- [Andrew] Hello and welcome to our CLE on viewpoint discrimination and symbolic speech. Wow, those are like big words, and I don't know if they summarize what it is we're talking about. They're the legal terms, and we want to know about viewpoint discrimination and symbolic speech. But really this is about, can the government, as an employer, as an educator, can they restrict what teachers and students are saying in displaying in the schools? And if they do, is that actionable? Is it actionable as a 1983 claim? Is it actionable because it's violating the First and 14th Amendment? We wanna know these things, and I don't know if you've been watching the news. I like to watch the news. It seems like a big deal. It seems like Governor DeSantis has taught us about going anti woke, and anti woke has transcended into restricting what type of speech you've done in the classroom. And I'm not telling you that's good or bad policy or politics because we're not politicians, we're lawyers. The question is, is it legal? That's what really what I wanna know. Can you do these types of things? Is this the law? Anyway, in teaching you viewpoint discrimination and symbolic speech, my name is Andrew Lieb. You could look me up on the Google. I like the Google. Just type in Andrew Lieb. I am on TV regularly. I was on Fox last night. I was on Court TV yesterday. Few radio channels. Just check me out. I'm all over the place. I also run up my own podcast called "The Lieb Cast." You can put that on any podcast player and find out more about me and some of my views because every week, we do a podcast, and we touch on all the latest news in the law and how it interplays into politics and other stuff like that. So here's my information, here's about me. You could give me a call if you have questions after this CLE at 646 216 8009, and I'll be happy to discuss it with you. I like talking about this stuff because I get motivated when I read things in the law, when I hear things on the news and I say, "I don't think they're really talking about this concretely." And one of those things that really popped for me was this Florida's HB 1557, you might have heard, it is the Don't Say Gay bill. This is that law that was effective on July 1st, 2022. So right now, we're a little over a year on it. Florida likes to call it the Parental Rights in Education Act. This is the Don't Say Gay bill, but if you know we have a colloquial thing that we all talk about it, the news gives it to us, they label it, and then we have the official name of the bill if you were to go into the legislation. So HB 1557 is the Parental Rights in Education Act. But here's the part that's interesting to me. It prohibits classroom discussion about sexual orientation or gender identity in certain grade levels or in a specified manner. Now, the public is saying, is that a good idea? Is that a bad idea? I will tell you that I have a master's in public health and I used to teach human sexuality in college. So I have my own position on that, and I could go into the policies if you'd really like about why it's a good idea to educate people about all the different aspects and thoughts about sexuality. And if you don't do that and you don't educate, even on the younger thing, you're throwing people into a water without being prepared to swim. Now, we don't need to teach overt sexuality in the schools, but it's a good idea as far as we've learned from social science research. That all being said, I could care less for purposes of this CLE. Here's the part that got me interested for the purposes of this CLE, whether you agree or disagree with the policy, 'cause everyone's entitled to their own opinion. It says, "Prohibit classroom" and here's the keyword discussions. And when I hear the word discussions, I say freedom of speech, freedom of speech, freedom of speech, and freedom of speech sounds good and it's important and we all care about freedom of speech in the United States, but what we care more about as lawyers is violation of the constitution provides for a 42 USC 1983 claim for a deprivation of rights. Is it possible that the government is restricting speech and therefore, they're subject to suit? If you represent schools, if you represent teachers, if you represent students alike, whether you're dealing as an attorney that deals in Title VII with respect to employment, Title VI and Title IX when it comes to education or you're just dealing with your own state like I'm in New York and we're caring about Executive Law 296 and specifically subdivision four when it deals with education. You're thinking about this, and I want you to know, I'm gonna say it again in a second, but I want you to know we're not talking about any of those discrimination laws in this CLE. All I want to know is when Governor DeSantis signed this law, the Parental Rights in Education Act, and he prohibited classroom discussions, could the government prohibit discussions? Is that legal? And you might be thinking I'm picking on DeSantis, but I want you to know there's other states too. There's other states with Don't Say Gay type legislation. You got Texas and Oklahoma and Louisiana and Mississippi and Alabama and Florida. In fact, I'm gonna give you an interactive map. You could go check it out. If you were just to go to www.lgbtmap.org/ equality-maps/curricular space laws, you would find, it's underscore laws. You would find, sorry, I don't mean to say space. You would find a map of how this is evolving throughout the country. And I have to tell you, it's not just the states. We're seeing this in counties and more importantly, the board, the school board on the local level is doing this. Can they restrict discussion and speech? Well, governor DeSantis in Florida has already been met with a lawsuit, and this lawsuit is by what's called MA, by and through his parent Amber Armstrong et al. versus Florida State Board of Education et al. I always find it interesting because I do a lot of this litigation. We're a big discrimination law firm. That's what we do. Discrimination law. And I have certain cases that overlap with this conversation, but I can't really talk about them as you know with attorney-client privilege. But I always find it interesting that they're like, "We're gonna protect the minor by not using their names, but we'll tell you their parents' name." They don't understand that on the Google, on these days, that by giving the parent's name, you'll find the minor's name if you're really that curious. But that's another story for another day. Anyway, I give you the case number of 4:22-cv- 134-AW-MJF. If you just Google it, you'll probably find it. It's the Northern District of Florida and in its infancy, they have their second amended complaint going on, but it's worth following and understanding what's going on. But here's the questions I have. These are the questions for you. These are the questions I want you to be thinking about while we go