This is essentially a chilling-effect argument.  Eugene, is your position
simply that Pickering analysis should look beyond the individual interests
of the speaker and consider such potential chilling effects on others who
hold similar views? Or are you arguing that there may be some reason to
think that religiously motivated anti-gay speakers are inherently more
likely to be chilled, and thus deserve more solicitude, than others who
speak on "prominent public controversies"? 
 
It should be noted that, P.C. school administrators aside (and cf. the 7th
Circuit Nuxoll case, which upheld the in-school right to wear gratuitous
anti-gay slogans on t-shirts) religiously motivated opponents of gay rights
on the whole exercise their speech and political rights quite robustly and
effectively.  Are you suggesting that, all other things being equal, we
should nonetheless give special solicitude to the chilling effects on their
speech?  Should we be equally concerned about chilling effects on the vocal
gay-rights Unitarians in a rural Indiana community, or anyone else who risks
employer retaliation for speaking out in a way that's unpopular or socially
disapproved in their particular local context?  
 
Steve


  _____  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 19, 2011 9:37 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post



                I agree that as a doctrinal matter Pickering is the rule,
for speech about same-sex marriage as well as for speech about other topics.
But Pickering's "usual public employee speech framework" requires an inquiry
into the magnitude of the "the interests of the teacher, as a citizen, in
commenting upon matters of public concern" - and, I take it, the interests
of society more broadly in allowing such speech (cf. United States v.
National Treasure Employees Union).  The question is how we should evaluate
this interest when it comes to speech on such prominent public
controversies.

 

                As to the link to religion:  One question in the debate
about gay rights is the degree to which gays and lesbians will be free to
build their families, and have access to government-provided benefits
connected to marriage.  (I actually support such claims.)  But another is
the degree to which those who belong to religious groups that oppose
same-sex marriage and oppose homosexuality will find that their expression
of their religious beliefs - whether cast in expressly religious terms or
not -- is not only seen by others as "rather crude garden-variety bigotry"
but is also used as a basis for being fired from government jobs, being
disciplined by their K-12 schools or colleges, being subjected to potential
civil liability for "hostile work environment" harassment.  

 

After all, I take it that a public schoolteacher who sees Buell disciplined
or fired for his speech would likewise be reasonably worried that he might
be fired even for more expressly religious expressions of his
anti-same-sex-marriage views, no?  Such religious expression may be no less
potentially disruptive than Buell's expression, and in some situations may
be more potentially disruptive, for instance if the teacher says this in a
medium that is intentionally opened to all potential listeners (e.g., a
rally, a letter to the editor, etc.).

 

To be sure, many of the people who oppose same-sex marriage do so for
nonreligious reasons.  (Opposition to same-sex marriage is more prevalent
among religious people, but even some nonreligious people take that view.)
But the law-of-government-and-religion link, it seems to me, is the risk
that particular religious groups will find their expression of their
religiously motivated views (again, whether expressly cast in terms of
religion or not) will lead to firings and more.

 

Eugene

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 11:25 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

 

I wasn't meaning to imply that the analysis was easy, just that familiar
doctrinal machinery exists in the form of the public employee speech
doctrine.  If the teacher where to sue alleging violation of his First
Amendment rights, are you implying that he would/could/should make some
argument other than under Pickering?  

 

Same-sex marriage is surely one of the most prominent public controversies,
but are you suggesting that somehow takes it out of the usual public
employee speech framework?  (You posted this on a religion list, but is
there any indication that the teacher was speaking in any religious context
or that some question of religious liberty is implicated?  Other than a
generic reference to "sin," the comments reported appear to be rather crude
garden-variety bigotry, not religious speech.)  

 

I am sympathetic to the teacher and his speech rights and, based only on the
reported facts, I think the school's action is open to serious question.
The difficulties Eugene describes seem to be inherent in the doctrine the
Court has provided, not unique to this particular problem. And I believe
there is "particular danger or impropriety in government practices that
essentially pressure government employees to shut ... at least if they are
speaking on one particular side" when we're talking about any topic of
public concern, not just this one.  

 

Steve

 

  _____  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 19, 2011 8:43 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

                I'm not sure that there is such a thing as "a
straightforward Pickering ... analysis."  "Balanc[ing]" "the interests of
the teacher, as a citizen, in commenting upon matters of public concern"
with "the interest of the State, as an employer, in promoting the efficiency
of the public services it performs through its employees" strikes me as
generally far from straightforward:  It requires "balancing" two
hard-to-quantify things that, on top of the difficulty of quantification,
are different enough to be largely incommensurable.

 

                But beyond this, it seems to me that the particular problem
here is:  How do we evaluate "the interests" of citizens "in commenting upon
matters of public concern" in a situation like this, where the issue -
same-sex marriage - is one of the most prominent social, religious, and
political topics of our time?  Is there particular danger or impropriety in
government practices that essentially pressure government employees to shut
up on this sort of topic, at least if they are speaking on one particular
side of the topic?

 

                Eugene

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 5:41 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post

 

Doesn't this call for a straightforward Pickering/Connick analysis? I'm
assuming Garcetti wouldn't apply, unless the teacher used Facebook to
communicate officially with students. I lean strongly in favor of protecting
the teacher's speech which, crude as it was, was clearly on a matter of
public concern. So isn't the key inquiry whether the employer can
demonstrate that this particular speech was harmful to the good order and
discipline of the school? Seems to me there would be lots of facts we'd need
to know. Was the post readable by anyone or just the teacher's Facebook
friends? What's the climate for gay students at the school? Could it be
argued that this post realistically (without the fuss caused by the
suspension itself) would have caused harm to gay students or disrupted the
school generally?

 

Steve Sanders

University of Michigan Law School

On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote:

Any thoughts on this?

 

http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/

 

Lake County Schools Communications Officer Chris Patton said school
officials received a complaint Tuesday about the content on Mount Dora High
School teacher Jerry Buell's personal Facebook page .... CNN affiliate
Central Florida News 13 reported that a status post on it said, "I'm
watching the news, eating dinner, when the story about the New York okaying
same sex unions came on and I almost threw up."

 

Patton would not confirm the content of the post, but he said Lake County
officials are taking the matter very seriously.

"We began to review the code of ethics violations immediately and yesterday
afternoon temporarily reassigned the teacher pending the outcome of the
investigation," Patton told CNN Thursday....

 

The newspaper said that in the same July 25 post, Buell said same-sex
marriages were part of a "cesspool" and were a "sin." ...

 

Buell, a teacher for more than 26 years [and a former "teacher of the
year"], served as the Social Studies Department chair at Mount Dora and
taught American history and government, according to the high school's
website....

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