SCOTUS on Establishment Clause, Free Speech, Free Exercise, and prayer on the 50-yard line

Yesterday, the Supreme Court issued its opinion in Kennedy v. Bremerton Sch. Dist. This case has a long and convoluted fact pattern, including a high school football coach leading locker room prayers and post-game religious talks. The school told him to knock that off, and he did. 

He would later pray on the 50 yard line, and the school suspended the coach for three specific incidents, which the Court described as "praying quietly without his players." He did so during a time when coaches were generally permitted to have private conversation, make phone calls, and other secular non-work-related activities. There appears to be some disagreement about the underlying facts. While that is surely important to the parties in this case, it is irrelevant to the precedent this case establishes.

Justice Gorsuch

Obviously, terminating a public employee for praying raises significant free speech and  free exercise concerns. The school raised its own concerns though that allowing the prayer would create Establishment Clause concerns - i.e., the coach's prayers could be viewed as school-sponsored or coercive prayer. 

Ultimately, the Court sided with the coach, and the free exercise/speech concerns. When public employees are on their free time, even if they are only on the field due to their employment, their religious prayers cannot be disfavored in comparison to their non-religious activities:

Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is “part of learning how to live in a pluralistic society,” a trait of character essential to “a tolerant citizenry.” This Court has long recognized as well that “secondary school students are mature enough . . . to understand that a school does not endorse,” let alone coerce them to participate in, “speech that it merely permits on a nondiscriminatory basis.” Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But “[o]ffense . . . does not equate to coercion.”

(Internal citations omitted).  

Another NLRB win for Scabby the Rat

Scabby the Rat

Labor and employment law can be weird sometimes... like, there's an entire line of cases about the right of employees to bring a giant inflatable rodent named Scabby the Rat to protests. Yesterday, the legendary blow-up critter got another win at the National Labor Relations Board in a 3-1 ruling. 

Here, a union brought ol' Scabby to an RV trade show and placed him right at the entrance alongside two banners. The union's employer supplied components to the RV company that hosted the trade show. In other words, they brought Scabby to a neutral (or "secondary") employer. 

Ultimately, the NLRB held that this did not violate the National Labor Relations Act. Two concurring Members and one dissenting Member all emphasized the importance of enforcing the NLRA's goal of keeping labor disputes from "entangling" or "impairing" neutral or secondary employers. How did Scabby pull off the victory? The two concurring Members and the Chairman sided with Scabby, relying largely on the "constitutional avoidance" doctrine - the idea that the NLRB should not enforce the NLRA in ways that might infringe on the union's First Amendment rights. 

At the end of the day, chalk up another win for Scabby. 

SCOTUS: Ministerial exception... not just for "ministers"

Yesterday, the Supreme Court issued its decision in Our Lady of Guadalupe Sch. v. Morrisey-Berru. The bottom line? 

When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.

In other words, under the "ministerial exception," the Catholic schools in these consolidated cases could not be sued by their teachers for employment discrimination. 

The majority opinion focused primarily on what the ministerial exception test is not. The Court emphasized that the factors relied upon in a prior ministerial exception case, Hosanna-Tabor, are not a "rigid formula" and courts should not require them like a "checklist." Similarly, the employer need not literally title the employee a "minister" (and the Court declined an invitation to jump in to identifying who is a "minister" in other religions that do not use that term, or use it differently). 

What does matter?

What matters, at bottom, is what an employee does . . . . educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school. 

One of the major disputes between the majority opinion and the dissent is whether the majority was resolving issues of fact, and viewing them in a light most favorable to the employer. This highlights a difficulty with the ministerial exception. The point is to spare religious organizations from government interference. 

But, the test seems to require factual determinations. Traditionally, courts utilize the discovery process to generate evidence, and if there is a dispute regarding material facts, they are resolved at trial. Under this model, religious organizations could still get sued, endure costly discovery, and possibly even a costly trial subject to a determination by the jury. That would pretty much defeat the purpose of the exemption. It is still not clear (to me) to what extent courts should defer to the assertions from the employers in these cases. 

SCOTUS will take another crack at ministerial exception to employment discrimination claims

Almost 8 years ago, a unanimous Supreme Court recognized that the First Amendment's Religion Clauses create a ministerial exception to the ADA in Hosanna-Tabor v. EEOC. The Court held that a "called" teacher, who performed "important religious functions" could not file a lawsuit under the ADA.

