First Amendment News

First Amendment News 245: Chemerinsky Files Cert. Petition in Government Employee Speech Case

March 11, 2020
Prof. Thomas I. Emerson (1907-1991)

“The main purpose of the book has been to formulate the legal foundations for an effective system of freedom of expression.”

Thomas I. Emerson

At the outset of this issue of FAN I’d like to flag an important anniversary, one involving a seminal work on free speech in America. I refer to Thomas Emerson’s “The System of Freedom of Expression” (Vintage Books, 1970). Before the birth of the internet, lawyers, judges, and scholars relied heavily on Emerson’s work when it came to free speech questions.

In many important ways, Emerson’s book was a work like no other. Yes, there was Zechariah Chafee’s “Free Speech in the United States” (1941, ’42, ’48), but Emerson really brought the First Amendment into modernity in ways that Chafee could not, in areas ranging from legislative investigating committees to obscenity, from libel and privacy to academic freedom, and from “affirmative promotion of freedom of expression” to “government participation in the system of freedom of expression.” (It would make for a valuable contribution to First Amendment scholarship for some scholar — say, Jerome Barron, Vincent Blasi, or David Rabban? — to compare and contrast the two works.)

Suggestion: Why doesn’t some law review sponsor a symposium on Emerson’s great book and invite 20-page, or so, commentaries on the work? Some possible contributors are the following individuals (practicing lawyers and scholars), among others, to be sure:

  • Floyd Abrams
  • Akhil Amar
  • Jack Balkin
  • Jane Bambauer
  • Jerome Barron
  • Vincent Blasi
  • Joseph Blocher
  • Lee Bollinger
  • Erwin Chemerinsky
  • Robert Corn-Revere
  • Daniel Farber
  • Owen Fiss
  • Kent Greenawalt
  • Linda Greenhouse
  • Jameel Jaffer
  • Bruce E.H. Johnson
  • Leslie Kendrick
  • Lee Levine
  • Adam Liptak
  • Catharine MacKinnon
  • Helen Norton
  • Robert Post
  • David Rabban
  • Martin Redish
  • Robert D. Sack
  • Frederick Schauer
  • Steven Shiffrin
  • David Skover
  • Paul M. Smith
  • Rodney Smolla
  • Stephen Solomon
  • Geoffrey Stone
  • Nadine Strossen
  • Laurence Tribe
  • Laura Weinrib
  • Timothy Zick

Professor Emerson successfully argued a First Amendment case in the Supreme Court, Sweezy v. New Hampshire (1957), and also wrote “Toward a General Theory of the First Amendment,” Yale Law Journal (1963, later a book published in 1966).


This Supreme Court term seems to be a time of law professors filing cert. petitions in First Amendment free speech cases. For example, there is the petition filed by Delaware Law School dean and professor Rodney Smolla in Carney v. Adams, a judicial election law case (cert. granted). Then there is the election law case Chiafalo v. Washington (consolidated with Colorado Department of State v. Baca) in which Harvard University professor Lawrence Lessig is the counsel of record (cert. granted).

Now yet another law professor has joined the mix: Dean Erwin Chemerinsky. His case is Waronker v. Hempstead Union Free School DistrictThe two issues raised in the case are:

  1. Whether the First Amendment protects the speech by a public official that is required by law and that reports and exposes corruption.
  2. Whether speech by a public official reporting misconduct to external government officials, outside the chain of command, is protected by the First Amendment, as held by the Fifth, Ninth, and Tenth Circuits, or whether such speech is unprotected under Garcetti v. Ceballos as held by the Second Circuit in this case and by the Sixth and District of Columbia Circuits.

Facts 

Dr. Shimon Waronker

As alleged by the Petitioner’s counsel:

Dr. Shimon Waronker was hired as the Superintendent of the Hempstead Unified Free School District to transform its schools and to remedy a history of academic problems, financial mismanagement, and corruption. As Superintendent, he discovered corruption which he reported to law enforcement officials as he was required to do by law. After he informed the Board of Education and the community of his actions, he was suspended and then fired. He lost his job for speech that was required by law, that was public, and that reported and exposed corruption.

CBS News video clip (includes reply from school district)

Legal Arguments 

In writing the majority opinion in Garcetti v. Ceballos (2006) Justice Anthony Kennedy declared:

We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions. The proper inquiry is a practical one.

