apply a balancing test and determine whether their interest in that particular forum of expression was outweighed by the employer’s “legitimate administrative interests in promoting workplace efficiency.” Here is how the court stated these competing interests. First, the plaintiffs:

The plaintiffs’ side of the balance is their interest in speaking. This interest is slight, as the restriction placed on their speech under the facts at bar was quite limited: Plaintiffs were prohibited from posting a particular flyer on an office bulletin board. Plaintiffs themselves acknowledge that no restriction has been placed on their speech outside of work (by, for example, threatening them with termination if they speak outside the workplace). They further acknowledge that they can discuss their views with co-workers as they wish at appropriate times (at lunch, on a break).

Plaintiffs further acknowledge that they were told they would be permitted to broadcast the existence of their group, subject to certain editorial restrictions. There are in addition a wide variety of alternative channels available to plaintiffs, and defendants’ policy appears to be the sort of “manner, time and place” limitation that the Court implicitly approved in Connick.

Plaintiffs press the argument that their speech was chilled by Hicks’ circulation to all CEDA employees in late February of AI 71 and a memo reminding them that noncompliance could result in discipline. This, however, does not amount to an adverse employment action and would be germane only to the question of prospective relief. Accordingly, the court finds that, for purposes of retrospective relief, plaintiffs have a limited interest in the suppressed speech.

And then the defendants:

Defendants’ countervailing interest is also modest. As the court’s recitation of the law makes clear, workplace disruption is the touchstone of the employer’s interest in the Pickering balance. Here, there is no dispute that Rederford and Christy’s co-worker Jennings was disturbed by the flyer, nor is there dispute that removal of the flyer was the direct result of the investigation of Jennings ‘ complaint. But whether the particular sensitivity of a single coworker amounts to cognizable workplace disruption under Pickering is far from clear. Furthermore, the bulk of Jennings’ disquiet appears to have stemmed from her conversation with Rederford, an event that may have been precipitated by the flyer, but was nonetheless separate from the flyer. That said, the flyer appears to have been the root of a dust-up of sorts in the office — a Pickering disruption writ small.

The investigation of Jennings’ complaint of harassment may conceivably be a form of workplace disruption. There is little detail in the record about the extent (in hours, for example) to which this disrupted Braddock and Wong in the performance of their normal duties, but it is undisputed that their investigation required at least an interview with Jennings, contact with the city attorney and drafting of a brief memorandum report. Of course, this sort of work — smoothing over employee grievances to maintain workplace harmony — is part of a supervisor’s job description. In a sense, Braddock and Wong’s efforts were “all in a day’s work.”

Defendants also urge that the City has an interest in enforcing its anti-harassment policies and complying with state and local anti-harassment law. While these policies doubtless serve noble purposes, the court is not convinced that these policies are independent interests weighing in the public employer’s favor in the Pickering balance, for four reasons. First, the status of AI 71 as official policy pursuant to state law is irrelevant; it should go without saying that the First Amendment is a federal constitutional provision to which state and local laws must yield. Second, the notion of enforcing a policy or law for its own sake is foreign to the Pickering analysis, which requires the court to focus on reasonable predictions of workplace disruption. It may be that the policy or law is aimed at avoiding workplace disruption; but if that is so, then the efficacy of the policy or law — not its simple existence — is the interest that a defendant brings to the court. Third, it is bootstrapping to argue that a public employer has a legitimate interest in enforcing the very policy or law a plaintiff attacks as unconstitutional in its application to him. Indeed, if the policy or law is unconstitutional in some application, the state has no legitimate interest in enforcing it in that context. And fourth, had plaintiffs’ flyer been removed in the absence of actual or predicted workplace disruption — i e, if defendants’ justification was enforcement of AI 71, standing alone — this case would more clearly present as a case of state enforcement of ideological orthodoxy. But as it stands, there is an element of maintaining a reasonably harmonious workplace in the face of strongly held opposing beliefs.