Welp, get ready for round 2, because the Supreme Court just granted certiorari and will hear two consolidated cases:

Our Lady of Guadalupe School v. Morrisey-Berru - A Catholic school teacher filed an ADEA lawsuit, and the Ninth Circuit refused to apply the ministerial exception, in part because she did not hold a religious title. Hosanna-Tabor clearly held that a title is "relevant" but not determinative. The school argues that the plaintiff taught daily religious education classes through prayer, worship, and instruction, and "modeled" Catholic behavior. She had some other religious activities too, like directing an annual performance of The Passion.

St. James School v. Biel -  Another appeal from - you guessed it! - the Ninth Circuit. It's another case involving a Catholic school teacher. The Ninth Circuit applied something like a 4-factor test, looking at serving important religious functions, title, training, and tax benefits. The teacher only met the first factor, and so the Ninth Circuit held that the ministerial exception did not apply. Reading Hosana-Tabor, I think this is likely wrong. While all of those things are relevant, they are not equal or necessary elements.

I'm not a betting man, but I suspect the Ninth Circuit will not fare well here. The case has not yet been scheduled for argument, but will presumably be heard sometime in the next few months.

Third Circuit: First Amendment protects public employee's report of a crime

The Third Circuit issued a precedential opinion in Javitz v. County of Luzerne.

The plaintiff was the Director of Human Resources for Luzerne County. She claims that a union representative unlawfully recorded an investigatory meeting in which she participated (a violation of Pennsylvania's wiretapping law, 18 Pa. Cons. Stat. § 5703). The plaintiff reported the alleged crime to her supervisor, and they met with the DA (who referred it to the AG).

Not official use. 

Welp, she got fired. And, she claims it was in retaliation for reporting the alleged crime. Is she protected by the First Amendment? The First Amendment does protect public employees who speak as private citizens on matters of public concern. There's a big hurdle though - employee statements made pursuant to their official duties are not protected.

Here, she was complaining about an incident that occurred at work, and she reported it to her work supervisor. The Third Circuit, however, concluded that she was till protected by the First Amendment. The reason? Reporting the crime fell outside of her job duties.

Sure, she had access to high level employees to whom she reported the crime as part of her job. And, the County Ethics Code encouraged reporting of "violation[s] of the law." But, it was not "some formal job duty or responsibility" to report the crime. Her case was therefore remanded back to the trial court to allow her to proceed on her First Amendment claim
.

Second issue: She was not protected by the 14th Amendment's Due Process Clause because at will employees do not have a "property" interest in ongoing employment.

Teacher sues school after getting fired for using wrong gender pronouns

Fascinating case out of Virginia - from WaPo, A Virginia teacher was fired for refusing to use a trans student’s pronouns. Now, he’s suing his school district - and, props to WaPo for including a copy of the Complaint.

From the story:

Citing his religious beliefs, [the teacher] promised to use only the student’s name and avoid pronouns entirely . . . .  

Then, on Oct. 31, 2018, his second-year French students wore virtual-reality goggles and walked around the classroom. The transgender student seemed about to crash when the teacher told another student to help. “Don’t let her hit the wall,” Vlaming shouted. 

The student withdrew from the class, and the school board fired the teacher. In his Complaint, the teacher describes his views as:

But this case is about far more than pronouns. It is about whether the government may force Mr. Warning to express ideas about human nature, unrelated to the school's curriculum, that he believes are false. If he were to comply with Defendants' demands, he would be forced to communicate that gender identity, rather than biological reality, fundamentally shapes and defines who we truly are as humans, that our sex can change, and that a woman who identifies as a man really is a man. But if he refers to students based on their biological sex (as he has, with reasonable accommodations), he communicates the views he actually believes—that our sex shapes who we are as humans, that this sex is fixed in each person, and that it cannot be changed, regardless of our feelings or desires.

Obviously, teachers have certain rights to speech and religious beliefs. The teacher claims that using only transgender students' proper names was a reasonable accommodation to which he was entitled. Religious accommodations must not, however, impose an undue hardship on the employer.

Here, the school has certain policy interests, such as providing a welcoming and enriching environment for its students. It also may have legal obligations to address and correct a hostile education environment based on a student's gender identity (SCOTUS is wrestling with the scope of gender identity protection under Title VII's employment protections as I type).