through today's CLE. Where are the limits? That's a good question. Can teachers and students or students and teachers be stopped from wearing LGBTQ+ symbols? I guess the question is, what's discussion? Remember, I started off this CLE by telling you we're talking about symbolic speech. Is it a discussion to wear a symbol? If you wore a pride flag, if you had a rainbow, if you had a progress flag, you just had two men kissing on top of a wedding cake on your shirt, what is it about this law and where's the line of the law? We use the word discussion, but that's a colloquial term. And what does discussion even mean? I think that's part of the problem with this law in the first place. But let's assume for argument's sake that it's fine the way it's drafted. I'm not even going there. Does the discussion include stopping symbolic speech if symbolic speech is a discussion? And assuming symbolic speech isn't a discussion, let's imagine there's a flag or a banner hanging. You're gonna hear in today's course. What about a teacher? Let's just do it from another, say. You might go, "LGBTer here." There was a coach that had, we're gonna talk about this later, coach that had a school, the college, they put up a Black Lives Matter poster and he took it down, he put a All Lives Matter poster. What about that symbolic speech. I have another question about that. Let's assume you could do that, but how is the teacher already has, let's imagine just a second-grade classroom for a second, already has crazy kids. I have a fourth grader right now and a three-year-old and I could tell you, I could just imagine having 20 something fourth graders or second graders or first graders and they're all saying what they're thinking all day and they're all misbehaving and they're running around, they're screaming, they're talking and they're doing and they're doing and they're doing and they're doing. Here's my question. Assuming the teacher could have up an LGBT flag or the coach could have a All Lives Matter flag, or could there just be a picture of a lesbian teachers, same-sex wife and her on her desk, assuming you did things like that, what happens if the kid comes up and asks questions? Is it a classroom discussion to say, "Oh, that's my wife." Is that breaking the line of it? Where are the lines here? How do we know the line? What happens if one of the kids has a same-sex uncle in a same-sex marriage and they say, "What'd you do this weekend?" Everyone tells what you did. "I went to my same-sex uncle's wedding." Can you have that discussion? When you make lines of speech of discussions, this is how about displaying pictures of same-sex parents, spouses? Can they be banned? You see, it's one thing to say we can't talk about obscenity. You know, we have obscenity law versus pornography law. You can restrict obscenity, but you can't restrict pornography. We know one of obscene based on community standards. We could thank Larry Flint for that conversation. That's another day. But when we're talking about right over here, when we're talking about this, where are these lines? And I'm not gonna answer the questions for you today for two reasons. Number one, I'm kind of confident at some point this is a Supreme Court question and these people are smarter than I am. Number two, I have active litigation on it. What I'm gonna do is explore the topics in the case law so you can understand what you should be thinking about, how should your worldview go, how should you be analyzing whether you're a practicing litigator that's in the cases, whether you're an outside general counsel to school districts and boards or legislators or just if you're a citizen and you're caught up over a glass of wine with your friends at their house and they bring up one more time and they say, I can't believe they're teaching sex to the little kids. They're trying to make these kids, they're gonna, they're, grooming. That's the things people like to say because we get caught up in the political arena and seem to think that talking about sexuality is the same thing about talking about intercourse. Two different topics for two different days. We are not talking about intercourse or obscenity whatsoever in today's course. Instead, what we're talking about is gender identity, orientation, family, family values, what can be said and what can't be said, what can be symbols and what can't be symboled. Let's go over the topics. The breath of what constitutes speech under the First Amendment is the first question. Are these posters and banners and shirts then armband? Are they speech? Are they protected by the First Amendment? And as I'm sure you all know, I say the first, I'm talking about the 14th as well, there's the first with respect to the federal government, and these laws are generally by the states which are applied by the 14th Amendment, but you don't really need a one-on-one civics lawsuit and you're an attorney. Topic two, we're gonna differentiate between permissible and impermissible restrictions of speech in our schools. It's not a yes, they can or no, they can't. There's lines to be drawn. Where are those lines? What is the precedent that teaches us those lines? How do we understand how the constitution's interpreted? Thankfully last year, the US Supreme Court took up a case on speech in schools so we have some fresh understanding about what the sixth three conservative majority thinks about speech in schools, teachers' rights, or in that case, coaches' rights. And we'll get into that. Number three, I know you're gonna learn about Tinker in today's CLE if you haven't heard about it before. And Tinker doesn't differentiate between teachers and students. Tinker tells us that they all have First Amendment rights even when they're in school, and we'll get in there. But what about identifying heightened rights of the government as an employer as opposed to an educator in restricting speech? Is there a difference between teachers and students doing the speaking? I wanna understand that. We're gonna talk about that, too. And speaking of that, there's a case called Garcetti. It's a Supreme Court case, you might have heard of it, that talks about how the government can restrict its employee's speech. And Garcetti's not in the school setting whatsoever, but there's a tension there of Tinker saying on one side, "you don't lose your First Amendment rights when you go into a school." And on another note, Garcetti says, "The government can restrict teachers' speech sometimes." And I think the sometimes is the key. So we're gonna explore the tension between SCOTUS' decisions, Supreme Court of the United States, in Tinker and Garcetti when it comes to teachers' free speech. Anyway, I wanna give you my disclaimer one more time. And it's important, again, because I litigated in this area. We're only talking about First Amendment. We are not talking about anything with respect to these things when it comes to federal, state, or local