So basically, the district court said that neither side had presented a particularly strong case. Given the numerous alternative channels for expressing their viewpoint to their fellow employees, this particular time, place and manner restriction on one specific avenue of expression was not much of a burden on the plaintiffs’ free speech rights. And given the minimal disruption, a single employee whose response may or may not be justified, the defendants hadn’t made a strong case for the necessity of the restriction either. Here’s how the court resolved the matter:

Having laid out plaintiffs’ and defendants’ competing interests,the court must strike the balance called for by Pickering. Neither side has presented a strong case. But, the facts being undisputed, the court must resolve the question of law posed by Pickering. The interests on both sides are slight: On the one hand, defendants’ restriction of plaintiffs is far from a wholesale muzzling, but on the other hand, the suppressed speech was not patently inflammatory “fighting words.” To be sure, it caused friction in the workplace, but there is a difference between episodes of friction — which are the daily incidents of life in a pluralistic society — and disruption — which impairs the government’s ability to discharge its duties to its citizens. The City must tread carefully when it exercises its authority to suppress its employees ‘ speech.

Because the flyer plainly addresses a matter of public concern, it is defendants’ burden to show that the City’s interest outweighs plaintiffs’ interest. This balance must be resolved in the City’s favor for two reasons. First, plaintiffs’ interest in this particular channel of communication is vanishingly small. It is undisputed that plaintiffs may promote GNEA outside of work and may do so even at work under proper conditions. Plaintiffs do not have a privileged First Amendment interest in communicating their message to their officemates, for their First Amendment rights derive from their status as citizens, not their status as employees. Their right to speak to their coworkers at CEDA is no greater than the right of a citizen at large to speak his message to CEDA employees — which is to say, plaintiffs have little rights at all in the particular channel they chose.

The second reason that defendants prevail is that their response to Jennings’ complaint — removal of the flyer without any adverse employment action against plaintiffs — was a narrowly tailored and proportionate response to the actual workplace disruption or, perhaps better described, distraction. An actual adverse employment action against plaintiffs would very likely not be justified on these facts, and the City would be well to consider this for the future. But the City does have an “administrative interest” in avoiding situations that distract employees from their jobs. Pickering counsels that public employers must, of necessity, be afforded some leeway in fixing their employees’ attention on their tasks, free from upset stemming from public controversies having no bearing on the work of the employer.

I think the last paragraph is very important for avoiding the kind of breathless overreaction coming from, for lack of a better phrase, the religious right. If the employer had engaged in the kind of sweeping action that they suggest when they claim that the case seeks to outlaw the expression of anti-gay views as “hate speech”, the court clearly states that such a policy would tilt the balance against the employer and for the employee under Pickering.

Had they taken any action to fire the employees for their speech, or had they attempted any punishment at all for the expression of their views outside of the office or in any other forum not owned and controlled by the city, those actions clearly would not have been allowed under the circumstances. No, the result is far more narrow and proportionate, saying essentially, “Yes, you may express those views all you want, but your employer owns this particular forum and you have no constitutional right to access that specific forum for the expression of your views.”

Is this an open and shut case? Of course not. You will rarely find such a case when you’re dealing with this sort of balancing test, which is one reason why legal formalists of all types absolutely loathe them. Such balancing tests are quite prone to subjective bias and thus are likely to result in a hodgepodge of inconsistent applications by different courts around the country. I certainly wouldn’t be disappointed to see the Supreme Court take up a case like this and replace the Pickering analysis with something a bit firmer and more objective. But that is not the province of either the district or appeals courts to do here.

I think there is a decent argument to be made that the court weighed the balance incorrectly in this case. The Pickering analysis essentially shifts the burden of proof to the defendants once those two questions are answered. And as I am always in favor of the widest possible latitude for the expression of ideas, even – perhaps especially – those ideas that are likely to cause controversy, I think the burden should be a serious one that I’m not sure was met here.