The teacher filed his lawsuit in Virginia state court under state law and constitutional claims. It will be interesting to see how this case plays out - but I suspect these issues will spawn more and more litigation over the next few years until we get some clearer lines drawn.

Andrew McCabe lawsuit over FBI firing

From NPR: Ex-Deputy FBI Director Andrew McCabe Sues Over What He Calls Wrongful Firing.

This is an interesting employment law case, and you can read the full complaint here. McCabe raises several arguments:

Andrew McCabe - Public Domain Portrait

• You can't fire me, I quit! - He claims he completed all of his work for the pay period in which he was fired, and therefore had effectively retired by the time he was terminated;

• Even if I was fired, where's my due process? - He claims the FBI failed to follow the statutory framework for terminations and deprived him of due process under the Fifth Amendment to the Constitution; and

• Partisan witch hunt! - He claims he was targeted for partisan reasons based on his perceived political affiliations, political expression, and intimate association. 

• Mandamus! - The complaint begins by quoting Marbury v. Madison and ends with a request for mandamus (a con law nerd's dream) directing the FBI to recognize him as retired. 

Will he win? Who knows. These claims all seem plausible on their face. But, let's not forget, he was fired for allegedly leaking information to the media and a "lack of candor" in interviews with investigators. A legitimate reason can go a long way in wrongful termination lawsuits. 

Trump middle finger lawsuit dismissed

I can't say I'm surprised. The lady who got fired for flipping off President Trump's motorcade reportedly lost her lawsuit. I suppose she still has some appeal options. When she filed suit, I described her claim as a "secondhand First Amendment claim," and called it a "long shot."

She tried to argue that the current political climate led her employer to fire her from fear of retaliation from the government. First, it doesn't sound like she really had anything to back that up (although that's generally not crucial at the pleadings stage). The bigger issue is that the First Amendment simply does not apply to private employers.

UPDATE (7/6/2018): I should have pointed out that the employee also had a claim that she was not paid severance that she was allegedly promised. This claim may proceed.

SCOTUS Season Concludes with a Labor Decision and a Surprise

Yesterday, the Supreme Court concluded its 2017-18 term. I'll start with the huge news that Justice Kennedy announced his retirement. Hopefully, we'll soon know who President trump nominates to replace him, and do a little employment law background check on him or her. Here is President Trumps 'short list' from November 2017.

The big news for the hour or so before the retirement announcement was that the Supreme Court issued its opinion in Janus v. AFSCME. The 5-4 majority opinion from Justice Alito is 49 pages, so I'll bypass the complicated legal analysis and cut to the conclusion:

States and public-sector unions may no longer extract agency fees from nonconsenting employees . . . . This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.

(citations omitted). This is big news and will have a big impact on states where public employee unions require a "fair share."

PennDOT Employee's Facebook Rant Receives Constitutional Protection

The Commonwealth Court of Pennsylvania issued an opinion applying the First Amendment to a Facebook rant in Carr v. Commw. Dept. of Trans.

A PennDOT road worker posted this to a Facebook group:

Rant: can we acknowledge the horrible school bus drivers? I’m in PA almost on the NY boarder [sic] bear [sic] Erie and they are hella scary. Daily I get ran off the berm of our completely wide enough road and today one asked me to t-bone it. I end this rant saying I don’t give a flying shit about those babies and I will gladly smash into a school bus.

She followed up with some sassy replies in the comments. She got fired.

Public employees enjoy some First Amendment free speech protections generally not afforded to private employees. For speech to receive protection, the Court will inquire whether:

• The employee spoke as a citizen on a matter of public concern; and

• Whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public (including whether the speech has some potential to affect the entity’s operations).

(See opinion for citations and quotations).

The Court held that her rant did touch on a matter of public concern: "Carr’s speech touched on the safety of schoolchildren and the traveling public." On the second issue, the Court applied the first four of the seven "Sacks factors":

1. Whether, because of the speech, the government agency is prevented from efficiently carrying out its responsibilities;  

2. Whether the speech impairs the employee’s ability to carry out his own responsibilities;  

3. Whether the speech interferes with essential and close working relationships;  

4. The manner, time and place in which the speech occurs[;] . . . .  

5. Whether the speaker was in a position in which the need for confidentiality was so great as to justify dismissal for even completely accurate public statements[;] 

6. Whether narrowly drawn grievance procedures required submission of complaints about the operation of the agency to superiors for action prior to taking complaints to the public[; and]  

7. Whether a statement that was knowingly or recklessly false, if it were neither shown nor could reasonably be presumed to have harmful effects, would still be protected by the First Amendment.

