Library Staff Speech and the First Amendment
The following article appeared in California Libraries January 2002 (Vol. 12 No. 1). Permission to reprint for nonprofit use is granted. The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.
Dear LibraryLaw.com,
Boy am I confused. I read that a library director in Florida was suspended without pay for telling reference staff that they couldn't wear "Proud to be an American" stickers at the reference desk. This sounds like librarians have a clear right to free speech. Then I read that a library assistant in California was suspended without pay for sending a staff email that was critical of U.S. foreign policy. That sounds like library staff don't have a right to free speech. Do library staff have a right to free speech or not? What gives?
Speechless Librarian
Dear Speechless,
The debate over the limits of free speech for public employees has heated up since September 11. [i] Library staff who are public employees have free speech rights. These rights are not as strong as patron speech rights, because a government employer has its own "mouth," that is its own rights to speech. Although there are few court cases concerning librarian's speech rights, there are many legal precedents concerning the boundaries of public employee speech.
In the situations you describe, both set in public academic libraries, one employee was suspended for suppressing speech, and the other was suspended for expressing speech. Was either suspension appropriate? Were both? Assuming the facts are as stated, it is likely that in fact, both suspensions were problematic. How could this be? Let us navigate the First Amendment as it applies to library employees in public institutions.
The case of the "Proud to be an American" stickers at a Florida reference desk and the Government's mouth
Many people were outraged when the library director at Florida Gulf Coast University told her staff not to wear "Proud to be an American" stickers. The director said she was afraid that foreign students and faculty might be offended. The university was bombarded with outraged phone calls and letters including one contact by a United States Congressman. The president of the university suspended the director for one month without pay, based on university rules and the Florida Administrative Code regarding misconduct. [ii]
Some find it is easy to condemn her actions as a violation of free speech. Yet it is always easy to defend popular speech. The real test is would be if a reference librarian wore a sticker that said, "Osama was right!" Then the critical question becomes evident: Who decides whether the speech is permitted? The librarian? The director? The president? The governing board? The courts?
Courts ultimately decide disputes. Most disputes do not reach that level, but are resolved "in the shadow" of the Courts, or with a keen eye towards court precedents. A court following First Amendment jurisprudence (without state or local considerations) may have actually upheld a restriction on wearing the stickers at a reference desk if the policy had been issued or approved by the elected governing officials. In order for the speaker to have the opportunity to speak as the government, the speaker must gain favor with the populace and survive the electoral process. [iii]
The inquiry into public staff stickers is a complicated one. Although public employees have some First Amendment rights, these rights are weighed against the government's own rights to speech. The inquiry often centers on whether it appears that the government is speaking through its own mouth, its employees. [iv]
Essentially, government employment is a privilege and not a right. In 1892, Justice Oliver Wendell Holmes wrote that a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." [v] Nevertheless, today's courts have found some degree of protection for public employees when their speech touches on matters of "public concern." [vi]
First Amendment analysis first looks to see if the speech in question is "protected," that is whether it touches a matter of "public concern." It must relate to a matter of political, social, or other concern to the community. The court considers the content, form and context of a given statement, as revealed by the whole record. [vii] Then, even if the speech is of "public concern," a court will weigh its import against the strong interest of government efficiency in its operations. The government will often win these cases. Speech that survives this test against government efficiency often involves the reporting of corruption or wrongdoing to higher authorities. [viii]
In Florida, however, the policy was not issued or approved at that level. In issuing the library director's suspension, the provost wrote, "According to general Academic Freedom statements, all public employers must exercise appropriate restraint and show respect for the opinions of others. Only if the employee's actions are disruptive to the public service that we provide are we allowed to question their freedom of expression." [ix]
It should be emphasized that state, local, institutional or collective bargaining contract provisions may ensure greater liberties when it comes to protecting employee speech than those guaranteed by the Constitution. [x] The First Amendment provides minimum, not maximum guarantees for free speech. The Florida case may be such a situation; the provost's statement appears to balance only a disruption in public service, (as opposed to general government efficiency) against employee speech.