As an advocate of Barnett’s presumption of liberty, I think that the burden should always be on the government to show that a given restriction was absolutely necessary to achieve a compelling state interest. In this case, where the entire argument for restriction is based upon the subjective feelings of one individual, I don’t think that burden has been overcome.

One of the unavoidable realities of living in a society that values freedom of expression is that every individual is inevitably going to come in contact with ideas that bother them, upset them, make them angry. In matters of public controversy, in particular, the government should preserve the widest possible latitude for the expression of all ideas regardless of how much they might upset those who oppose those ideas. And if they are going to allow one side to express their viewpoint in a given forum, they should not then suppress the expression of contrary ideas.

But as I said, this is one of those cases that is very fact-dependent. It’s also a close call, with compelling arguments to be made on both sides. And certainly one can disagree with the outcome, as I do, without wildly exaggerating the scope of the ruling. The ruling addresses a very narrow question of a particular type of time, place and manner restriction. No one is suggesting the building of gulags here.

Comments

  1. #1 SLC
    February 19, 2007

    There is another issue here, namely did the posting of this flyer create a hostile work environment? Having been the subject of such a complaint, I can testify that employers are taking a hardline position in this regard and, at least in some jurisdictions, the courts are backing them up.

  2. #2 Ed Brayton
    February 19, 2007

    SLC wrote:

    There is another issue here, namely did the posting of this flyer create a hostile work environment? Having been the subject of such a complaint, I can testify that employers are taking a hardline position in this regard and, at least in some jurisdictions, the courts are backing them up.

    The problem I have with such a standard is that it’s nearly impossible to define coherently. I don’t think anyone would deny that there are many ways in which a work environment could be hostile to the point of being a serious problem, but it’s also far too easy (and far too common) for this accusation to be made only because someone said something they disagree with. One of the things we need to put into any civics classroom, from a very early age, is this: living in a free society guarantees that you will inevitably encounter people expressing ideas that you don’t like. And you’re just gonna have to deal with it.

  3. #3 Matthew Young
    February 19, 2007

    Was there not an indirect threat, or a call for active discrimination, implicit in the text of the flyer?

    Plaintiffs’ deposition testimony confirms the anti-homosexual import of their definitions of “natural family,” “marriage” and the meaning of the flyer’s exhortation to “preserve our workplace with integrity.”

    Am I reading that right, because that seem to say to me that they are exhorting their employer to ‘sack all gays’? If that’s the case then surely they are luck not to be sacked as surely that is as discriminatory and unacceptable as someone posting flyers saying ‘sack all niggers’. The only real defence in this case is that it is implicit rather than explicit, but according to the paragraph above they admitted it themselves.

    Assuming I’m reading it correctly, of course because it’s not made all that clear.

  4. #4 Ed Brayton
    February 19, 2007

    I don’t think it’s reasonable to call what they wrote a threat, implied or otherwise. They’re advocating a political position. You and I don’t like that political position, of course, but that doesn’t make it a threat. Being against the Equal Rights Amendment doesn’t mean you’re making an implied threat toward women, and calling for an end to discrimination laws, while others may disagree with it strongly, is hardly so outside the boundaries of political discussion that it can reasonably be considered a threat.

  5. #5 David C. Brayton
    February 19, 2007

    It seems that your position (the government must show a compelling interest in order to limit speech) is based mostly on the fact that the government is the employer. Should I assume that you disagree with the Pickering>/i> standard?

    I agree with you/Barnett when it is the government acting as a government, not as employer. Having worked in both private and public agencies, my experience is that when the government acts as an employer, it needs to be able to act as any other employer. I agree with Justice Powell as cited above

    When I was at the DAs office, I was in a group of 100+ people and it was just like any other office I had been in. There were smart, hard working people and real loony employees that felt they were on a mission to change the world. Office discipline and focus was just as important there as it is in any private employer context. And this is even more true at a government agency because there is no ‘bottom line’ or ‘balance sheet’ that makes performance abundantly clear.

