The First Amendment protects workplace speech
from government abridgment, so long as the communications "do not
contain a `threat of reprisal or force or promise of benefit.´" "[A]n
employer's free speech right to communicate his views to his employees
is firmly established and cannot be infringed"; and likewise, courts of
appeals have held, for employees' free speech rights. See: NLRB v.
Gissel Packing Co., 395 U.S. 575, 617, 618 (1969) (employer speech);
NLRB v. Local Union No. 3, 828 F.2d 936 (2d Cir. 1987) (applying Gissel
to union speech); Hospital & Serv. Employees Union, Local 399 v.
NLRB, 743 F.2d 1417, 1428 n.8 (9th Cir. 1984) (subjecting regulation of
union speech to strict First Amendment scrutiny). Though the National
Labor Relations Act has a specific proviso that guarantees both employer
and employee free speech, 29 U.S.C. § 158(c) (1988), the free speech
rights established by Gissel are based not on this proviso, but on the
First Amendment itself. "[Section] 8(c) . . . merely implements the
First Amendment by requiring that the expression of `any views,
argument, or opinion´ shall not be `evidence of an unfair labor
practice,´ so long as such expression contains `no threat of reprisal or
force or promise of benefit.´" Gissel, 395 U.S. at 617.
Unless an employee is working pursuant to an employment contract with a morals clause or similar restriction, employers, including governments, cannot infringe upon their employees First Amendment rights provided that the speech is not made during the course of employment or under colour of law. In fact, governments have to be very careful in this area because infringing on the constitutional rights of employees or ordinary citizens can trigger a 1983 suit (deprivation of constitutional rights by government or its agents acting under colour of law).
I agree with Justice Souter, who wrote in his Garcetti dissent, "[T]his ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’”
I think that Souter perfectly presents the potential problem. In Garcetti, a Deputy DA was contacted by defence counsel on the issue of a challenge to a search warrant because of alleged inconsistencies in the proffered affidavit of police. Ceballos conducted his own investigation during the course of his employment and concluded that the defence counsel was correct. He prepared a memo and sent it to Gil Garcetti (DA of OJ Simpson fame). His superiors dismissed his claims and continued to prosecute the criminal case. Ceballos later sued claiming that the DA's office had retaliated against him.
The Court held that statements made by public employees pursuant to their official duties are not protected by the First Amendment from employer discipline. Yet, this holding flies in the face of the holdings in whistleblower cases. We should want more speech, not less. We should want whistelblowers and professors that challenge the status quo.
In order for a law or code restricting speech to be constitutional, it must survive strict scrutiny. Along with the lower standards of rational basis review and exacting or intermediate scrutiny, strict scrutiny is part of a hierarchy of standards employed by courts to weigh an asserted government interest against a constitutional right or principle that conflicts with the manner in which the interest is being pursued, United States v. Carolene Products Company, 304 U.S. 144 (1938). Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the Federal government, a state government, or a local municipality is at issue. For a law or code restricting speech to survive strict scrutiny and be upheld as constitutional it must be 1) narrowly-tailored, 2) the state must also have a compelling governmental interest, and 3) the law or policy must be the least restrictive means for achieving that interest.
In order for a university to succeed in limiting the speech of its employees in the classroom or elsewhere, it is going to have to satisfy all three prongs and I don't see how it can. What is the compelling governmental interest in preventing types of speech on campus?
The most common government interests cited are "harassment," "workplace environment," etc. We start from the position that free speech is the ideal. Then, we have to weigh the rights of others against those of the speaker. We might agree that an individual has the right to condemn soldiers, Christians, Jews, etc., but that doesn't mean that he has a protected right to speak thusly at his place of employment. These cases are usually fact-specific and require the least onerous infringement.
Unless an employee is working pursuant to an employment contract with a morals clause or similar restriction, employers, including governments, cannot infringe upon their employees First Amendment rights provided that the speech is not made during the course of employment or under colour of law. In fact, governments have to be very careful in this area because infringing on the constitutional rights of employees or ordinary citizens can trigger a 1983 suit (deprivation of constitutional rights by government or its agents acting under colour of law).
I agree with Justice Souter, who wrote in his Garcetti dissent, "[T]his ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’”
I think that Souter perfectly presents the potential problem. In Garcetti, a Deputy DA was contacted by defence counsel on the issue of a challenge to a search warrant because of alleged inconsistencies in the proffered affidavit of police. Ceballos conducted his own investigation during the course of his employment and concluded that the defence counsel was correct. He prepared a memo and sent it to Gil Garcetti (DA of OJ Simpson fame). His superiors dismissed his claims and continued to prosecute the criminal case. Ceballos later sued claiming that the DA's office had retaliated against him.
The Court held that statements made by public employees pursuant to their official duties are not protected by the First Amendment from employer discipline. Yet, this holding flies in the face of the holdings in whistleblower cases. We should want more speech, not less. We should want whistelblowers and professors that challenge the status quo.
In order for a law or code restricting speech to be constitutional, it must survive strict scrutiny. Along with the lower standards of rational basis review and exacting or intermediate scrutiny, strict scrutiny is part of a hierarchy of standards employed by courts to weigh an asserted government interest against a constitutional right or principle that conflicts with the manner in which the interest is being pursued, United States v. Carolene Products Company, 304 U.S. 144 (1938). Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the Federal government, a state government, or a local municipality is at issue. For a law or code restricting speech to survive strict scrutiny and be upheld as constitutional it must be 1) narrowly-tailored, 2) the state must also have a compelling governmental interest, and 3) the law or policy must be the least restrictive means for achieving that interest.
In order for a university to succeed in limiting the speech of its employees in the classroom or elsewhere, it is going to have to satisfy all three prongs and I don't see how it can. What is the compelling governmental interest in preventing types of speech on campus?
The most common government interests cited are "harassment," "workplace environment," etc. We start from the position that free speech is the ideal. Then, we have to weigh the rights of others against those of the speaker. We might agree that an individual has the right to condemn soldiers, Christians, Jews, etc., but that doesn't mean that he has a protected right to speak thusly at his place of employment. These cases are usually fact-specific and require the least onerous infringement.
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