Has The Supreme Court Slightly Opened The Free Speech Door?

This article appears in the September 2022 issue of our monthly newsletter, Public Safety Labor News.

It is hard to overstate the impact on public safety employee free speech rights produced by the 2006 decision in Garcetti v. Ceballos. In Garcetti, a deeply-divided Supreme Court overturned more than 40 years of public employee free speech law. The decision held that if speech is “ordinarily within the job duties” of the public employee, it has no constitutional protection under the First Amendment.

Garcetti has led to public employees losing well over 95% of the free speech cases they file in federal court. As an example, whistleblowing speech – exposing illegal conduct on the part of other public employees – used to have the highest level of constitutional protection. Under Garcetti, if the whistleblowing speech is made through the chain-of-command, it almost never has any constitutional protection.

But it is possible that a June 2022 Supreme Court decision involving a part-time high school football coach who refused orders to stop praying on the 50-yard line after games may have opened the public employee free speech door just a crack. The case involved Coach Joseph Kennedy of the Bremerton School District in Washington, who invited his players to kneel and pray with him on the 50-yard line after the end of games.

Kennedy’s prayers eventually evolved into “postgame talks in which Kennedy would hold aloft student helmets and deliver speeches with overtly religious refer­ences.” After one game, members of the public rushed the field to join Kennedy, jumping fences to access the field and knocking over student band members.

The District received calls from Satanists who “intended to conduct ceremonies on the field after football games if others were allowed to.” Kennedy made media appearances in support of his actions. The District made security arrangements with the local police, posted signs near the field and placed robocalls to parents reiterating that the field was not open to the public.

When Kennedy refused to comply with the District’s orders that he stand down, the head varsity coach recommended that Kennedy not be rehired. The head coach resigned, expressing fears that he or his staff would be shot from the crowd or otherwise attacked because of the turmoil created by Kennedy’s media appearances. Three of five other assistant coaches did not reapply.

Kennedy then sued, claiming that the District violated his freedom of religion rights under the First Amendment.

What does any of this have to do with Garcetti? Kennedy was a public employ­ee who was on duty at the time of his prayers. The Garcetti question was whether Kennedy met his burden of proving that his prayers and speeches did not arise out of his job duties.

In a 6-3 decision, the Court found that “Kennedy was not engaged in speech ordinarily within the scope of his duties as a coach. He did not speak pursuant to government policy and 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 a coach.

“Simply put, Kennedy’s prayers did not owe their existence to his responsibilities as a public employee. The timing and circumstances of Kennedy’s prayers – during the post­game period when coaches were free to attend briefly to personal matters and students were engaged in other activities – confirms that Kennedy did not offer his prayers while acting within the scope of his duties as a coach.

“It is not dispositive that Kennedy served as a role model and remained on duty after games. To hold other­wise is to posit an excessively broad job description by treating everything teachers and coaches say in the work­place as government speech subject to government control. That Kennedy used available time to pray does not transform his speech into government speech.”

Immediately, public safety attor­neys started blogging and otherwise wondering aloud what the impact of Kennedy would be on public safety free speech cases. What, for example, would be the result if an on-duty fire­fighter posts on her social media page (which identifies her as a firefighter) something the employer thinks is offensive? Or, if a uniformed police officer participates in a pro-choice or pro-life march during his meal period? Or, if an officer at the scene of an officer-involved shooting tells the local media that the incident would not have happened but for the department’s pursuit policies?

It may well be that a bit more light is shining on public employee free speech rights. Or, it may be that the Court intended to limit its Garcetti analysis to only religious speech. Time will tell.

Kennedy v. Bremerton School Dis­trict, No 21-418 (2022).

Also in the September 2022 issue:

  • Court Has No Jurisdiction To Interpret Labor Contract
  • Garrity Offers No Protection For Dishonesty
  • Officer Or Mother? It Matters For Pension Forfeiture
  • Employer Not Liable For CO’s Murder Attempt
  • Confederate Flag Costs Sergeant Her Job
  • Pre-Disciplinary Hearing Must Precede, Not Follow, Sustaining Of Complaint
  • Last Chance Agreements Are Enforceable If ‘Precisely Written’
  • Corrections Officers Lose Challenge To Solitary Confinement Settlement
  • Court Grants Hawai’i Battalion Chiefs Raise
  • Dispatchers Win Trial On Inmate Search Issue
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