Constitutional Cases Involving Teachers

This column describes a case in which a psychiatrist employed at a state psychiatric hospital wrote a series of memos to the hospital board, state officials, and a newspaper describing poor-quality care at the hospital. When his contract was not renewed soon thereafter, he filed suit against the state and two state officials alleging violation of his First Amendment rights of free speech. At a trial in 2004 a jury found that the director of the state's Division of Alcoholism, Drug Abuse, and Mental Health had retaliated against the psychiatrist by declining to renew his contract, thus violating his First Amendment rights. Implications of the case for staff in public mental health systems are discussed.

Freeing a Busker's Free Speech Rights: Impact of Regulations on Buskers' Right to Free Speech and Expression

Background/Context Pickering v. Board of Education, decided by the U.S. Supreme Court in 1968, is considered the high-water mark in the constitutional protection of public employee free speech. Two significant decisions issued by that Court since Pickering have limited public employees’ expressive rights: Connick v. Myers and Garcetti v. Ceballos. Purpose/Objective The principal research questions which were the focus of this study are: is the adverse effect on free speech presumed by legal analysts following Connick and Garcetti having real effects in terms of judicial voting behavior and, if so, how has this occurred? Research Design We set up legal precedent and the judge's ideology as predictors of judicial voting behavior. The legal precedent variable delineates three intervals, namely the Pickering era [1968–1983], the Connick era [1983–2006) and the Garcetti era [2006–2014]. Two different measures of ideology are considered: party affiliation and the judge's DW-NOMINATE score. The dependent variable is the judge's individual vote in each case. Votes are categorized as pro-employer or pro-employee. Data Collection and Analysis Because our interest is specific to K–12 settings we analyze 507 judicial votes drawn from the 169 U.S. Courts of Appeals employer-employee free speech cases brought by school employees between the issuance of Pickering in 1968 and the post-Garcetti period into 2014. Since our dependent variable is dichotomous the statistical estimates are obtained via logistic regression. Conclusions/Recommendations We find that employee-plaintiffs are prevailing at lower rates at the U.S. Courts of Appeals in free speech claims against public school districts following the Garcetti decision. Since Garcetti, Courts of Appeals judges—those appointed by both Republican and Democratic presidents—have voted in an increasingly pro-employer direction. We contend this results from “doctrinal signaling,” here, the progressive curtailment in the Supreme Court of public employees’ free speech rights from Connick v. Myers in 1983 to Garcetti. We suggest this “signaling” is used by Courts of Appeals judges as an interpretive tool to give meaning to apparently ambiguous decisions such as Garcetti. Finally, the impact and implications of this negative trend for K–12 employees, as well as possible solutions, are considered.

n June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now be permitted. This Note proposes a test to allow courts to meaningfully respond to this influx of claims. By explicitly incorporating the “social value” of public employee speech into the Pickering balance test as a factor of equal weight alongside the existing factors—the individual employee’s right to speech and the employer’s interest in operating an effective workplace—courts can make meaningful sense of the doctrinal conflict Janus created while also respecting and promoting the unique role public employee speech plays in public discourse.

During the course of a high profile criminal prosecution, a police officer accuses the District Attorney of fabricating evidence. Days before a bond election, a teacher accuses school board members of misusing public funds. In cases like these, government employers often seek to discipline public employees for making controversial or imprudent statements about matters of public concern. In Pickering v Board of Education, the Supreme Court held that a public employee's true or negligently false statements about matters of public concern are protected by the Constitution unless the government employer's interest in efficiently performing its public duties outweigh the First Amendment interests in the employee's speech.' Many courts have construed this holding to require that the employee's speech be protected unless the employer establish actual harm resulting from the employee's statements.2 The Pickering Court, however, expressly declined to decide whether statements by public employees about matters of public concern are constitutionally protected when those statements are knowingly or recklessly false.3 Since Pickering, the Supreme Court has on several occasions considered the First Amendment interests in the speech of public employees. Although it has refined other aspects of the Pickering analysis,4 the Court has not resolved the question of when, if

University Trademarks and 'Mixed Speech' on College Campuses: A Case Study of Gerlich v. Leath and Student Free Speech Rights