I'll spare you the blow-by-blow, but the Court concluded: "the Department’s generalized interest in the safety of the traveling public does not outweigh Carr’s specific interest in commenting on the safety of a particular bus driver." Ultimately, the employee was reinstated.

Even public employees should not read this as some kind of blanket protection for Facebook rants. This decision addressed the exception rather than the rule.

HT: Court: PennDOT Employee Who Wrote on Facebook That She'd 'Gladly Smash Into a School Bus' Must Be Reinstated via The Legal Intelligencer.

Some Thoughts on Masterpiece Cakeshop

By now, you have probably already heard that the Supreme Court issued its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission. This is the case where the bakery refused to make a wedding cake for a same-sex couple, and was charged with violating Colorado's law against discriminating on the basis of sexual orientation.

The case set up a conflict between the First Amendment's free exercise clause (also, arguably, free expression - but the Court focused primarily on exercise of religious beliefs), and Colorado's civil rights law. The Court ducked the major issues to issue a narrow ruling. Ultimately, the Court ruled for the cakeshop but based on some circumstances that were very specific to this case:

• At a public hearing, a Colorado commissioner made some stupid comments disparaging the cakeshop owner's religious beliefs as "despicable" and merely "rhetorical," and invoking religious defenses of slavery and the holocaust. That type of anti-religious commentary is a recipe (sorry, I couldn't resist) for First Amendment issues. 

• "[O]n at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service." In other words, each bakery's viewpoint appeared to dictate the result. That type of disparate treatment just won't cut it (dammit, I can't help myself). 

• The Court also noted that same-sex marriage was not yet legal in Colorado, but that wasn't really a main ingredient in the Court's opinion - more like icing on the cake (okay okay, I'm done now). 

Perhaps as important as the decision itself is what the decision is not. 

• First, the cakeshop here offered to sell the same-sex couple "birthday cakes, shower cakes . . . cookies and brownies." This was not a case about generally refusing service on the basis of sexual orientation. 

• Even in the context of same-sex weddings, the Court expressed skepticism about how far businesses could go with a First Amendment argument. The Court noted that clergy can obviously refrain from performing marriage ceremonies. "Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations." Yes, Justice Kennedy, the extent of the exception and its confines are *exactly* why we're here! Alas, he never gets there, relying on the rationale above instead. 

• This decision is most definitely not a license to discriminate against the LGBTQ community generally. In fact, quite the opposite, as the Court notes: "[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law."

In short, the eagerly anticipated decision was mostly a dud. A reaffirmation that government agencies can't be openly hostile to religious beliefs and engage in viewpoint discrimination. The Court failed to address the difficult line-drawing issues that will surely keep the lower courts busy in the near future. 

Trump flipper-offer files secondhand First Amendment claim

Yeah, that's not a title I thought I'd ever type here. I think it's pretty accurate though. Remember that lady who got fired for giving President Trump's motorcade the middle finger. Of course you do, but just in case, here ya go:

That's not a hand signal.

Welp, now she has filed a lawsuit (Complaint included). On what basis? Well, two really. One is pretty dull . . . she claims she was promised four weeks of severance but only received two. A basic breach of contract claim. This could be important if it nullifies a separation agreement that waived all claims.

The second claim is the big one. She claims "wrongful termination" in violation of public policy. In other words, no law specifically prohibits her termination . . . but she wants the Court to make a special exception to the general rule of "at will" employment (the employer or the employee can terminate the employment relationship for any reason or no reason).

Obviously there are statutory exceptions to "at will" employment; as one example, Title VII says you can't fire someone because of their race. However, courts rarely create exceptions (under the common law, or judge-made law). Here, the plaintiff asserts a sort of secondhand First Amendment claim.

Public employers cannot retaliate against employees when they speak as private citizens on matters of public concern. I guess that's arguably what the plaintiff here did . . . but she's not a public employee. So, she claims that her government contractor employer fired her because it was afraid of retaliation from the government (and *that* retaliation would be prohibited by the First Amendment).

It's clever. I don't know enough about Virginia common law to weigh in on its viability. I can say that the Pennsylvania Supreme Court interprets the public policy exception to at will employment *very* narrowly. I guess we'll see. It sounds a little like a long shot to me.