Update on Florida case: The director signed a waiver for her right to appeal the disciplinary action.
California Spin
If such a case were to arise in California, it is likely that a court would follow the California Appellate decision in California Teachers Association v San Diego Unified. [xi] The Teachers Association challenged a school district policy that prohibited political buttons at work sites during work hours. The Court said that schools retain authority to stop speech that might reasonably be perceived to associate the school with any position other than neutrality on matters of political controversy. [xii] The decision permitted the school to ban teachers' buttons inside the classroom. However, it allowed teachers to wear the buttons outside the classroom, where there were no elements of power or influence over the students. The Court found it permissible for teachers to express their views to each other, exposing little risk their views would be attributed to the school. [xiii] A recent California Attorney General opinion echoed this view, and extended the right to teachers who wished to wear political buttons at an annual "back to school" night with parents. [xiv]
In a library environment, this reasoning might translate to preserving the rights of individual staff members to express diverse opinions in staff areas, so long as this does not unduly interfere with government efficiency. Yet expression on library bulletin boards, displays etc. may be limited. Such areas do not include bulletin boards, displays etc. open to the general public, which would include off-duty librarians.
Even if a library believes it has a sound reason to limit employee speech, it is strongly advised to seek legal counsel before doing so.
The case of the staff reply email
According to news reports, a librarian at UCLA sent out a group email to coworkers citing a 1973 speech written by Gordon Sinclair, titled "America: The Good Neighbor." A library assistant sent out a group reply, saying the United States wasn't such a good neighbor since it supported apartheid-like policies in Israel. The library assistant was suspended without pay for a week for violating a library policy prohibiting unsolicited political or religious messages sent to department lists. [xv]
Here, an employee was communicating to other employees, not to the public, obviating the appearance that the government itself is sending the message. If such a case went to court (and the court found that the facts are as stated), a likely analysis would follow these lines:
Was the speech a matter of public concern? Here, discussion of the September 11th attacks, regardless of viewpoint, would likely be deemed of "public concern." [xvi]
Was the protected speech a "substantial or motivating factor" behind the adverse employment action? [xvii] Would the employer have made the same decision to terminate even if the employee had not engaged in protected speech? [xviii] Apparently, this was not in dispute.
Even if the speech is on a matter of public concern, could it disrupt the workplace? Courts balance the employee's rights to comment on matters of public concern and government interests. [xix] This requires "particularized balancing on the unique facts presented in each case." [xx] Employers' interests may include efficiency, ensuring loyalty and fostering positive morale in the workplace. [xxi] An employer need not establish that the employee's expression actually disrupts the workplace, but merely reasonable predictions of disruption. [xxii] Here, courts put a heavy thumb on the scale on the employer's side. It is not unusual for a government employer to have email policies that promote government efficiency. Courts use a "reasonableness" test (also known as "rational review") to evaluate these cases. Under that test, policies can be upheld even if they restrict speech based on content. This differs considerably with situations when the government is the regulator of a public forum. [xxiii]
Is the policy viewpoint neutral? Is it evenly applied to everyone?
Even though the government employer may generally make policies that restrict based on content, the courts are harsh on employers if the restrictions are based on viewpoint. Is a policy that says no political or religious emails purely content based? The issue can become murkier as certain emails may be seen as political by some readers and not by others. Is the Good Neighbor email political? The reply? Is it political to send a message that says "Proud to be an American"? Even emails with religious content raise such questions. Would an announcement or a summary of a program at the library on "The History of Islam" be considered religious? [xxiv] What does it mean to be solicited? Oddly enough, a more sweeping restriction, such as "no personal emails," is on firmer Constitutional ground.
In any First Amendment challenge, a law or policy will be evaluated "on its face" or "as applied." That is, the policy itself will be evaluated to see if it violates Constitutional guarantees. It will also be evaluated to see if it has been applied unevenly, targeting some speakers unfairly and not others. In this case, any employees who sent political messages should be treated in a similar fashion. [xxv] If, for example, the librarian who sent the original "America: The Good Neighbor" email (or other staff sending political emails) was not disciplined commensurately, then the library assistant who sent the reply email would have a strong case for reinstatement, even if the policy survived judicial scrutiny.
Update on California case: The library assistant filed a union grievance with the university administration. He received his back pay, a recission of the suspension and an apology. He is continuing to seek a redress on related claims and he seeks a public apology. [xxvi]
Additional Questions
Does discussion of U.S. policies rise to the level of workplace disruption?
Clearly, such discussions are taking place at a grand scale across the country. Circumstances and facts are needed before a court can come to such a conclusion. In what is probably the first post-September 11 court case on the issue, a West Virginia judge issued a preliminary ruling in favor of a West Virginia school board when it restricted a student's speech opposing the U.S. bombing of Afghanistan. The court did not find irreparable harm necessary to issue the preliminary injunction that Katie Sierra, a 15-year-old sophomore sought. She was suspended from school for three days for passing out leaflets for an anarchy club. Additionally, she was prohibited from wearing a T-shirt with the message: "When I saw the dead and dying Afghani children on TV, I felt a newly recovered sense of national security. God Bless America." [xxvii] [xxviii]
Although the judge's ruling has not been published online, his assessment of school disruption may not have been unfounded. Sierra's mother recently pulled her daughter from school after a series of threats and physical assaults. [xxix]
It should be noted that although courts will weigh the likelihood of disruption against the value of the speech, it is possible for the speech to win. The student says she plans to see the lawsuit through.
How does a library employee know precisely what restrictions are in place?
This is an important question. Although an employee is presumed to know the laws and policies that guide him or her in the workplace, if a law or policy doesn't clearly enunciate what is forbidden, it might be challenged as "void for vagueness." When a restriction is so vague that the employee does not know exactly what conduct is restricted, it becomes impossible to comply. On the other hand, if adequate warning of what activities are proscribed, with explicit standards, restrictions may be upheld.
If the library worker is a contractor, rather than an employee, does this affect his or her rights?
It can. The contractor's First Amendment rights are actually stronger than a regular employee's is. The United States Supreme Court recently held that the First Amendment protects public contractors who speak on a matter of public concern. The government may not stop a contract in retaliation for doing so. The government's interest in running an efficient workplace is not as strong with contractors as it is with its own employees. [xxx]
Where can I find more information?
The American Library Association recently published a Q & A on Librarian Speech in the Workplace. [xxxi]
The American Bar Association Section on State and Local Government Law has a useful work, Freedom of Speech in the Public Workplace, and currently has posted three chapters to Findlaw.com. [xxxii]
Previous | Next: The USA PATRIOT Act and Patron Privacy on Library Internet Terminals...
[i] A broad look at post-September 11th speech on college campuses is available on NPR. National Public Radio. Morning Edition. Campus Free Speech segment at http://www.npr.org/ramfiles/me/20011203.me.04.ram (visited December 10, 2001).
[ii] See Marci Elliott, "Attack: FGCU library staff can't wear 'proud to be an American' stickers," Naples Daily News, September 19, 2001; Marci Elliott, "FGCU library director reprimanded for stance on patriotic stickers," Naples Daily News, September 20, 2001; and Marci Elliott, "FBCU library director suspended over badge flap," Naples Daily News, September 26, 2001; all available at http://www.naplesnews.com (visited October 3, 2001).
[iii]Downs v. Los Angeles School District 228 F.3d 1003 (2000), citing Board of Regents of the Univ. of Wis. Sys. v. Southworth, 120 S. Ct. 1346, 1357 (2000) ("When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.").
[iv] Although "it is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys," Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995)(emphasis added), "when the State is the speaker, it may make content-based choices." Id. at 833; see also Rust v. Sullivan, 500 U.S. 173 (1991). Both cited in the 9th Circuit case, Downs v. Los Angeles School District discussed in note 13, in which a teacher created a bulletin board questioning the morality of homosexuality. The Court did not uphold the employee's individual right to speech: "We do not face an example of the government opening up a forum for either unlimited or limited public discussion. Instead, we face an example of the government opening up its own mouth." Downs v. Los Angeles School District 228 F.3d 1003 (2000).
[v] McAuliffe v. Mayor of City of New Bedford, 29 N.E. 517, 517-518 (1892). For a good historical summary of the evolution of public employees' speech rights, see Andre G. Travieso, "Employee Free Speech Rights in the Workplace: Balancing the First Amendment Against Racist Speech by Police Officers," 51 Rutgers Law Review 1377, Summer 1999.
[vi] The landmark Supreme Court case on this issue, Pickering v. Board of Education, 391 U.S. 563 (1968), ruled in favor of a teacher who was fired for writing a letter to a newspaper that was critical of the local school board. The letter was found to be of "public concern," important to public discourse at large. The court found this speech to be under the umbrella of the First Amendment, and thus the letter could not be the basis for discharge -- unless it was to cause a substantial interference with the ability of the teacher to continue to do his job.
[vii] Connick v Myers, 461 U.S. 138, 146-148 (1983).
[viii] Wallace v. Texas Tech University, 80 F. 3d 1042, 1051 (5th Cir. 1996).
[ix] Marci Elliott, "FBCU library director suspended over badge flap," Naples Daily News, September 26, 2001; available at http://www.naplesnews.com (visited October 3, 2001).
[x] See for example mention of collective bargaining agreements in Geffner & Bush, Labor Law Update, Winter 1996-97 available at http://www.editorsguild.com/lablaw.html (visited December 2, 2001).
[xi] California Teachers Association v San Diego Unified 45 Cal. App. 4th 1383 (1996). This case is based in part on the Calif. Educ. Code Sections 7050-7057, which do not apply to nonschool librarians. However, it is instructive in its reasoning.
[xii] California Teachers Association v San Diego Unified 45 Cal. App. 4th 1383 (1996), citing Hazelwood School District v. Kuhlmeier (1988) 484 U.S. 260, 270, 271.
[xiii] A court would likely also consider a recent federal appellate opinion, Downs v. Los Angeles School District 228 F.3d 1003 (2000) in which a teacher created a bulletin board on a school hallway wall, questioning the morality of homosexuality when school board policy is promote diversity. Although the bulletin board was outside the classroom, the Court wrote that the school district speaks through bulletin boards as vehicles for conveying a message from the school district.
[xiv] A school district asked if it could prohibit teachers from wearing political buttons on Back-to-School night. The opinion noted that this annual meeting of teachers and parents was not an instructional setting for pupils, there was no fear of "young and impressionable minds" and parents would not be likely to think the buttons reflect the views of the district. California Attorney General Opinion No. 01-307 (July 12, 2001) at http://caag.state.ca.us/opinions/published/01-307.pdf (visited December 10, 2001).
[xv] Sarah Mourra, "UCLA Librarian Appeals Suspension for Mass E-mail: Letter Sent to Co-Workers Criticized U.S. Foreign Policy," Daily Californian, October 15, 2001 available at http://www.dailycal.org/article.asp?id=6643 (visited December 1, 2001). Also listen to interview with Jonnie Hargis on Democracy Now, October 11, 2001 available at http://www.webactive.com/pacifica/exile/dn20011011.html and interview on KUCI Subversity October 5, 2001 at http://www.libraryplanet.com/archives/00000827.html (visited December 1, 2001). For more Hargis links and a copy of the UCLA memo regarding email policy, see Library Juice 4:37 (October 17, 2001) at http://www.libr.org/Juice/issues/vol4/LJ_4.37.html (visited December 3, 2001).
[xvi] The Supreme Court heard a case concerning a remark made after President Reagan was shot. A public employee in a Texas sheriff's office said, "If they go for him again, I hope they get him." The Court held that it was unconstitutional to fire her because she was speaking on a matter of public concern. Rankin v. McPherson, 483 U.S. 378, 380 (1987)
[xvii] Board of County Comm'rs v. Umbehr, 518 U.S. 668 (1996).
[xviii] Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
[xix] Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
[xx] Voigt v. Savell, 70 F. 3d 1552, 1560-1561 (9th Cir. 1995).
[xxi] Kaluczky v. White Plains, 57 F. 3d 202, 210 (2d Cir. 1996).In applying the balancing test from Pickering, the following questions are asked:
whether the speech at issue impairs discipline by superiors or harmony among co-workers;
whether the speech has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary;
whether the speech impedes performance of the speaker's duties; or
whether the speech interferes with the regular operation of the public employee's enterprise.
[xxii] Waters v. Churchill, 511 U.S. 661, 663 (1994).
[xxiii] For more on library restrictions on speech in a public forum, see Mary Minow, "Filtering the First Amendment for Public Libraries: Background Information," April 20, 1997 at http://www.best.com/~tstms/filte.html (visited December 10, 2001).
[xxiv] See note 4. Note also that in Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, (1995), a university policy denying funds to a conservative Christian publication was unconstitutional "viewpoint discrimination", as the university did fund other religious groups such as the Jewish Law Students Association and the Muslim Student Association. Restricting "religious" emails could be similarly problematic if not evenly applied.
[xxv] For a useful analysis of library policy analysis, albeit in the public policy context, See Ellen Richardson, "Trustee Corner: Four Tests for a Legally-Enforceable Library Policy," 1994 http://www.libofmich.lib.mi.us/publications/trusteesept94.html (visited December 3, 2001).
[xxvi] Email contact with Jonnie Hargis, December 6, 2001.
[xxvii] Sierra's T-shirts had messages such as: "When I saw the dead and dying Afghani children on TV, I felt a newly recovered sense of national security. God Bless America." "Judge rules against anti-war student," November 1, 2001
[xxviii] Eric Eyre, "Student can't wear anti-war clothing to Sissonville High: Defense plans appeal to state Supreme Court,"
Charleston Gazette, November 2, 2001, http://www.wvgazette.com/news/News/2001110193/ (visited December 3, 2001). See also Eric Eyre,
"Student, principal spar over anarchy club, clothing," Charleston Gazette, November 1, 2001 at http://www.wvgazette.com/news/Other+News/2001110128/ (visited December 3, 2001).
[xxix] Eric Eyre, "Katie Sierra leaves Sissonville High: Mom's decision based on assaults," A - I n f o s, a multi-lingual news service by, for, and about anarchists, November 27, 2001 at http://www.ainfos.ca/en/ainfos07995.html (visited December 3, 2001).
[xxx]Board of County Comm'rs v. Umbehr, 518 U.S. 668 (1996) See also Hansen Clarke, "Contract Law II: The First Amendment Rights of Government Contractors," 76 MICHIGAN BAR JOURNAL 1205 (November 1997)
[xxxi] American Library Association. Questions & Answers on Librarian Speech in the Workplace: An explanatory statement of the
ALA Code of Ethics Adopted July 2001 available at http://www.ala.org/alaorg/oif/libspeechq&a.html (visited December 3, 2001). Note that it contains one misstatement, in Answer #4. Although the relationship between employer and employee is a contractual one, it is still governed by the First Amendment. A contract may provide more speech rights than the Constitution, but not less.
[xxxii] James W. Baird. American Bar Association. Section of State and Local Government Law, Freedom of Speech in the Public Workplace, 1998-1999 at http://www.findlaw.com
Bottom Line: Public employees speech rights are balanced with the government's own speech rights. It often comes down to whether the speech appears to come from the government's own mouth, and whether the speech impairs government efficiency.
Mary Minow is an attorney and consultant with librarylaw.com. She is currently writing a book on library law for the American Library Association with Tomas Lipinski. She is President of the California Association of Library Trustees and Commissioners.
Copyright© 2002 Mary Minow
minow@librarylaw.com
minow@stanfordalumni.org
www.librarylaw.com
Permission to reprint for nonprofit use is granted. The librarylaw.com column is not intended to replace legal advice. For a particular fact situation, consult an attorney.