anti-discrimination laws. I'm not telling you that even, even if the Don't Say Gay bill in Florida passes constitutional muster under the First Amendment, assuming it did, which I'm not saying it does, assuming it did, I'm not saying that it doesn't violate Title VII, Title VI, Title IX or other laws. I know Florida has very limited anti-discrimination laws, but places like California and New York have some heightened ones. Anyway, let's start off at the beginning. The breadth of what constitutes speech under the First Amendment begin and on the 14th. Here's what it says, in the US Constitution on the First Amendment when it comes to speech, these are the words we live by, these are the words we understand, these are the words that this whole class is about. Congress, and again, by the 14th Amendment, the states, shall make no law abridging the freedom of speech. Well, if you go back, you can't have discussions. Can't having discussions on its face seems to be an abridgement of the freedom of speech. So it seems like on a, unless I'm stupid and I can't read, it seems they can't do it. The interesting thing about all these social media lawyers that we read everywhere, and when I say that, I don't mean you as a lawyer working on social media, I mean all the people fighting with me on Twitter every day about things that tell me I should go take a social studies class again after I'm on TV, is they don't understand how the constitution says something, but we have interpretive case law that makes us understand it otherwise, they read it on his face, they don't understand that there's context. But anyway, no law abridging the freedom of speech. So where does symbolic speech fit in? These speech isn't just words. What about what you wear, what you post, what you express, what you display? Here's the test. It's a case, a case from 1974, a Supreme Court case called Spence v. State of Washington. Here's the test. Whether an intent to convey a particularized message was present. I have a picture of me and my same-sex spouse. I actually have a opposite sex spouse. But let's assume I have a same-sex spouse. I have a picture of the both of us. I'm trying to convey something. I have an intent to convey with that picture that I have a loving, supporting, wonderful family. It's wholesome. Family values. Next part of the test, and it's a conjunct of not a disjunctive. Whether in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed? Well, I have it on my desk. Everyone puts a picture of their family on the desk. They don't understand the message. Anyway, lemme tell you a case. I told you about the case a second ago, but I'm gonna tell you what the case is in Spence v. State of Washington, Washington had a flag statue. It would've been a good time now with all these Blue Lives Matter flags and Trump flags flying around to see some of this. But anyway, it's always interesting to me how a law by a conservative is what brings down a conservative cause and a law by a liberal is what brings down a liberal cause. People don't think about the logical extreme of whatever law they pass when they're passing legislation in the first place. That's neither here nor there. Not part of this conversation. But anyway, Washington flag had a statute that prohibits displaying a flag with figures, symbols, or other extraneous material. And the whole test was, this college student, he hung his US flag upside down and he put a peace symbol on it, see, they were trying to restrict the liberals on this one, affixed with removable tape out of his window on private property during Cambodian invasion and Kent State incident. And he won. And he said, "This Washington flag statute infringed on his constitutional rights for symbolic speech." It was a no good. They couldn't pass a law. The government couldn't pass a law that would stop him from putting out his US flag upside down with a removable tape at a private window with a peace symbol to protest about the Cambodian invasion and Kent State incident. Because again, going back a few slides, you'll see it says, "Congress shall make no law abridging the freedom of speech." Moving forward, though, moving forward, though, is all speech a hundred percent protected? Remember, I said the freedom of speech and you gotta look to case law. The words itself don't matter. Yeah, political speech like we just heard, that receives the highest form of protection under the First Amendment. So the fact that political speech, that helps, it helps, it makes it more protected. But even hate speech is protected by the First Amendment. When is speech not protected? When it constitutes fighting words. So the limit of what we do to have a civil society, that's what the whole point of this experiment we're doing is, is that we should live in a civil society as if you're not engaging in fighting words, that's not what's going on. You're protected. But if you engage in fighting words, you're not protected. What is fighting words? Well, the definition has changed. Let's start off with it in 1942. A case before the US Supreme Court called Chaplinsky v. the State of New Hampshire. And the question was words that, I mean, the definition is words that are used in a public place of words likely to cause a breach of the peace. Fighting words. They cause a breach of the peace, in English. Here's the test. Would the words use provoke the average person to retaliation? If it would create retaliation, the civil discourse, people fighting, that's fisticuffs. Doesn't have to be physically. Average person to retaliate. Those words are bad. That's not good for, that's not what the intent of the First Amendment was. Well, guess what? Before us, we had what's called, these words, here's the words, you are a God damned racketeer and a damned fascist. And the whole government of Rochester are fascists or agents of fascists. There was a conviction, and it was affirmed for violating a New Hampshire law prohibiting addressing of any offensive, derisive, or annoying words to any other person who is lawfully in any street or other public place, or calling him offensive or derisive names. Fighting words aren't protected speech because, again, it's breaking the piece. That was the old test. In 1971, they made it a little more strenuous because just saying words in the vacuum, even if they're terrible words, you know, it doesn't matter if it's just an ordinary person that would likely be caused, here's the new test. It's not just on the old test, would the words provoke the average person to retaliate? The question is, was that speech directed to the person of the hearer? If it's not directed, Adam, what's their problem? And is it likely to cause a violent reaction? So the new test from Cohen v. California in 1971, they brought it much closer. Would they say, really, the only time we're gonna restrict speech, the protections on speech is if this incident is so likely that it's gonna cause a retaliation because it's directed at someone and it's likely to have this violence, violence, violence, violence, then we can allow the government to restrict his, again, civil society. But to remind you, hate speech is still allowed, and that receives protect. Here's what they say in that Cohen v. California case from the '70s, here's what they say about hate speech. And you should remember this. This is an important thing about getting along with our neighbor. It's one of the ones I'd grapple with a lot. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Let me repeat that last part. It is nevertheless often true that one man's vulgarity is another's lyric. The meaning there is that, you know, everyone's got their own thing going on. Just because you have your values, everyone likes to impose their values on everyone else. You may think it's hate speech, but I think to rap music in a lot of ways, it's not hate speech, it's a lyric, it's a beat. You're dropping a beat. Like everyone could judge each other when we don't understand the differences in cultural issues that we all face, but at the end of the day, the real question, the time where we should be stopping speech is only where it's going to cause violence. That's what we learned from the Supreme Court moving in. So speech isn't just words, speech includes symbols. If ever it was gonna be the intent and it was reasonably understood, a speech, and as long as it's not fighting words, speech is protected. So let's now get into the school with the second time. Let's start differentiating between permissible and impermissible restrictions on speech in our schools. The test really starts off with, is this restriction based on what's being said? Isn't that we're just saying quiet time everyone? Or are we saying don't talk about that? Like, you can't talk about sexual orientation or gender. Is it tied to the message when we say about sexual orientation or gender and this is where lawyers grapple all the time. Does that make it content based or is it saying on sexual orientation, don't talk about homosexuality, but you can talk about heterosexuality. I don't know how deep you dive into whether it's a viewpoint discrimination, is it the fact that we're doing it in reaction to the fact that people are now talking about same-sex couples and homosexuality and transgender status in the schools? Does that make it content based even though it seems like the face of the restriction is content neutral? These are questions that we have to figure out, but really, there's two types of restrictions. Content-based, where the message is restricted. Is it the topic or is the message on the topic or is it the message on the subtopic? How far do we dive down that rabbit hole before we define whether it's content-based? I will tell you with this US Supreme Court, I would go to the history and tradition on everything I do because that's what I've learned from them on how they do it. Better Speak to a historian before you go to the US Supreme Court these days. Anyway, or is it content neutral? The restriction isn't tied to the message. Everyone, let's just have silence. I'm gonna give you a tip from the beginning before we get into content based. But content neutral, they have a lot more power over. They can really stop... But let's start with content based. Content based restrictions rule. It's from Perry Education Association v. Perry Local Educators' Association, US Supreme Court in 1983. Only upheld if satisfies strict scrutiny in public, in limited public forum. I'm gonna tell you what that means in a second. There's three types of forums. There's a public forum, a limited public forum, and a non-public forum. We're gonna jump into that. If it is a public or limited public forum, though, we all have heard of rational basis scrutiny, strict scrutiny. I remember all this stuff from constitutional law. Big words had to write 'em on the final, but what do they really mean? To survive strict scrutiny, it's really hard. That's what I remember. It's really difficult. It needs to necessary to serve a compelling state. The first, is it compelling? Second one, is it necessary to serve that? Third one, is it the most narrowly drawn to achieve that end? I see three aspects of a strict scrutiny inquiry. Again, is there a compelling state in that interest? Is this necessary to do that? Is there that causal like? And more importantly, is this the most narrowly tailored way to achieve that? And if you have a content-based restriction in either a public or a limited public forum, you gotta go to strict scrutiny. This is a problem. Anyway, let's talk about these forums. A public forum. And we're gonna go into in greater detail. A public forum is open to the public overall. A limited public forum is open to the public only for limited times. And a non-public forum is not open to the general public. It's for a specific thing. Think about a non-public forum, for example, as a government office. Think about a limited public forum as a library's meaningful room where you can reserve the room. Think about a public forum as the actual library or the street or. Anyway, there's three types of access to government property. In a public forum, a content-based restriction's gonna be unconstitutional unless it survives strict scrutiny. In a limited public forum, content-based restriction's gonna be unconstitutional unless it survives strict scrutiny. I don't think they're gonna survive it. This is a hard test, guys. In a non-public forum, a content-based exclusion on certain subjects will be upheld if it's viewpoint neutral. And we said viewpoint neutral, remember, we started this course with the term viewpoint discrimination, a fascinating field of discrimination law that if you do discrimination law, you should be researching on. But again, is it viewpoint neutral? I just want to go back to my prior question. To restrict a topic that was previously talked with discriminatory animist, because we know the reason you're doing it is the silent transgender people and same-sex people and homosexual and bisexual people and queer people and plus and blah, blah, blah, blah. Or does it have to expressly be, you can talk about heterosexual stuff, just not, by saying sexual orientation as opposed to LGBTQ+, did DeSantis and Florida protect their law? I don't know. That's gonna be one for the courts. I don't know, because is that viewpoint neutral? Doesn't seem that way. But on its face, maybe. That's why these Supreme Court justices or even circuit justices or even district justices, I would say, are smarter than I. Even the worst of 'em are very impressive. Like it's hard things to test. These are hard questions. Is a public school a public forum? Let's start off with that. I told you before, public forums are generally streets and parks. That's what we're talking about. I used the library as an example 'cause anyone could go into the library, but schools, I don't know if