Fun fact: While I was in law school, I interned for a judge at the Fairfax County Circuit Court where this suit was filed.

Abood back on the SCOTUS chopping block

SCOTUS was expected to finally pull the trigger and overrule Abood v. Detroit Bd. of Ed. last year in Friedrichs v. California Teachers Ass'n. The setup:

Abood recognized that compulsory public union dues could violate the First Amendment for certain ideological or political speech... but allowed the compulsory fees for collective bargaining. I'll broadly generalize the argument in Friedrichs as: Any time a public union is negotiating with the state, it is engaging in political speech; and forcing people to pay fees to support that activity violates their First Amendment rights. In other words, the carve-out for collective bargaining in Abood should be ruled unconstitutional.

Everyone expected Abood to fall last year . . . but, then, Justice Scalia died. The end result was an even split on an 8-member Supreme Court, which meant that Abood lived to see another day.

It certainly looks like its days are numbered though. This morning, the Supreme Court granted certiorari in Janus v. AFSCME, addressing the issue:

Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.

It will presumably all come down to Justice Gorsuch. If I were a betting man, I'd start playing taps about now. 

Can employers fire employees for attending Charlottesville protests?

I'm sure you've already heard about the violence in Charlottesville this past weekend, and you've probably heard about the efforts to get the white supremacist protesters fired. Is is legal for employers to fire employees for attending the protests?

Generally

Generally, yes. Private employers can generally fire employees for any reason or no reason at all unless it conflicts with some established law or public policy (we call this "at will" employment). By now, you probably already know the lawyerly caveat you're about to get here . . . but, it depends. In fact, this may be one of the most convoluted issues ever to grace this fine blog.

NLRA

Why isn't this like the Google memo guy (which I analyzed here). Google memo guy was working with his co-workers to address the terms and conditions of his employment with his employer ("protected concerted activity" under the NLRA). I have heard nothing to suggest that the Charlottesville protesters were engaged in this sort of protected activity. Also, as Jon Hyman notes, other exceptions may apply.

"Just Cause"

However, there are a few situations that strike me as a little dicier. For example, many employees have individual employment contracts or union collective bargaining agreements that require "just cause" for termination. The "just cause" determination is very case-specific and varies a little based on jurisdiction.

It's usually harder for the employer to establish just cause for a termination based on off-duty conduct. To give you a sense of what's required, Pennsylvania looks at these factors:

First, the nature of the job is an important consideration; an employee in a 'sensitive position' may be subject to dismissal if only to avoid the appearance of impropriety whereas an employee in a non-sensitive position may not . . . . A second relevant factor is whether the conduct in question demonstrates a lack of judgment that erodes confidence in an employee's character . . . . A third factor concerns safety. An employee whose job it is to protect the safety of others is expected to behave in a manner consistent with this goal even while off duty.

City of Phila. v. City of Phila. Civil Svc. Comm'n. Employers must also establish a "nexus" between the off-duty conduct and the employee's ability to perform the job. Established employee policies come into play too.

So, I really can't provide you with a blanket rule, because every situation is different. What job does the employee have? What was (s)he actually doing? Each situation requires individualized analysis, and we may see different results depending on whether the employee was a klansmen punching someone or just some gawker; a neo-nazi or some sort of free speech activist; or maybe just some poor parent who picked a *really* bad weekend to take their kid on a college visit to UVA. The facts matter. And, of course, don't get the wrong guy (example here).    

Free Speech

Private employees generally don't receive First Amendment protections in employment. However, public employees do. Broadly speaking, public employees have a right to speak on matters of public concern while acting as private citizens. Public employers are generally prohibited from retaliating against public employees for First Amendment protected speech. However, once again, this is a complex area of the law - I'm just throwing out some general considerations.

State Laws

As usual, I present this with the caveat that states have myriad laws that I'm simply unfamiliar with. For example, the D.C. Human Rights Act prohibits employment discrimination based on political affiliation; Colorado prohibits employment termination for lawful outside-of-work activities; and Connecticut applies something like First Amendment free speech protections even to private employees (ask Dan Schwartz - I don't know anything about it).

Conclusion

Somebody could write an entire book on all of the legal issues raised by firing employees who attended Charlottesville. Most of the time, employers can go ahead and pull the trigger; but, there are a ton of mines in that field.

