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Government,
Ethics/Professional Responsibility,
Civil Rights

Jun. 30, 2022

Expanding speech rights of government employees

There will be litigation over when government employees’ speech can be prohibited because it is within the scope of their duties and or because it will be perceived as the government’s message.

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law

Erwin's most recent book is "Closing the Courthouse" (Yale University Press 2017).

Catherine L. Fisk

Professor, UC Berkeley School of Law

Email: cfisk@berkeley.edu

UC Berkeley SOL; Berkeley CA

Although the focus on Kennedy v. Bremerton School District is rightly on how the Supreme Court created a right to school prayer, what is easily overlooked is how the Court also expanded the free speech rights of government employees more generally.

In 2006, in Garcetti v. Ceballos, the Supreme Court held that there is no First Amendment protection for the speech of government employees on the job in the scope of their duties. Ceballos, a deputy district attorney, discovered a deputy sheriff had lied under oath to get a search warrant. Ceballos wrote a memo recommending the case be dismissed based on the false affidavit. Ceballos also informed the defense attorney that the affidavit contained false statements. Ceballos was removed from a supervisory position and transferred in retaliation.

Ceballos sued, alleging that retaliation for writing the memo violated the First Amendment. The Supreme Court, in a 5-4 decision, ruled against Ceballos and held that his speech was not constitutionally protected. The Court held that there is no First Amendment protection for speech of government employees “pursuant to their official duties.” Although government employees have a First Amendment right when off duty to speak on “matters of public concern,” except where their speech impairs “the proper performance of governmental functions,” the Court held that on-the-job speech is not constitutionally protected. Lower courts have aggressively applied this rule to allow retaliation against employees at all levels of government.

Kennedy v. Bremerton School District is an important qualification of Garcetti v. Ceballos and expands the First Amendment protection of government employees. The case involved Joseph Kennedy, a high school football coach at a public school in Bremerton, Washington. After games, Kennedy, a self-described devout Christian, would kneel at the 50-yard line to pray. Several games into his first season as coach, players began to join him, and these prayer circles grew to include a majority of the team and even opposing team members. A parent complained to the principal that his son “felt compelled to participate” in Kennedy’s religious activity, even though he was an atheist, because “he felt he wouldn’t get to play as much if he didn’t participate.”

Over time, Kennedy began giving short motivational speeches at midfield after the games. Students, coaches and other attendees from both teams were invited to participate. During the speeches, the participants kneeled around Kennedy. The school district ordered that Kennedy cease his religious activities. Eventually, Kennedy openly defied the order and was suspended.

Kennedy sued, claiming that his suspension violated freedom of speech and free exercise of religion. The Supreme Court, in a 6-3, decision with the majority opinion written by Justice Neil Gorsuch, ruled in favor of Kennedy on both claims.

The Court explicitly rejected the school district’s argument that under Garcetti v. Ceballos Kennedy’s speech was not protected by the First Amendment. The Court opined that Kennedy’s on-field post-game prayers with players and spectators “was private speech, not government speech.” The prayer circles, according to the majority, were not “ordinarily within the scope of his duties as a coach. He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as coach.”

Justice Gorsuch also noted that this was a time when coaches were “free to attend briefly to personal matters – everything from checking sports scores on their phones to greeting friends and family in the stands.” Justice Samuel Alito, in a concurring opinion, said that Kennedy creates a new “lull” exception to Garcetti: The “expression occurred while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities. When he engaged in this expression, he acted in a purely private capacity.”

It is clear that the Court has modified Garcetti. A government employee may speak on a matter of public concern, on employer property, during working hours, intended to convey a message to the public, and with others present and watching and even participating, so long as it is not the speech the government pays the employees to do, so long as an observer would not conclude that the employee is conveying the government’s message, and so long as the audience is not compelled to listen.

Government employees can now engage in political or religious speech during their lunch or coffee break. In states that have banned teaching certain perspectives on race, a teacher could discuss the 1619 Project or Critical Race Theory in the classroom, with students, during lunch or recess. If students want to stay inside and listen or participate, they have a right to do so, and the teacher has a right to allow it. Of course, teachers also could pray or advocate conservative views.

There will be litigation over when government employees’ speech can be prohibited because it is within the scope of their duties and or because it will be perceived as the government’s message. Yet, in holding that a coach can pray on the field, with players, just after a game, the Court expanded free speech rights of all government employees.

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