you've been to your kid's school. Just picking up my kid at school, the fourth grader now, I feel like I gotta get a cavity search to get in there. Like, they didn't even let me inside. Like, at the gate, I first gotta buzz in, I gotta show them my ID, they check, and I'm happy about that. I like school safety. Don't misunderstand that. I like these doors being locked. We've seen what happens with gun violence when doors are not locked. Like it's good to have doors locked. Don't misunderstand. I'm just telling you, I can feel like it's not really a public forum. It's not for me. That's what they've let me know. So school is a public forum only if school authorities have opened facilities by policy or practice. And here's the key word, for indiscriminate use by the general public. There's use, I can go to his shows, I can go to meet the teacher night, but that's not indiscriminate use. Let's get into it. While we don't think that a public school is a public forum, at least any public school I've seen, maybe you've seen a different one, you might live in a different area. But with the ideas of gun safety these days, it's not public, it's for the kids only. But maybe it could be a limited public forum. Remember, I told you there's public forum, limited public forum, and non-public forum. So the question now is, is it a limited public forum or is it a non-public forum? And when I answer this question, I want you to know why does it have to be when we went down the rabbits hole before the school as a whole, like, I used the illustration before of sexual orientation as a whole as opposed to is that a viewpoint, just discussing sexuality in the first place, is that a viewpoint or is the viewpoint LGBT versus heterosexual, is that the viewpoint? In a school, are we talking about the whole entirety of the school or are we instead talking about the classrooms, the lunchroom, the football stadium? Maybe the football stadium is different. I just want... Here's what we've learned. If the school grants access to certain groups like Cubs Scout, YMCA and parochial schools, this is what we learned in Perry Education Association. If they did that, it's a limited public forum, but it's only a limited public forum to extend only to other entities of similar character, meaning it's not about all entities, not every organization under the sun. So it could be a limited public forum but not limited to all. I don't know. Then this becomes questionable too. Is that a standing issue? How does that all work in there? Let's get to what I really want to know, though. And we have, fortunately, a case, it's a district court case, but it's a telling case. It's from 2008, Johnson v. Poway Unified School District. This is a very good case to understand what's going on here. And let me tell you what's going on. There's this policy that permits teachers display on their classroom walls messages and other items that reflect the teacher's personality, opinions, and values as well as political and social concerns. Lemme put it into practice with you. Do you work at a desk? Do you have a desk job? If you have a desk job, you're a lawyer, you're probably at desk. Do you have pictures of kids on your desk? Well, let's assume you work for the government. Let's assume that you work for the government. Aren't the pictures of your kids on your desk, isn't they then saying, here's the test. If the school district intentionally opened its property to expressive conduct by its faculty, they can hang banners, and a restriction would be subject to strict scrutiny. So the question according to Johnson is what rights did you give the teachers historically to make this not just, not just, it's clearly not a public forum, but a limited public forum for the teachers to not just be doing their jobs in a sterile environment, but to express and if they could express, why can't they express certain things? I want you to remember this case because I think this is gonna become applicable, ladies and gentlemen, boys and girls, intersect of all ages, I believe that this is gonna become applicable as these cases make their way through the courts. This is a very telling case. This Johnson v. Poway Unified School District, and I give you the Westlaw. You can check it out. It's from 2008. Anyway, let's assume that it's a non-public forum. Like the hallways maybe. Some of the schools allow different teachers to hang flags or pictures of trips or pictures of the their clubs in the hall, on the door. But let's assume this hallway is sterilized. It only is a mural from the school. That's a non-public forum. What are their rights in a non-public forum? We learned from Minnesota Voters Alliance v. Mansky, this is a 2018 case is what we learned. They may impose some content-based restrictions on speech in non-public forums, including restrictions that exclude political advocates and forms of political activity. So if this is a non-public forum we're talking about in the school, the school could restrict it. So really to answer the question is, can these schools, this is what I want to know, even if it's a state law, not the specific school, but can these schools through state law or local law or district or maybe the board, can they restrict what's discussed in the classroom if the teacher had prior discretion of what was discussed? Did they open it up as a non-public forum and do they continue to open it up as a non-public forum? And what's changed besides this very restriction because is it subject to strict scrutiny? Assuming that it's a non-public forum, assuming, the question is, is it viewpoint neutral? We need a viewpoint neutral test. Was the restriction intended to discourage one viewpoint and advance another? Was that the, so assuming for argument's sake that they had no history of giving teachers discretion what was . Assuming for argument's sake that they did not give, in ironically in New York, where I am based. You hear all these people, I don't know where you guys hear, but common core, the worst, this is the worst because teachers need freedom to teach the way they wanna teach and they need to have discretion and teach the kid as they are teachers know how to teach with. I agree with it, but isn't that discretion counteracting the fact that this is not a limited public forum in the first place? Just questioning that. But let's assume that it was by the book regimented. We only do wrote learning, memorize, memorize, test, test, memorize, memorize, test, test. Then the question becomes, again, in this non-public forum, it still could violate the First Amendment if it was intended to discourage one viewpoint in advance another and key word is intended not on the face but on the intent. We want to know in this, the test, if a non-public forum is viewpoint neutral, we want to know whether the ban is reasonable in light of the purpose served by the forum. Here's the content neutral restriction rule. Assuming that it was