SCOTUS: Mistaken retaliation is still retaliation under First Amendment

Yesterday, the Supreme Court issued its opinion in Heffernan v. City of Patterson.

A police officer picked up a campaign sign featuring a candidate who was particularly unpopular in his department. Some of his co-workers spotted him and he got demoted the next day. But wait! It was all a big misunderstanding! He was actually just picking up the sign for his bed-ridden mother.

Generally, a First Amendment claim requires (1) protected speech; (2) a materially adverse action; and (3) a causal connection between the two. Here, it appears that the police office never really engaged in any "protected speech" because he was just picking up the sign for someone else.

Both the majority (by Justice Breyer) and the dissent (Justice Thomas) have logical arguments. Of course, it's the majority opinion that counts:

[T]he government’s reason for demoting [the police officer] is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.

The counterargument, per Justice Thomas (joined by Justice Alito) in dissent:

Today the Court holds that a public employee may bring a federal lawsuit for money damages alleging a violation of a constitutional right that he concedes he did not exercise. Because federal law does not provide a cause of action to plaintiffs whose constitutional rights have not been violated, I respectfully dissent.

The majority reversed the Third Circuit decision, which I covered here (embarrassingly declaring "game over"... not expecting SCOTUS review). I'm not sure how often this situation will arise in the future (my hunch is that it is pretty uncommon), but we will
know how to analyze it now.

Curt Schilling, ESPN, Free Speech and quirky state laws

As you have probably already heard, ESPN fired Curt Schilling - presumably for sharing a Facebook post (screen grab here) that mocked transgender people and commenting that "A man is a man no matter what they call themselves" and "Now you need laws telling us differently? Pathetic."

Any free speech issues? I covered a lot of this ground in an article regarding Phil Robertson (the Duck Dynasty guy) and his dust-up with A&E. In short, the First Amendment generally only applies to state actors. It has some teeth in the context of public employment... but not so much with ESPN.

ESPN logo used in commentary
on ESPN.

But wait... ESPN is in Connecticut! Why does that matter? Because Connecticut has this law that prohibits "discipline or discharge" for exercising First Amendment rights, and it applies to private employers! However, that law comes with a pretty big caveat: "provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer."

As my favorite Connecticut employment law blogger, Dan Schwartz, noted on Twitter:

Has to be an issue of public concern and can't disrupt workplace. Speech here arguably has issues with both. https://t.co/Zum1NIbn1Y

— Dan Schwartz (@danielschwartz) April 21, 2016

Did Schilling's post address a matter of public concern? I think so - I mean, he specifically references "laws" and he's presumably referring to the public debate over North Carolina's bathroom law. Was he disrupting the workplace? I don't work there, so I don't know - seems at least plausible. We'll see how this plays out.

Of course, these issues may also be addressed in an individual contract between the parties. Also, I suppose it's possible that Schilling is based somewhere else and is not covered by the CT law.

Just in from SCOTUS: Compulsory public union fees for collective bargaining survive

It was supposed to be a ginormous (that's a word, right?) labor law decision. In Friedrichs v. California Teachers Ass'n, the Supreme Court was going to decide:

(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and  

(2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

 In other words, can public sector unions collect mandatory fees from employees who don't want to pay those fees?

Abood recognized that compulsory public union dues could violate the First Amendment for certain ideological or political speech... but allowed the compulsory fees for collective bargaining. I'll broadly generalize the argument in Friedrichs as: Any time a public union is negotiating with the state, it is engaging in political speech; and forcing people to pay fees to support that activity violates their First Amendment rights. In other words, the carve-out for collective bargaining in Abood should be ruled unconstitutional.

Abood suffered some criticism and setbacks in recent Supreme Court decisions (like Knox v. SEIU and Harris v. Quinn). Friedrichs was going to finally pull the trigger... it was going to kill the Abood carve-out once and for all. But then, Justice Scalia died.

The end result? The United States Supreme Court split 4-4, which means the 9th Circuit opinion relying on Abood was affirmed. As I stated on Twitter:

Just in: Abood lives, because Justice Scalia died. Friedrichs affirmed by equally divided court in per curiam opinion. #SCOTUS

— Philip Miles (@PhilipMiles) March 29, 2016

Mandatory fees for collective bargaining by public unions appears safe. For now. Although the Supreme Court issued only a per curiam opinion with no analysis, we know they were "equally divided" (presumably split 4-4). Will the Court take up this issue again when they're back at nine? We'll see.