    If the DAs office had to meet a strict scrutiny test for every decision it made that impacted an employees speech, things would immediately break down. There are just so many things that strict scrutiny test would allow that a would be unreasonable in a workplace.

    One other question, where in the world did the Good News Employee Assoc get the money to litigate such a narrow, muddied issue at the appellate level? It seems that someone was itching for a fight when the formed this organization.

  6. #6 SLC
    February 19, 2007

    I don’t think it is necessary to actually threaten anyone to create a hostile workplace. For instance, if I posted a flyer saying that rape should be legalized to keep the bimbos in line, even though I haven’t threatened to rape anybody, that would certainly be construed as an inflametory statement almost guaranteed to create a hostile work environment. Another example would be if I posted a flyer stating that homosexuals should be given the Eichmann treatment; even though I haven’t threated to kill anybody, that would also be guaranteed to create a hostile work environment. Just because the line is fuzzy, doesn’t mean that there can’t be a line.

  7. #7 Matthew Young
    February 19, 2007

    Well this is why religious arguments relating to ‘sin’ of any sort tend to produce fireworks. Basically, if you are describing something as a sin you are saying that the sinner will burn in eternal fire and implying that this is what they deserve for being a sinner. This may be a fictional threat, but it is still an inflammatory thing to say about someone. For starters, what’s the difference between implying that you deserve to roast in God’s eternal fire and that you deserve to be burned to death right here on Earth? It’s still another person saying that you personally deserve to be tortured indefinitely.

    Hence, were I a homosexual I would find the sort of behaviour of this group more than inflammatory, I would find it openly and aggressively hostile as it effectively defines you as an un-person.

    I am not even gay and I feel this way on behalf of the people I am friends with who are, heaven knows how it must make you feel if you are gay and people go around describing you as ‘unnatural’ and a ‘sinner’ who will burn in hell and deserve it.

  8. #8 Ed Brayton
    February 19, 2007

    David wrote:

    It seems that your position (the government must show a compelling interest in order to limit speech) is based mostly on the fact that the government is the employer. Should I assume that you disagree with the Pickering>/i> standard?

    I agree with you/Barnett when it is the government acting as a government, not as employer. Having worked in both private and public agencies, my experience is that when the government acts as an employer, it needs to be able to act as any other employer.

    That’s an interesting argument, and yes I was basing my analysis at least partly on the fact that the employer in this case is the government. If the employer was private, then there would be no question that they have a right to tell an employee what they can and can’t post in their office. As far as Pickering is concerned, I’m torn. I don’t particularly like balancing tests, but I also recognize that sometimes they may be necessary where two interests clash.

  9. #9 Ed Brayton
    February 19, 2007

    SLC wrote:

    I don’t think it is necessary to actually threaten anyone to create a hostile workplace. For instance, if I posted a flyer saying that rape should be legalized to keep the bimbos in line, even though I haven’t threatened to rape anybody, that would certainly be construed as an inflametory statement almost guaranteed to create a hostile work environment. Another example would be if I posted a flyer stating that homosexuals should be given the Eichmann treatment; even though I haven’t threated to kill anybody, that would also be guaranteed to create a hostile work environment. Just because the line is fuzzy, doesn’t mean that there can’t be a line.

    Of course your two examples would legitimately be a hostile work environment that should be actionable, but they hardly compare to this situation. I would turn your last line around: just because some cases are clearly over the line doesn’t mean that every time someone says they’re bothered by something, someone else should be told to shut up. My whole point was that this case is a much closer call; comparing it to someone saying someone else should be raped or slaughtered doesn’t illuminate the situation at all.