neutral, looping it all out because we did content based that whole time. Let's assume that it just said in content moving forward, you could no longer display the color purple. That sounds as content neutral as you can unless you're a purple man. Purple people . That could be a problem. A government's allowed to have reasonable time place in manner restriction if and only if they're narrowly tailored to serve a significant government interest and leaves open ample alternative channels for communication. See how that's a much more favorable government test? So really we have to start off the analysis by determining if it's content neutral or based on content. If this is a content restriction, content-based restriction, the government's gonna have a lot of problems. There's hurdle after hurdle, even if it's not a public forum, if it's a limited public forum and we, what, even if it's a neutral, the question becomes, there's restriction. I said to you before though that I wanna talk about Tinker and I want to talk about Tinker and I want to talk about identifying heightened rights of the government as an employer as opposed to an educator in restricting speech. Because after all, the kids don't really have a choice. I guess their parents could pull them and teach 'em at home, homeschooling. I guess, they can send 'em at private school. They don't send 'em at all. There's truancy issues, that's problem. But teachers really could go work anyway. I'm not trying to say that's easy, and don't misunderstand if you or your spouse are a teacher, I understand what it means. I represent teachers. I understand what it means to have tenure, to be vested. You're not moving. I love when I'm doing a depo and they go, "Well, if you don't like it, why don't you go to a different school?" Good luck with that one. Like it's ridiculous. But anyway, in theory, an employee, a teacher has more latitude than a student. So let's get into what the rules are. We start off with the most famous of the cases when it comes to speech in school. This is a 1969 case called Tinker, the Des Moines Independent Community School District. Tinker, this is Tinker. You should know Tinker if you do discrimination in education. Just one of those things you should know. First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. Notice it uses the conjunct of not the disjunctive. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression of the schoolhouse gate. Seems pretty straightforward to me. Here's what happened in the Tinker case. Students wore black armbands on sleeves to protest Vietnam. The court found that armbands are symbolic speech. Remember, we started off the class that way onto the First and 14th Amendments and the court found, the Supreme Court, public schools are an appropriate place to exercise symbolic speech as long as normal school functions are not unreasonably disrupted. Under Tinker, the only test is, is what they doing unreasonably disrupting normal school activities If they're not, freedom of speech happen. We fast forward. We were a Tinker in the '60s. We were in the '60s with Tinker at '69, the summer of '69. Then we go to 1986 with Bethel School District No. 403 v. Fraser. Fraser is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public escort. Indeed, the fundamental values necessary to the maintenance of a democratic political system disfavor the use of terms of debate, highly offensive or highly threatening to others. Nothing in the constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanction. The inclusion of those values is truly the work of the schools. The determination of what manner of speech in the classroom or in school assembly is a inappropriate properly rests with the school board. It seems to me what they're saying here is that, "Hey, it's not just fighting words, certain hate speech we can get rid of in the schools, certain hate disruptive conduct." What is this disruptive conduct that they were referring to in Tinker? It seems that certain hate would be disruptive. What we got from that case, what we got from Bethel, what we got was discipline allowed of high school students for a sexually explicit speech at school assembly. School's disruptive conduct rule, which prohibited conduct that substantially interfered with the education process including the use of, and here's the key word, obscene, because remember, obscenity is not protected, whereas pornography is, profane language or gestures was constitutionally permissible. What we learned here is what the breadth of the disruptive conduct rule is, what they're talking about in Tinker, we learned that hey, the school board can restrict speech but only speech that's gonna be disruptive. Only disruptive speeches, not just fighting words. It may not even be hate if it's like an obscenity, obscene gestures and comments. We move to teachers now, though. Garcetti is one of those cases from 2006 that seems to confuse the whole topic. I don't think it's so confusing, but people start saying, "Well, the school can tell the teachers what to do." You'll see in a second that Garcetti actually specifically carves out school. So it's ironic that people jump to Garcetti even the school jumps to Garcetti. But let me read it to you. When public employees make statements pursuant to their official duties. What is a public employee? Someone who works for the government, they are not speaking as citizens for First Amendment purposes. Is it someone who works for the government or is it someone who works for the government who's making the statement? Here's the key words, pursuant to their official duties. So just because you work for the government doesn't mean you're giving up your constitutional rights, but you are when you're acting in the scope of your employment. Official duties is the scope of the employment and the Constitution does not insulate their communications from employer discipline. In English, what does Garcetti tell us? Garcetti tells us that in order to run a government as a business, I know it's not a business per se, but it has hospitals. The government has hospitals, the government has schools, the government has police, the government has prosecutors, the government has all these things. And the government, in order to run the government, has a ability if people are doing things in their official duties with pursuant within the scope, the government needs as an employer to be able to discipline their employees that don't follow the rules. That makes sense? That's what Garcetti says. Let me tell you what happened in Garcetti. Garcetti had a supervisory deputy district attorney, that's a prosecutor if you don't know. You're attorney, so you better know. Recommended dismissal based on finding affidavit police used to obtain search warrant was inaccurate. He drafted a memo, he said, "This case should be dismissed. The people's affidavit's not accurate." He drafted this memo, which, by the way, who did