#FirstAmendment #YouSaidWhat? Free Speech and Matters of Public Concern

by Dean Micknal

I don’t know about you, but lately it feels like some new hot button issue is hitting the airwaves on a daily, if not hourly, basis.  It also appears that many people, including those who have previously abided by the “never discuss religion or politics in public” rule, are feeling compelled to express their opinions on these issues.  The varying degrees of civility being employed, potential depletion of our nation’s hashtag supply, and the fact that some (myself included) find this heightened level of public discourse emotionally draining does not diminish the fundamental importance the right to free speech plays in our society.  Understanding how and when to respond to incidents in which a district employee or student is exercising this right is essential to avoiding a claim that the District has infringed upon the individual’s First Amendment rights.

As an initial matter, it is important to recognize that the U.S. Supreme Court has long held that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  However, these rights are not absolute.  Some categories of speech are simply not protected by the First Amendment.  For example, speech defined by a court as obscene, defamatory, “fighting words”, or “true threats” of violence is not protected and may be prohibited without violating the First Amendment.  That said, defining these categories is not always straightforward.  If you have any doubt as to whether an incident really involves an unprotected category of speech, please be sure to review it with legal counsel before taking action.  This is also a great way to make your school attorney feel uncomfortable at having to recite George Carlin’s “Seven Dirty Words” routine.

What about speech that doesn’t fit into one of the identified categories of non-protected speech? The short answer is “it depends.”  A summary of the longer answer is as follows…

If the speaker is a district employee, the speech would need to be subjected to a legal analysis known as the Garcetti-Pickering Balancing Test.  Entire law review articles have been written on the nuances of this analysis, but the basic structure involves three questions.

1.  In what role is the employee speaking?

a.  If the employee is speaking pursuant to his or her official duties, the speech is not protected and may be restricted.

b.  If the employee is speaking as a private citizen, the speech might be protected.

2.  Is the employee speaking on a matter of public concern?

a.  If “no”, the speech is not protected and may be restricted.

b.  If “yes”, the speech might be protected.

3.  Does the district’s interest “in promoting the efficiency of the public services it performs through its employees” outweigh the employee’s interests in commenting, as a citizen, upon the matter of public concern?

a.  If “no”, the speech is protected.

b.  If “yes”, the speech may be restricted.

If the speaker is a student, the analysis typically follows the jurisprudence developed in one or more of the following lines of cases:

  1. Tinker v. Des Moines ISD—allowing restrictions to speech when school officials can reasonably forecast that the speech would materially and substantially interfere with the work of the school or infringe the rights of others;
  2. Bethel School District v. Fraser—allowing schools to regulate offensively lewd and indecent speech in the school setting;
  3. Hazelwood School District v. Kuhlmeier—allowing restriction of speech that is attributable to a school-sponsored expressive activity that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school; and
  4. Morse v. Frederick—allowing restrictions to speech advocating illegal drug use or otherwise poses grave and unique threats to the physical safety of students.

The polarizing and emotionally charged nature of current events means that there is an increased likelihood that an employee or student may express an opinion that is unpopular or even offensive to some members of the community.  When this occurs, it is essential to avoid knee-jerk reactions based on disapproval with the speaker’s viewpoint.   Any First Amendment claim is likely to be highly fact-dependent and determining the speaker’s status under the law requires careful consideration to identify and then apply the appropriate analysis.  If you have any concerns as to whether an incident involves protected speech, the attorneys at Leasor Crass are ready, willing and able to help.