  10. #10 Ed Brayton
    February 19, 2007

    Matthew wrote:

    Well this is why religious arguments relating to ‘sin’ of any sort tend to produce fireworks. Basically, if you are describing something as a sin you are saying that the sinner will burn in eternal fire and implying that this is what they deserve for being a sinner. This may be a fictional threat, but it is still an inflammatory thing to say about someone. For starters, what’s the difference between implying that you deserve to roast in God’s eternal fire and that you deserve to be burned to death right here on Earth? It’s still another person saying that you personally deserve to be tortured indefinitely.

    You may well be right that believing that is barbaric and absurd, but it’s their religious view and everyone has the right to express their views whether you and I like it or not.

  11. #11 Tulle
    February 19, 2007

    The whole thing seems like a lot of people over reacting. I would have just posted right below that I was starting a new group as well that was….

    “[t]o celebrate our Freedoms and Liberties by expanding the legal definition Family, Marriage and Family values”; “[t]o provide a forum for people to express their views on contemporary issues of the day”; and “[t]o oppose all views that seek to deny rights of Family and Marriage to all.”

    And leave it to the “faithful” to bitch and complain (as I know they would) and then “compromise” by both parties to remove their fliers. But that’s just me and my style. Nothing scares these types more than exercising the same freedoms that they do.

  12. #12 Trinifar
    February 19, 2007

    “everyone has the right to express their views whether you and I like it or not”

    Yeah, but not in every venue. Strange as it may seem, when I’m at work I want to be focussed on work and I want the people who report to me to be focussed on work. I don’t see the workplace — government or private — as the same as the public square. Provision should be made for union organizing as that is directly related to work, but allowing the promoting of any view on anything strikes me as absurd — and insulting to the people who want to work well and hard and get on with the rest of their lives.

  13. #13 Dan S.
    February 19, 2007

    . . .we believe the Natural Family is defined as a man and a women their children by birth or adoption . . .

    But what’s so natural about adoption? (I know, I know . . .)

  14. #14 Tulle
    February 19, 2007

    Dan, I am surprised, everyone knows it is natural as long as the people raising children are of different genders. I wonder what they would have said about my mother’s sister and her children moving in with another of her sisters and raising her three children after her husband died? I guess it would be a natural family since they did not have sex and slept in different bedrooms. I think the rule is that it is a natural family as long as noone in the family is having a same-sex sexual relationship (like the kids care, as long as the PS/2 is working.)

  15. #15 Trinifar
    February 19, 2007

    One more thought. When I was a manager in a large corporation I was personally responsible for any occurance of workplace harassment occuring in my presence — due to state law and corporate guidelines. That is, not only could the offended party sue the corporation, they could sue me too and the cost of legal defense would be born by me. My group consisted of very intelligent people of both genders and every sexual orientation from a variety of countries and ethnic and racial groups. Talk about walking on eggshells.

    Fortunately, incidents were rare — they were great people, but once while having lunch with part of the team, one of the guys mentioned how funny he found the phrase “carpet lickers.” Apparently an episode of The Simpsons had used that phrase the previous evening. The guy in question was from Taiwan and had not been long in the US. Conversation stopped and everyone looked at the lone woman sitting at the table. Lucky for me my boss was present (in our case the highest ranking person carried the responsibility) and asked to speak with “Fred” privately, then checked in with our female colleague.

    Just one anecdote but one I hope shows both the everyday reality of free speech limitations in workplace and the legal responsibility born by workers (even if they are managers or supervisors) to limit that speech. To be clear, I am in favor of such restrictions. The environment where I worked was, in this regard, considered “excellent” by the people who worked there. The legal constraints were a good thing for everyone. Bigotry and intimidation were simply banned by management.

  16. #16 David C. Brayton
    February 19, 2007

    Here are a couple of scenarios that might illuminate the matter. (Both of these scenarios. or at least something similar, were analyzed by the Supreme Court).

    First, an employee wears a shirt to work that says “Fuck the Draft” or “Fuck the Iraq War”. A private employer could fire someone over this. But if the government (for example, the Defense Dept) is the employer, should it be able to?

