Supreme Court building in Washington, D.C. (Photo: Adam Parent/Dreamstime)

In 2006, five justices restricted the free-speech rights of public employees; in 2017, we see the consequences.

The Ninth Circuit Court of Appeals ruled this week that a high-school football coach, Joseph Kennedy, had no First Amendment right to kneel and briefly pray at the 50-yard line after a football game — at least not when he’s wearing school gear and not when parents and students can see what he does. He never asked anyone to join him. He never required any player to pray beside him. He wasn’t skipping out of any mandatory job responsibility. He had no captive audience. Yet, still, the court held that he had no First Amendment right to pray.


Why not?

It would be easy, after decades of watching the Ninth Circuit in action, to ascribe the outcome to classic judicial anti-religious bias. In fact, there was a concurring opinion in the case that absurdly argued that the school district would violate the establishment clause if it allowed its coach to publicly take a knee immediately after the game. (One can only imagine the Founders’ hysterical laughter at the notion.) The true culprit, however, wasn’t the Ninth Circuit. It was the Supreme Court of the United States. No, actually, it was the conservative wing of the court. Yes, that’s right. The conservatives.

In 2006, Justices Kennedy, Roberts, Alito, Thomas, and Scalia voted together in a case called Garcetti v. Ceballos to substantially restrict the free-speech rights of public employees. Formerly, employees of federal, state, and local governments (including public-high-school football coaches) enjoyed freedom to speak on matters of “public concern” so long as their speech didn’t interfere with the government’s “effective and efficient fulfillment of its responsibilities to the public.” The balancing test represented a speech-protective effort to provide the public with the benefits of free speech while still protecting the rights of the employer to manage the workplace.


Under this classic test, the football coach wins, easily, unless the Ninth Circuit court is overcome by anti-religious bias. All sides agreed that his religious speech dealt with matters of public concern, and there is simply no credible argument that his short prayer interfered with the school district’s ability to fulfill its responsibilities. It could only argue that the prayer violated the establishment clause — a perversion of classic First Amendment doctrine.


With Garcetti, however, the world changed. The Supreme Court’s holding in that case was brutal and short: “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Let’s put this in plain English. If an employer can prove that the public employee was speaking as part of his job, then the First Amendment flat-out does not apply, no matter the public importance of his speech. That means the public employer has essentially “purchased” the speech of its employees. And if you think that means that public workspaces are now blessedly apolitical, think again. Essentially, Garcetti empowers taxpayer-supported government entities (especially schools) to become propaganda mills — relentlessly pushing state-approved views while simultaneously crushing any internal dissent.

For salaried employees who have open-ended job descriptions, ‘on your own time’ often means ‘when you’re so clearly separated from your employment that no one will listen.’


Do you ever wonder why schools are increasingly and uniformly “woke”? Do you wonder why dissenting teachers tend to keep to themselves? Moving beyond schools, are you frustrated that bureaucracies appear impervious to public accountability and that it’s difficult to expose government corruption? Well, you can partly blame Garcetti.


The government isn’t Google. It’s not Apple. It’s not Exxon. No matter how large and powerful a private corporation gets, it cannot compel you to pay it money, and it does not ultimately wield the sword to enforce its edicts. There is an immense public interest in the ability of public employees to act as whistleblowers, to express dissenting ideas, and to spur public discussion of consequential issues. Yet the Supreme Court now says, “On your own time only, or face the consequences.”

But when dealing with salaried employees who have open-ended job descriptions, “on your own time” often means “when you’re so clearly separated from your employment that no one will listen.” That’s exactly what it meant for Coach Kennedy. Despite the fact that the game was over, that he wasn’t exercising authority over any player, and that he had no specific, assigned task at the time of his prayer, the court held that his speech was part of his “official duties.” When duties are broadly written, duties are broadly construed, and speech is relegated to a time and place where it has minimal impact.

Our governments do not suffer from too much accountability. They are not crippled by too much dissent. It does not damage a relentlessly secular public-school establishment to have the occasional football coach take a knee after a game. Woke public-school bureaucracies could benefit from intellectual diversity, and sometimes a public employee needs to blow the whistle on manifest wrongdoing. In fact, the government (including the Supreme Court) should view free speech as an asset to be cultivated, not a problem to be managed.


I hope Coach Kennedy appeals. I hope he gives an otherwise solid conservative Supreme Court majority an opportunity to right one of its worst free-speech wrongs. Public-school teachers are citizens too, and they, like the students they teach, don’t shed their constitutional rights at the schoolhouse gate.

READ MORE:

Legal Radicals Don’t Want the Separation of Church and State

SCOTUS Delivers Big Win for Religious Liberty

SCOTUS and the Need for Smarter Second Amendment Jurisprudence