It is precisely that “practical” inquiry that Chemerinsky is asking the Court to conduct in this government employer retaliation case. Drawing on Justice Samuel Alito’s opinion for the Court in Lane v. Franks (2014), Chemerinsky points to the language in that case that he argues is on point with the facts of his case:

Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment. . . .

After all, public employees do not renounce their citizenship when they accept employment, and this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights.

And finally, this passage from Lane:

The importance of public employee speech is especially evident in the context of this case: a public corruption scandal. . . .

Circuit Split

In urging the Court to review his case, Chemerinsky writes:

The confusion over how to determine what is speech as a “citizen” as opposed to as a government employee has produced many splits among the Circuits. This case provides an ideal vehicle for clarifying the law in this important and much litigated area.

Lower Court Opinions 

Federal district court opinion

 Second Circuit court opinion

Challenge to UT ‘Bias Response Team’ Policy Argued in Fifth Circuit

As George La Noue wrote in Law & Liberty:

[T]he Fifth Circuit Court of Appeals [recently heard] arguments in Speech First v. Fenves. Six amicus briefs joined by nine organizations—several with national profiles—were filed with the court in August 2019 supporting the Speech First organization’s lawsuit against the University of Texas (UT) over its bias response team (BRT) policies. UT has hired outside counsel to defend. What is so important about this case? The BRT for UT’s 52,000-student campus is called the Campus Climate Response Team (CCRT) and it is empowered to investigate and sanction any speech that is perceived to be discriminatory based on “race, color, religion, national origin, gender, gender identify, gender expression, age, disability, citizenship, veteran status, sexual orientation, ideology, political views, or political affiliation.” According to UT’s administrative rules, speech should be reported if perceived as “offensive, insulting, insensitive, or derogatory” and occurring “in the classroom, on social media, at a party or student organization event.” . . . .

Federal District Court Judge Lee Yeakel . . . held that UT had the right to balance free expression with civility and that the student plaintiffs who wished to remain anonymous had weakened their standing to complain. He also accepted UT’s assertion that, although administrators followed up on the complaints and held hearings, they did not actually discipline offenders of the desired campus climate. Thus the Plaintiffs had no “objective fear” of censorship.

Related

Trump Campaign’s Latest Lawsuits Against the Press

“The [latest] lawsuit, filed in federal court in Georgia, is the third time the Trump campaign has sued a news outlet in the last two weeks” — Gene Maddaus, Variety (March 6)

Related

Volokh: ‘Would a Ban on Handshaking Be Constitutional?’

The ever-inquisitive and analytical mind of UCLA Law professor Eugene Volokh asks: “Would a Ban on Handshaking Be Constitutional? Not that I’m suggesting it, but it’s an interesting con law hypo.” Here are a few excerpts from The Volokh Conspiracy:

Prof. Eugene Volokh

Say the government outright forbids handshaking, on the theory that it needlessly risks spreading illness (illness that, whether for COVID-19 or for ordinary cold and flu, creates some risk of death for some third parties). . . . [I]t seems to me that social pressure (perhaps supported by recommendations by a cross-the-aisle coalition of government officials) is a much better solution to that problem than outright prohibition. Still, say the government institutes such a ban; would it be constitutional?

[1.] The First Amendment: A handshake is a classic form of symbolic expression . . . [Though covered by the First Amendment], handshaking ban would be a classic example of a restriction on symbolic expression that is justified by the noncommunicative impact of the expression—it’s not about the message, but rather about the risk that the conduct transmits germs entirely without regard to the message. . . .

[2.] The right to intimate association: You have a right to choose your friends, likely your roommates, fellow members of small, selective clubs, and the like. (Your right to choose your lovers, see Lawrence v. Texas, may be seen as a facet of this same right.) But restrictions on handshakes, even with friends, are unlikely to be seen as a “substantial burden” on the right.

[3.] The right to do what one wants with one’s body: The Court has never recognized a general right to use one’s body as one likes; outside some specifically recognized rights, such as rights of intimate association, sexual autonomy, or freedom from unwanted intrusive medical treatment, any restriction would only need to be rationally related to a legitimate government interest. This one would surely qualify.

[4.] Federal power: So far, what I’ve said applies to state and local restrictions; if the federal government wanted to impose such a ban, the ban would not only need to comply with the Bill of Rights, but would also have to be within the federal government’s enumerated powers. . . . It might be restrictable . . . on the theory that such a restriction is “necessary and proper” to “regulate commerce … among the several states,” since people who are infected in one state can easily move into another.