    Second, an employee wears a rainbow colored arm band to work every day. It really stands out because he is wearing a navy blue suit and a tie. After work, he tells a fellow employee that he is wearing it as a protest against the banning of gay marriage. Could a private employer tell him to take it off while at work? A government employer?

    Now assume that the employee who learned of the meaning starts wearing a shirt that says “It was Adam and Eve not Adam and Steve”.

    These hypotehticals (which are very similar to actual cases) illustrate the need for the government-as-employer to be treated the same as a private sector employer. Work needs to focus on work; it is not a public forum. (Employees of course, must feel free to express their opinion outside of work and not fear retaliation at work.)

    PS: Carpet lickers? Is that anything like a carpet bagger from the 1920s? ;-)

  17. #17 DuWayne
    February 19, 2007

    Tulle -

    I like your style. I think it is a lot better to attack speech we find offensive, with more speech, rather than seeking legal, or other authoritative remedy. While it is necessary to do so when one is threatened or harrassed, in the workplace, I do not think this was such a situation.

    The way it went down, leaves the person who posted the flier, with a sense of righteous indignation – somewhat legitamate. Had the offended party instead, done what you described, either the speech would have been answered, or they would have compromised to take both down.

    Don’t get me wrong. Harrassment is unacceptable. It should not be tolerated and should be taken to the proper authorities – in company, barring satisfaction there, the courts. But many of these sorts of issues, can be resolved far more effectively, in the way you described – or by other similar measures.

    David C. Brayton -

    I agree with you enirely. There is really no reason to have to sets of legal standards to deal with, one for private employers, another for public. It is absolutely pointless.

  18. #18 David C. Brayton
    February 19, 2007

    DuWayne–absolutely pointless may be a bit of an overstatement. The Constitution and the Bill of Rights apply to the federal government (and to the states). Obviously, the government is making the decisions in this case. So then, why shouldn’t the federal government be required to abide by the Consitution?

    The bulletin board where this was posted is a limited public forum. And the type of censorship that occurred was the of the most obnoxious kind–censorship based on the speaker’s viewpoint. So, we do have the City of Oakland abrogating the plaintiff’s free speech rights.

    So, why should the government be allowed to play by two seperate sets of rules? If we as citizens value unfettered free speech, why shouldn’t free speech rights extend into the work place? Especially when the speech in this case was a written statement of a bulletin board. And on a bulletin board that was intended to be public (i.e. any employee could post a notice regarding things other than work). The time place and manner of the speech was appropriate. The only thing that was troublesome was the Good News Employees viewpoint.

    It seems that treating the government like any other private employer can only be justified based on pragatic considerations. I don’t see a way to set up two modes of behavior for the government based on principles found in the Constitution. So, it’s not ‘absolutely pointless’ if unfettered First Amendment rights are more important than efficient government operations.

    Besides, Justice Powell was one of those dreaded activist judges. You know, those kind that think the Consitution is a living document and means different things depending on when it is being interpreted. He dramatically limited the freedom of speech basically because he thought it would be a good idea. ;-).

  19. #19 Matthew Young
    February 20, 2007

    You may well be right that believing that is barbaric and absurd, but it’s their religious view and everyone has the right to express their views whether you and I like it or not.

    Absurb etc is not really my point. I think everyone here believes that. What I am saying is related to, but not necessarily referring to this case. Here, I think the flyer should have been taken down because the workplace is no place whatsoever for this type of discussion for reasons of professionalism – like not talking politics at dinner parties – not because of the content. I don’t think gay pride rally flyers should be up either.

    What I was saying aside from this is that religious disapproval actually carries a little more implied threat than non-religious disapproval. If I think your lifestyle is utterly immoral, then as an atheist all I am saying is that you will have to suffer my frowning and tsk-tsking – hardly a horrifying prospect.

    Virtually all religious disapproval includes the concept of some sort of hell – i.e. eternal torture and suffering. Or of being cast out by god and hence barely human unless you accept whoever the god in question happens to be and whatever of their teachings are under discussion.

    What this implies to me is that a religious person, by their very beliefs, is approving of torture and physical punishment for not being in agreement with them about how life should be lived. Whether that torture is by some fictional being or not is irrelevant, as god is very real to a religious person.

    So I just think that the expression of religious disapproval carries by its very definition a fairly thinly veiled threat – or at the very least a statement of actual, physical hostility – expecially when the person is gung ho enough to write stuff like “preserve our workplace with integrity”. If the person making the statement believes god is real then surely that make it a real threat?

    Now, I know most religious people would laugh that off and say ‘oh gosh, no, that’s not what I meant, however did you get that idea? Gay Steve is such a nice fellow I can’t possibly believe a just god would send good people to hell.’ but that is pretty clearly not what this lot believe and a pretty willful misinterpretation of biblical teaching.

    That lot were basically advocating illegal action – active discrimination against gay people in the workplace – and I am surprised they didn’t at least get a verbal, if not written, warning about that sort of behaviour in the workplace. The equivalent is ‘Blacks go back to Africa’, ‘Send women home to the kitchen – they’ve no place in a professional environment with their babies and their periods’ or ‘No Muslims here thank you’ or anything else you please.

    This has nothing to do with a free speech issue, this sort of nonsense is irrelevant to work and has no place in any office. If someone is directly asked their opinion that’s one thing, but this kind of advertising should come with a written warning and one last chance. How they thought this was at all acceptable in a professional environment is beyond – although they didn’t, did they. They were just spoiling for a fight and some cheap ‘poor wickle christians’ publicity.

    So a/ religious disapproval implies threat to me. The bible says so;
    and b/ that sort of soap boxery has no place in the workplace whatsoever.

  20. #20 Russell Claus
    February 20, 2007

    Is their any justification for ruling against the Good News people simply to discourage petty office squabble being turned into court cases? Should the lesbian have lost had she had the gall to sue over this?

  21. #21 raj
    February 21, 2007

    Um, I fail to understand the significance of this case. An employee posted something on a company bulletin board, somebody else complained, and it was removed, and the original posters sued over the removal. That’s the gist of it.

    The company owns the bulletin board, so, as far as I can tell, the company should be able to determine what’s posted there.

    Let’s go down from there.

    Company is the government. Why should there be any difference between the company as a private company and the company as the government? The company as the government was not removing the employee because of the posting, and the company as the government was not discharging the employee because the posting was elsewhere, which was the issue in the “precedent” in Pickering.

    I would understand the issue if the company/government tried to silence the posters in other venues, but it did not. So what is the issue?

    Note to David Brayton: a company bulletin board is probably not a “limited public forum.” If only because it is not “public.” It was probably limited to the employees, which are certainly not “the public. If you really believe that “limited public forum” includes a bulletin board on company property, a preposterous notion, then it is time to get rid of the “limited public forum” charade. The doctrine never made any sense, regardless.

  22. #22 Anthony
    June 12, 2007

    I’m late to the party, but:

    The Washington Times article states

    The dispute began in January 2003, when the two Oakland employees created a subgroup at their workplace called the “Good News Employee Association.” It was partly in response to a group of homosexual employees having formed their own group 10 months before and being given access to the city e-mail system. One e-mail, dated Oct. 11, 2002, invited city employees to participate in “National Coming-Out Day.”
    When several employees asked whether such a posting was legitimate city business, they got an e-mail from City Council member Danny Wan, reminding them that a “celebration of the gay/lesbian culture and movement” was part of the city’s role to “celebrate diversity.”

    That significantly backs up the contention that the City of Oakland had engaged in content discrimination. Several employees had found pro-gay postings on the bulletin board to be “a distraction” (to use the Court’s language), but the City had ruled that the complainants had no case. Absent that previous action by the City, I’d agree more with the Court.

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