it help? It helped the defense. This isn't helping the prosecutor's office. He wrote a memo that was flatly contradictory to his office's charged. Prosecute. Now, I will go into attorney's ethics and there are rules and prosecutors have heightened duties. We don't need to go there today. And it's questionable whether he was doing the right thing in the first place. But the real key of it, he was retaliated against for writing the memo. But the key is he didn't get First Amendment protection in the memo. But why not? Because he did as part of his duties. I always say to my clients, "I'd rather be at Six Flags Great Adventure than dealing with your case. I like your case, I like being a lawyer, but if I'm not at Six Flags Great Adventure and I'm working on your case, then I'm working for you. It's part of my official duties." So if he was to go to Six Flags Great Adventure, this district attorney and he would've said, "At Six Flags Great Adventure, that cotton candy, no good." And the prosecutor's office, the government fired him because he made a statement about cotton candy. He would've been protected because he could say whatever he wants about cotton candy at Six Flags Great Adventure. But because he was talking about a case within his office, because he drafted a memo about that case, he was within his specific duties. And Garcetti really tells us, they want us to understand about these duties and they give us questions, factors, thoughts to understand whether a teacher in the school, are they acting within their official duties or aren't they not acting within their official duties? And you would argue from looking at the Don't Say Gay bill, that's a discussion within the course of conversation, but it didn't restrict it. That's kind of part of the problem. It didn't say curriculum will be stripped of conversations of sexual orientation. It said discussions of. Curriculum is a very big different term than discussions of. Discussion's is broad. Curriculum's narrow. I'm concerned about that. So here's what Garcetti tell us. We have to determine are they doing this as a public citizen, a private citizen, I mean, a private citizen that has constitutional First Amendment protection, freedom of speech, or are they doing it as a government employee? We wanna look at the location of where views expressed, but that's not dispositive. It's relevant. I told you Six Flags Great Adventure as opposed to being in the district attorney's office. Relevant, and it gives us a picture in our head, but it's not dispositive. Whether the speech concern the subject matter of the employment. Told you, I was talking about cotton candy, not a conviction. Relevant but not dispositive. What Garcetti tells us the test is, the test over which if the state, the county, the board are gonna have control over these teachers whether their restrictions on speech are valid. The controlling factor according to Garcetti is whether the expressions were made pursuant to his official duties. Were they part of the official duties? That's what Garcetti says. We need to look at whether it was part of official duties. And again, if the employee's speech was as a citizen, it was not done as part of what he was employed to do. Restrictions can't incidentally or intentionally limit the liberties employees enjoy in their capacity as private citizens, as a private citizen. And I have a picture of my family on my desk, could a teacher in Florida have a picture of a family on their desk? And if they were stopped from having the picture and they got fired from having the picture, would they have a 1983 claim or otherwise disciplined for doing that? Where's the reach? Where's the conversations? What can they do? Is this law Constitutional? If employee's speech was as part of official duties, restrictions it imposes must be directed at speech that has some potential to affect its operation. Oh, that's interesting too from Garcetti. Is the speech affecting its operation? Again, curriculum would affect the operations of school with respect to teaching. But what about just family? And if you spoke to a teacher, they would call the kids in their room, their kids, they would tell you that part of their job is to raise these kids. They are more proud of these kids than any. They make them into adults. They've young adults and then grow them and they can't wait for them to come back. Is that the operation of the school, though? I don't know. These are questions I need answered. And I guess we're gonna go to the Supreme Court someday and go to the history and tradition on this. But here's what Garcetti cautions. What did I tell you before? What did I tell you about Garcetti? It's amazing how everyone says Garcetti, Garcetti, Garcetti, Garcetti, Garcetti when you're in the schools. But Garcetti says, in its cautioning, "We need not, and for that reason, do not decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching." And while I'm not getting into it in this specific talk, I want you to know that university's ability to restrict professor speech seems to be much more limited than where we're dealing with the K through 12 world. Universities seem to, public universities like state universities, they seem, because again, when we deal with that is we think about academic freedom, academia, and we see in Florida, issues also in the academic front. So I don't know. For another day, just for you to consider. Our final topic today, ladies and gentlemen, boys and girls, intersects of all ages. It's they and that's. The tension between SCOTUS' decision in Tinker and Garcetti when it comes to teachers' free speech. Beathard v. Lyons. This is a case that's appealed with the Seventh Circuit. As of right now, we don't have a decision, but this is one I'm gonna be watching very carefully. This can give us a lot of insight about what's gonna happen. This is a very important case. Watch what the Seventh Circuit does. I told you about this coach before. It's a university, I get it. You know, I told you universities are hiding but I'm not, it wasn't really for academic speech, so I think that's still applicable to both settings, K through 12 and university. I don't mean to double talk. I think that curriculum speech is much more free in universities. But this speech right here, the university athletic department put a poster on the coach's door that said, "#BlackLivesMatter." This coach replaced the poster with All Lives Matter to our Lord and Savior Jesus Christ. Now, we've learned recently about whether establishment clause and free exercise clause, how they fall on these coaching things. So I'm gonna stick away from that for now. I just want to know, could he do this as a matter of speech, as a poster on the door, can he do that, can he put up a poster to have freedom of speech? And I thought it was interesting that the court says, the district court, mind you, "The coach was protected under Tinker, not Garcetti," because it