Lawffice Links - SCOTUS Arguments on Mandatory Fees for Public Unions

Yesterday, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association (SCOTUSblog page), a hugely important case for public unions. I baked some Lawffice Links to mark the occasion:

• For a good introduction to the case, check out Justices return to dispute over union fees for non-members: In Plain English, which describes Friedrichs as "a case which asks [the Supreme Court] to overrule a 1977 decision and hold that public employees who don’t want to join the union that represents them also can’t be required to pay a fee to cover the costs that the union incurs in collective bargaining."
• You can read the transcript from yesterday's oral arguments here. 
• Cato Institute thinks it went well from their libertarian perspective: Supreme Court Poised to Free Public-Sector Workers from Compelled Union Fees.
• Adam Liptak from NYT similarly concluded that it did not look good for the public union's side:  Supreme Court Seems Poised to Deal Unions a Major Setback.
• Still not enough? On Labor compiled its own Friedrichs Oral Argument Commentary Round-Up, with even more links. 

So far, the commentators seem to think that SCOTUS is going to overrule Abood (the aforementioned "1977 decision") and strike down mandatory fees. Of course, we never know how the Supreme Court is going to rule until they rule. Stay tuned. 

SCOTUS Grants Cert. in First Amendment "Perceived Support" Case

SCOTUS kicked off their new season last Thursday with some cert. grants, including a new employment law case. The Court granted cert in Heffernon v. City of Patterson.

I blogged about this case earlier in the year following the Third Circuit's decision. Basically, a public employee claims he was demoted after he was spotted picking up a campaign yard sign supporting a particular mayoral candidate. He filed a First Amendment retaliation claim. As it turns out, he was just picking up the sign for his mother and was not attempting to make any political statement at all. So, the Court held that he had not engaged in First Amendment-protected speech.

The Petition for Certiorari describes the issue as:

Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.

At the time of the Third Circuit decision, I wrote:

But wait . . . are you telling me that a public employer can retaliate against an employee for supporting a political candidate if it turns out they're wrong about his actual support? Pretty much. The Court expressly rejected this "perceived support" theory ("where the employer’s retaliation is traceable to a genuine but incorrect or unfounded belief that the employee exercised a First Amendment right."). 

Game over. Employer wins, employee loses.

It turns out I was wrong. It was not "game over," because the Supreme Court will now hear this case. Instead, it's "game on." 

What is a "hostile educational environment"?

The University of Oklahoma SAE issue has led to a lot of First Amendment commentary. To recap, a bunch of fraternity brothers sang a song that included some horribly racist lyrics (such as the N-word and references to tree-hangings) on a charter bus. The university expelled the students.

Can they do that under the First Amendment? Eugene Volokh says no. The LA Times solicited views from a number of experts who unanimously concluded no (with one anonymous attorney calling it a "gray area"). And then there is Noah Feldman, who concluded that the university may expel the students because they face potential liability for allowing a "hostile educational environment." And, indeed, this appears to be the theory on which the university's president is relying.

I think everyone agrees that:

1. A public university may not expel students for speech protected by the First Amendment; and
2. Even horribly offensive, racist speech is protected by the First Amendment generally (sometimes the First Amendment yields uncomfortable results - the Westboro Baptist church has a right to picket funerals with signs like "Fags Doom Nations").

Strangely (especially for a Harvard law professor), Feldman never tells us what a "hostile educational environment" really is. He notes that the principle applies in Title IX (sex discrimination) . . . and it does. The Supreme Court defined the phrase as follows:

[A] plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities.

Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651, 119 S. Ct. 1661, 1675 (1999). I won't take that next step of analyzing whether frat bros singing on a private charter bus among themselves rises to this level, but I did want to fill this noticeable gap in Feldman's analysis.

If you are interested in this topic, the Third Circuit's opinion in Saxe v. State College Area School District addresses the "the very real tension between anti-harassment laws and the Constitution's guarantee of freedom of speech." The Court struck down a high school harassment policy as overly broad, holding that there is no "categorical 'harassment exception' from First Amendment protection." Two fun facts from that case: 1. I graduated from State College Area High School (attended grades 1-12 in that school district); 2. the opinion was written by now-Justice Alito.