[5.] Government as employer, educator, and the like: All that I’ve said above involves the government acting as sovereign . . . .  The government as employer, educator, and the like would likely have much greater authority. In particular, the federal government could certainly impose such a restriction on federal property and in federal workplaces.

The Woody Allen Memoir Controversy: Stephen King Condemns Hachette Book Group

This from Joseph A. Wulfsohn at Fox News:

Author Stephen King condemned Hachette Book Group for dropping the Woody Allen memoir amid amounting pressure, saying the decision makes him feel “very uneasy.”

Hachette announced on Friday that it would not be releasing the film director’s book following a staged walkout from the publisher’s employees and condemnation from “Catch and Kill” author Ronan Farrow.

“Hachette Book Group has decided that it will not publish Woody Allen’s memoir ‘A Propos of Nothing,’ originally scheduled for sale in April 2020, and will return all rights to the author,” the publisher said in a statement to Fox News. “The decision to cancel Mr. Allen’s book was a difficult one. At HBG we take our relationships with authors very seriously, and do not cancel books lightly.  We have published and will continue to publish many challenging books.  As publishers, we make sure every day in our work that different voices and conflicting points of views can be heard.”

Forthcoming Book on Free Speech Theory


The rallying cry of “Free speech!” has long served as a touchstone for liberals and conservatives, alike, engaged in political polarization conflict and discourse. The democratization of media and the feverish pitch of political polarization, however, have contributed to the weaponization of free expression. From Colin Kaepernick to “fake news,” boycotts of partisan television programming to removals of Confederate monuments, internet neutrality to the silencing of college professors and all points between, citizens and pundits all too frequently wield the slogan of “Free speech!” as the sword and shield of political discourse. Oftentimes, ironically they do so with little regard for the views of their opponents. As a result, society risks trading a substantive value for an empty slogan or, far worse, blind authority.

To rediscover the underlying assumptions and social values served by free expression, and to move current controversies beyond rhetorical flourishes, Helen J. Knowles and Brandon T. Metroka assemble an impressive group of legal and political scholars to address one overarching question: “Why should we value free speech?” Through analyses of several recent controversies invoking concerns for free expression, the contributors to this volume make complex political theory accessible, informative, and entertaining. Beginning with internet neutrality and ending with an overview of developing free expression controversies in comparable western democracies, experts reestablish the link between free expression and the underlying values it may serve. In doing so, this volume unearths values previously unexamined in our modern―but increasingly impoverished and bitter―political discourse.

Other Forthcoming Books 

Berkeley: The Student Revolt

“There’s a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can’t take part! You can’t even passively take part! And you’ve got to put your bodies upon the gears and upon the wheels … upon the levers, upon all the apparatus, and you’ve got to make it stop!”

These fiery words of protest, spoken by Mario Savio during the Berkeley Free Speech Movement, became a call to action that helped galvanize an entire generation of radicals during the 1960s. Led by student politicized through the fight for Civil Rights, the movement would reshape the American left and influence a generation of protesters across the globe.

In this rousing and insightful participant’s account, Hal Draper recounts the now iconic events of the FSM. From the impromptu speak out atop a police car after the administration decided to clamp down on students “distributing communist literature,” to the inspiring Student Strike that shut down the entire campus, Draper’s narrative captures the energy and dynamism of each twist and turn in the struggle, and offers invaluable analysis along the way.

In the Works: Book on History of Global Free Speech

Three New Scholarly Articles

Data scraping—the automated collection of data on the internet—is used in a variety of contexts. On the commercial side, scraping might be used as a means of competition—such as scraping by one company to retrieve information on prices for services provided by a competitor. On the noncommercial side, scraping could be used as a research tool—such as scraping by a news outlet to investigate Amazon’s pricing algorithm. Despite the varied applications of data scraping, courts’ varying inter­pretations of the Computer Fraud and Abuse Act (CFAA) can impose both civil and criminal liability for scraping. This Note argues that there are competing First Amendment interests both in favor of and against scraping, depending on the type of scraping conducted. Because the CFAA does not distinguish between various types of scraping and bal­ance these competing interests, a legislative solution is needed to comport with both First Amendment interests of accountability and political self-governance on one end, and privacy on the other end.