was not his official duty as to have posters on doors. He wasn't paid by the university to decorate his door, to use it to promote a particular viewpoint. That wasn't part of his job. They didn't pay him to decorate doors. That was his door. Do what you want on it. Personalized, like being there. This is interesting. This is something you need to look at if you're litigating in this world, which I do. The school's anti-harassment and non-discrimination policy, this has to be part of discovery. We have to check this out. It gave right to enjoy the right to express his personal viewpoint within reason, of course. The Black Lives Matter, the BLM movement was not a sanctioned school movement. So the fact that the school put her on the door, even though the school did it, it wasn't a sanction movement. And the department of staff right to hang posters supporting the BLM movement gave him a right to support his own message. So you can have a department doing something that's not through the auspices of the school. And does that in and of itself trigger you to put out your own movement? No school policy prohibiting plaintiff decorating his door in whichever fashion he might choose. And if they had a policy, was it enforced? Because you know, a policy that's not enforced is as useless as a policy that doesn't exist. Plaintiff was not required as a term of his employment to either refrain from decorating his door or to decorate it in a certain way. You see how we get there on the authority Lyons, and I'm gonna tell you, I'm gonna tell you, I think he's onto something. And the reason I get there is because of our Supreme Court just in 2022 on Kennedy, the Kennedy case, this case was all over the news. This was the prayer in the center, the center of the football stadium, and it resolves and don't misunderstand, there's a case called Pickering, which seems to resolve Garcetti and Tinker's dispute, but we weren't sure because the courts are splitting. So in Kennedy, they go through the two-step Pickering-Garcetti inquiry, and this is how we have to resolve things moving forward. There's a threshold inquiry into the nature of the speech. Remember what I told you about Garcetti? Did they do it as a private citizen or employee speech? And remember, if it's a private citizen, they have First Amendment protection, we go to Tinker. If it's employee speech, if it's employee speech, there's a lot more restrictions. If it is employee speech is a delicate balancing of the competing interest surrounding the speech and its consequences. Kennedy reminds us, don't commit the error of positing an excessively broad job description by treating everything teachers and coaches say in the workplace as government speech subject to government control. And the question becomes, again, the word discussions in this Florida bill, isn't that problematic? Because it's saying discussions rather than curriculum or even a more narrow. Didn't they commit the error of positing that any communication or discussion, the word, it's a problem. On the same note, as I mentioned before, liberals make laws that hurt liberals and conservatives make laws that hurt conservatives. Here's some food for thought because you don't wanna open up a free for all. And we have to go back to Tinker and realize that there's certain speech that needs to be restricted even beyond fighting words. Because after all, if you open up the envelope, wouldn't it certain hate type speech enter the room? Here's some food for thought. What about Confederate flags on school grounds? Confederate flags, I have to tell you, that could be pretty offensive to some groups of people. Mind you, it could potentially impact certain discrimination laws on race, et cetera, color. I'm not going there, because we're not doing discrimination right now, but I give you the 11th Circuit, the Fifth Circuit, the Third Circuit. They've all spoken and said, "Hey, you can block in the schools Confederate flags." The school can do this. Why can the schools block Confederate flags? Is there a difference between a pride flag and a Confederate flag? A pride flag is, I will imagine under the Don't Say Gay, you can't put a pride progress flag or a pride flag up. You can't put up a sticker. What happens when the teacher wears the stuff? What happens when the students do it? What happens when the student asks about their two mommies or their two daddies or their two uncles or their two aunts? Or what happens when the kid says, I don't feel like the other kids, or I wanna wear, my three-year-old likes to wear all pink. He calls himself Ariella, I gotta tell you. I don't think that he has gender identity conversations in his head. I think he just likes to be Ariella because he is mom's best friend. But if he wants to be Ariella, that's great. I mean, where's all pink? Why can't the schools tell him he's good too? Why can't everyone deal with people who they are and accept who they are? You see the pride flag. What's the difference between the pride flag and the Confederate flag? While a Confederate flag constitutes vulgar or plainly expensive speech per Frazier. It's at least debatable. I know that people are gonna tell you that the Confederate flag is about the history and about pride of the south. But I gotta tell you, before there was a swastika in Nazi Germany, which is quite offensive to a Jew like me. It was a symbol of positive things, like, I gotta tell you. Just because a flag could have some positive attributes, if it's hurtful to groups, it becomes hurtful. I don't wanna see any Nazi flags in school. Just like I'm sure anyone of slave descent doesn't wanna see a Confederate flag. Slave descent, African-American, I might say. Back to the Jewish thing, slaves in Egypt, we get it. Anyway, anti-discrimination laws that protect the LGBTQ+ community, though, prevent a finding as a matter of law for anyone saying that teaching about sexual orientation or gender or sex on equal footing, terms, conditions, privileges, access to facilities, harassment, retaliation, we could get into all those laws, these laws as a matter of law, whether you're looking at Title IX or Title VI or Title VII on the federal level, don't they innerve of themself to find any communications about these topics, discussions, mind you, as non vulgar and non offensive but actually just the opposite, don't they have a right to exist? It's no longer politically debatable when preemptive federal laws in Title VII, Title IX make pride flags non offensive as a matter of law. I wonder how that's gonna be grappled with. If you're interested in this topic, you have cases in education, employment, or real estate with discrimination, you're interested in 1983, you need help, you want my help, we can pro hac into other states. We can help you out. My firm's here. Give us a call, 646 216 8009. Email me at [email protected]. Check out "The Lieb Cast." I hope you guys learned a lot. It was fun working with you.