Speech by Government Employees

[Rob Weinberg]

At 12:40 PM 1/5/98 -0600, Rick Duncan  wrote:
>Let's assume that Mark Graber's views prevail at PS 101, and the
>school board adopts a policy prohibiting teachers from making comments
>in class about their religious beliefs.

I was unable to tell from Mark's post whether the restriction he proposed
was on personal, individual capacity speech as well as official capacity
speech, a la the _Bishop v. Aronov_ case discussed earlier. I do not see
why appropriate disclaimers from the teacher that s/he is speaking
personally, in a non-instructional capacity, and that his/her viewpoints do
not reflect those of the employer will not satisfy the EC.

>
>Now, it seems to me that this policy is viewpoint discriminatory under
>RAV and Rosenberger. That is, even if in class speech is a type of
>speech unprotected by the free speech clause, the state has engaged in
>viewpoint discrimination within that category of unprotected speech
>by singling out only religious viewpoints for censorship.

I am unclear here too. "Official capacity" speech is not protected under
the free speech clause that I'm aware of. Why engage in the question
whether it is viewpoint discrimination unless we're talking about the
"protected" category which is "protected" only when uttered in their
individual capacity?

>
>Now, some may argue that the EC provides a compelling justification
>for this viewpoint discrimination (i.e. the interest in avoiding an
>endorsement of religion in a public school classroom justifies the
>restriction).

A cite escapes me at the moment (Rosenberger? Lamb's Chapel?), but the
Supreme Court said recently that compliance with the official capacity EC
considerations would not itself justify individual capacity free speech
restrictions. Perhaps I'm confusing the line of reasoning from voting
rights cases wherein the Supremes have held that compliance with the Voting
Rights Act does not insulate a state from an equal protection claim that
districts have been "racially gerrymandered."

If I'm making it up, I still think the analysis would apply in the context
of the EC, that is: that articulating compliance with the EC will not
justify a free speech restriction (not otherwise justified under Pickering,
Connick, et al.).

>But is it necessary to engage in viewpoint
>discrimination to avoid the EC problem? Isn't banning *all* personal
>speech by teachers in the classroom a less restrictive means of
>complying with the EC (because a total ban addresses the EC interest
>without resorting to viewpoint restrictions on teacher speech)? I
>think this may be the point Jim Henderson has been making--sometimes a
>larger restriction on speech is more faithful to the core of freedom
>of speech than a smaller (but targeted) restriction. It is not
>throwing out the "free speech baby with the EC bathwater"; it is
>complying with the EC without thereby violating a principle at the
>core of free speech. It also spreads the costs of complying with the
>EC to a much larger group of citizens (as Jim puts it, it's more
>fair).

I disagree that this draconian measure is necessary or more fair. The
state's and school's concern with the EC is that its teachers
administrators do not give the impression that they are speaking for the
school in matters of religion or religious preference. The burden or costs
of complying with the EC is not one that is spread among individual
citizens, but is entirely on the shoulders of government. Depriving private
citizens the right to speak on matters of religion is not necessary to
prevent the government from violating the EC.

I recognize that Jim and perhaps others may consider the distinction
between individual and official capacity utterances distinctions without a
difference. However, without that distinction, there would be no need to
even engage in a Pickering analysis in free speech cases at all, for all
utterances -- private or official -- would be subject to unfettered
restriction by the government employer. In assessing who may bring a free
speech claim, the courts necessarily inquire in what capacity they are
speaking: employee or private citizen.  The Pickering analysis then
balances those interests.

If the teacher is speaking as a private citizen, not as an agent of the
school, then her speech, including religious speech, is protected, subject
to the balance in Pickering/Connick. But if she is speaking as an agent of
the school, then it will fail the first prong of Pickering, and can be
regulated in its entirety, whether discussing her lesbianism or religious
preferences. The EC may require government to regulate/restrict official
capacity speech when it comes to religion. But it does not require the
government to regulate her private speech. Indeed, that is what the free
speech clause would forbid (subject to Pickering).

******************
Rob Weinberg, Montgomery, AL
http://www.mindspring.com/~robertmw/