Chapter 6 acknowledges that labor law principles are not the end-all for all labor law cases and controversies. Labor law may conflict with other laws and their principles, complicating adjudication. The chapter discusses two major conflicts between labor law and other law, particularly in the United States, but likely also present elsewhere: constitutional rights concerning property and free speech. The U.S. Supreme Court has held in ways that essentially sustain that labor law conflicts with property rights and free speech and, in addition, must cede space to property rights and free speech. The U.S. doctrine of permanent strike replacements, which violates international labor standards, is based on protecting employer property rights. The recent Janus v. AFSCME decision outlawing compulsory union service fees in the public sector is based on protecting individual free speech. But such conflicts need not be. By understanding labor law principles and how labor norms operate, we should recognize that labor law protects workers’ property rights and their capacity to consume, which better guarantees the health of capitalism and societal property rights generally. Moreover, labor law provides a voice to workers, who would be otherwise subordinated. As long as labor norms stem from democratic processes, labor norms should respect constitutional free speech rights. Labor law can thus live side by side with important constitutional principles. Given the importance of property rights and free speech in contemporary, liberal societies, the U.S. case can help warn other jurisdictions from heading down the same erroneous jurisprudential path.

Personal Foul, Roughing the Speaker: The Illusory War between the Establishment Clause & College Football

Perhaps no judicial decision affecting nation's scholastic press has received more attention from researchers than Supreme Court's 1988 Hazelwood School District v. Kuhlmeier ruling, which allowed school administrators to censor school publications are not public forums if censorship is pedagogically related. Same researchers and commentators have stated ruling was a major change in status of freedom of high school press and has led to increased censorship and self-censorship (Student Press Law Center, 1994; Hernandez, 1995). Other researchers and commentators have contended ruling did nothing to change administrators' authority over ability of students to send and receive information through school publications and has had minimal effect on student press (Salomone, 1992; Click, Kopenhaver and Hatcher,1993; Dvorak, Lain and Dickson, 1994; Dickson and Paxton 1997). In wake of Hazelwood ruling and outcry over censorship of student press, four states enacted state freedom of expression laws covering high school journalists: Arkansas (Arkansas Student Publications Act, 1995), Colorado (Rights of Free Expression for Public School Students, 1990), Iowa (Student Exercise of Free Expression, 1989), and Kansas (Student Publications,1992]. A fifth state, Massachusetts, amended its freedom of expression law (Right of Students to Freedom of Expression, 1974), following Hazelwood. A sixth state, California, already had a freedom of expression law covering high school journalists when Hazelwood was decided (Student Exercise of Freedom of Speech and Press, 1983). A 1997 attempt to enact a similar law in Illinois failed when state Senate failed to override a veto by Gov. Jim Edgar (Illinois Lawmakers, 1997). This study, based on a national random-sample survey of high school newspaper advisors, is first attempt to determine on a nationwide basis whether amount of press freedom at public high schools differs in states with scholastic freedom of press laws and states without such laws. Hazelwood While not directly involving freedom of press issues, a 1969 U.S. Supreme Court decision appeared to solidify fundamental First Amendment rights of free expression for students in public schools. In Tinker v. Des Moines Independent School District, Supreme Court overturned suspension of teen-aged students for wearing black armbands to class to demonstrate their opposition to Vietnam war. The Court's decision, while noting student expression disrupting classroom activity still could be banned, stated expression did not cause a disruption was protected by First Amendment. It can hardly be argued, Court said, that either students or teachers shed their constitutional rights to freedom of speech or expression at schoolhouse gate (p. 507). An indication Supreme Court was willing to differentiate between personal speech and school-sponsored speech came in 1986 when Supreme Court in Bethel School District v. Fraser ruled a high school student's free speech rights were not violated when he was punfished for making a speech filled with sexual innuendoes at a student assembly. As Court said, in its opinion, the freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against society's countervailing interest in teaching students boundaries of socially appropriate behavior (p. 681). In well-publicized and much discussed 1988 Hazelwood decision, Supreme Court for first time addressed question of whether censorship of student expression in school newspaper was unconstitutional. In Hazelwood case, students enrolled in Journalism II at Hazelwood East High School in Missouri attempted to publish an edition of school newspaper containing two stories principal disliked. One was based on interviews with students (identified with pseudonyms) who had become pregnant. …