John Vile on Frederick Douglass & Free Speech

Press Release: Hugh M. Hefner Foundation Seeks Nominations, Announces Judges for First Amendment Awards

 The Hugh M. Hefner Foundation is seeking nominations and announcing the independent panel of judges selected for the 2020 Hugh M. Hefner First Amendment Awards, which is celebrating its 40th anniversary this year. The Hugh M. Hefner Awards are hosted annually to honor a group of individuals for their work to protect and enhance First Amendment freedoms for all Americans, and help educate and raise awareness of modern-day threats to free speech and free press in the U.S.

The nomination application form can be found here. The submission deadline for consideration in the 2020 First Amendment Awards is March 27, 2020.

The Awards were founded by Christie Hefner in 1979 and have honored over 150 individuals in journalism, education, law, book publishing, government and entertainment.

Christie Hefner said, “The First Amendment Awards remind us of the modern-day challenges to our First Amendment rights. Threats still exist, but our constitutional right to free speech and expression remain intact because of the brave individuals who have been honored over the past 40 years. During the Awards, we recognize and celebrate the work of these everyday American heroes – high school students, lawyers, librarians, journalists and educators – who took a bold stand against infringement on their rights or the rights of their fellow Americans to protect our basic American rights.”

The awards ceremony will be held at the National Press Club in Washington, D.C. in summer 2020. Details about the event will be provided when the winners are announced in spring 2020.

The Hugh M. Hefner Awards Judges
Winners will be selected by a panel of independent judges. The 2020 judges are:

Theodore J. Boutrous, Jr., Partner at Gibson, Dunn & Crutcher LLP, and global Co-Chair of the firm’s Litigation Group. Boutrous received the 2019 Hugh M. Hefner First Amendment Award in the Law category for his work on behalf of CNN and Jim Acosta in connection with the restoration of Acosta’s White House press credentials after the White House suspended Acosta’s press access. Boutrous also received the 2020 Freedom of Press Award from the Reporters Committee for Freedom of the Press and the Distinguished Leadership Award by PEN America in 2019 for his leadership in advancing rights and protecting freedom of expression.

Kyle Pope, Editor-in-Chief and Publisher of the Columbia Journalism Review, a magazine for professional journalists that is published by the Columbia University Graduate School of Journalism. The Columbia Journalism Review is referred to as “the voice of journalism.” Pope previously served as deputy editor of Conde Nast’s late Portfolio magazine, editor in chief of The New York Observer, and as a reporter, foreign correspondent, and editor during his decade career at The Wall Street Journal.

Allison Stanger, Russell Leng ’60 Professor of International Politics and Economics at Middlebury College, and Author. Stranger recently authored a timely new book about the history of whistleblowers in the U.S. titled Whistleblowers: Honesty in America from Washington to Trump. Stanger received the 2018 Hugh M. Hefner First Amendment Award in the Education category for her work defending the free exchange of ideas on college campuses after an incident at Middlebury College. Stanger, a liberal professor, helped promote a speaking event on campus featuring a conservative social scientist who was invited by a student group; she was injured during a violent confrontation after the event.

About the Hugh M. Hefner Foundation
The Hugh M. Hefner Foundation was established to work on behalf of individual rights in a democratic society.  The primary focus of the foundation is to support organizations that advocate for and defend civil rights and civil liberties with special emphasis on First Amendment rights and rational sex and drug policies. For a complete list of past winners and judges, please visit: hmhfoundation.org/winners-judges

So to Speak Podcast on Rap Music

At a time when artistic expression has never enjoyed greater First Amendment protection, rap music has seemingly been left behind. Rap lyrics are routinely used as evidence by police and prosecutors to justify arresting and charging suspects for all manner of alleged crimes.

In their new book, “Rap on Trial: Race, Lyrics, and Guilt in America,” authors Erik Nielson andAndrea L. Dennis identify approximately 500 cases where the violent and aggressive themes within rap lyrics were used against defendants in court.

On today’s episode of So to Speak: The Free Speech Podcast, host Nico Perrino speaks with Nielson and Dennis about their book, in which they argue that no other form of creative expression — or genre of music — is treated the same way as rap by the law. “That’s why we call this book ‘Rap on Trial.’ It’s not art on trial. It’s not music on trial. It’s rap on trial.”

News, Editorials & Op-eds

2019–2020 SCOTUS Term: Free Expression & Related Cases

Opinions or Judgments Handed Down

Cert. Granted

Pending Petitions

Petitions Denied

First Amendment Related 

First Amendment Related: Cert. Denied

Last Scheduled FAN

This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.