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.