The idea that public employees are able to assert any constitutional rights against their government employers is a relatively recent development in American law. Federal constitutional law no longer permits the wholesale invasion of public employee rights to free speech, though it still reflects a tendency to treat public employees as second-class citizens. State constitutional law is just beginning to make contributions to the public employee's rights of privacy, equality, and free speech. State constitutional guarantees that protect these three interests tend to be more explicit and, therefore, potentially more protective of employee liberties than federal law. Enforcement of these state guarantees, however, is seriously hampered by lack of legislative enthusiasm. State legislators should fulfill their solemn oath to protect and defend the state constitution by enacting laws that provide compensation for victims of unconstitutional acts.

On May 30, 2006 the Supreme Court handed down a 5–4 decision in the case of Garcetti v. Ceballos, announcing that “when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Previously, the Court had held in Pickering v. Board of Education (1968) that the First Amendment’s protection of freedom of speech generally prohibited public employers from firing or disciplining employees for speaking out on matters of “public concern.” The Pickering decision established a two‐part test that first required federal courts to determine whether the employee had spoken out on a matter of public concern and then whether the disruptive impact of the employee’s statement justified the disciplinary action. This article argues that the Garcetti decision may deter many public employees from disclosing governmental inefficiency and misconduct and presenting dissenting viewpoints on matters of clear public concern. Consequently, the decision may make it more difficult for the leadership of public agencies to uncover inefficiency and misconduct.

This dissertation explores the tension between the U.S. government’s control of information and government employees’ claims to free speech rights. The U.S. government prepublication review is a censorship system that requires former and current federal government employees to submit any materials intended for publication to their agencies for prior review before they attempt to make any external communication or proceed with any publications. The prepublication review regime has become an essential means by which the U.S. government controls internal information, and has long been controversial because of its censorship nature. Specifically, this dissertation focuses on legal disputes between the U.S. government prepublication review regime and government employees’ First Amendment rights. Because Snepp v. U.S.(1980) is the only prepublication review case the U.S. Supreme Court has ever decided and the Court has never revisited it, lower federal courts have been responsible for shaping federal government employees’ First Amendment rights in the context of prepublication review over the last forty years. Accordingly, the dissertation examines all judicial opinions involving government prepublication review and the First Amendment, issued by federal courts from 1980s (post-Snepp) to the present, and analyzes how lower federal courts, following the sole Supreme Court case, deal with the conflict between the federal censorship regime based on national security interests and government employees’ free speech rights. The dissertation found that lower federal courts can strike a relatively fair balance between the competing interests of both parties, and they will continue to employ their balancing approaches to resolve future prepublication review legal disputes. However, the courts fail to fairly recognize First Amendment values contributed by government employee speech. They stick to a conventional deference to the executive branch when it comes to national security matters.

A unique and definitive study of freedom-of-expression rights in electronic media from the 1920s through the mid-1930s, Louise M. Benjamin's Freedom of the Air and the Public Interest: First Amendment Rights in Broadcasting to 1935 examines the evolution of free speech rights in early radio. Drawing on primary resources from sixteen archives plus contemporary secondary sources, Benjamin analyzes interactions among the players involved and argues that First Amendment rights in radio evolved in the 1920s and 1930s through the interaction of many entities having social, political, or economic interests in radio. She shows how free speech and First Amendment rights were defined and perceived up to 1935. Focusing on the evolution of various electronic media rights, Benjamin looks at censorship, speakers' rights of access to the medium, broadcasters' rights to use radio as they desired, and listeners' rights to receive information via the airwaves. With many interested parties involved, conflict was inevitable, resulting in the establishment of industry policies and government legislation - particularly the Radio Act of 1927. Further debate led to the Communications Act of 1934, which has provided the regulatory framework for broadcasting for over sixty years. Controversies caused by new technology today continue to rage over virtually the same rights and issues that Benjamin addresses.

How Governmental Policy in an Academic Environment Beyond the Classroom Affects Students Regarding Conduct Originating Off School Grounds in Violation of Their First Amendment Rights

Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity