Speech by Government Employees

[ArtSpitzer]

In a message dated 12/22/97 10:01:49 AM, dlaycock at MAIL.LAW.UTEXAS.EDU wrote:

>        I have never been much impressed with distinctions based on the
>capacity in which the government is acting -- whether as sovereign, or as
>employer, or whatever.  But it must matter in what capacity the individual
>asserting a right is acting. * * *
>My legal claim to free speech is weakest precisely at the
>point where the theory of academic freedom would make it strongest -- when I
>go into the classroom as an employee of the state of Texas and speak to
>students who have paid the state for my presence.  As earlier posts noted,
>the cases on this go both ways.
>
>        A school choir director selecting songs for the official school
>program is clearly acting in an official capacity.   I don't see how he
>could possibly have either a free speech claim or a RFRA claim.
_________
If this is correct, as I think it is, then are we all (except Jim Henderson)
in agreement that the defendant school officials in the Alabama case cannot
possibly have any First Amendment or RFRA defenses against Judge DeMent's
injunction, since they have no relevant First Amendment or RFRA rights when
acting in their official capacities?
Art Spitzer