Supreme Court Protects Personal Employee Speech in Praying Coach Decision
Amidst all the drama surrounding the case of the praying coach – Kennedy v. Bremerton School District – was an important free-speech question: when does a public employee engage in protected personal expression versus unprotected government speech?
The question is vital in free-speech cases, because the Supreme Court created a categorical bar for public employees in Garcetti v. Ceballos (2006), ruling that “[W]hen public employees make statements pursuant to their official job duties, the Constitution does not insulate them from discipline.” To be clear, if a public employee’s speech is deemed to be government speech, then the First Amendment claim is cut off at its knees.
In the litigation between coach Joseph Kennedy and his school district, both lower courts reasoned that Kennedy engaged in unprotected government speech rather than personal expression. The federal district court reasoned that Kennedy was hired as a coach and thus any speech affiliated with his role as a coach was offered in his capacity as a government employee. The 9th U.S. Circuit Court of Appeals reached a similar result, reasoning that Kennedy engaged in government speech, because “his expression on the field – a location that he only had access to because of his employment – during a time he was generally tasked with communicating with students, was speech as a government employee.”
But, Kennedy contended that his prayers at the 50-yard-line were personal, religious expression not a form of government speech. His lawyers argued that Kennedy’s silent prayers were more personal expression than government speech at the U.S. Supreme Court.
The Supreme Court agreed.
In his majority opinion, Justice Neil Gorsuch framed the essential free-speech question as follows: “Did Mr. Kennedy offer his prayers in his capacity as a private citizen, or did they amount to government speech attributable to the District?”
Gorsuch determined that Kennedy was engaged in private speech when he prayed at the 50-yard line. According to Gorsuch, Kennedy was not engaged in any coaching duties at the time. He explains:
He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as coach. Simply put: Mr. Kennedy’s prayers did not owe [their] existence to Mr. Kennedy’s responsibilities as a public employee.
Gorsuch said that both the timing and circumstances of Kennedy’s prayers confirm that his expression was more personal, than governmental. As for timing, he noted that the prayers occurred postgame when coaches typically engage in personal time and students are engaged in other actions, like singing the school fight song.
In dissent, Justice Sonia Sotomayor wrote that “the District has a strong argument that Kennedy’s speech, formally integrated into the center of a District event, was speech in his official capacity as an employee that is not entitled to First Amendment protection at all.” But, she ultimately says that whether the speech was personal or governmental doesn’t matter, because such prayers are barred by the Establishment Clause.
But, with all due respect to Sotomayor, the question of whether public employee speech is personal or governmental often is the key question in a wide range of First Amendment public employee speech cases.
Did a parole officer engage in personal or governmental expression when she warned superiors and others about a dangerous sex offender?
Did police officers engage in protected citizen speech when they wrote a no-confidence letter about their police chief?
Do police officers engage in protected expression when they speak about internal police affairs?
Did a college professor engage in protected speech or unprotected government expression when he spoke out against student cheating?
Did the firefighter engage in personal or governmental expression when he spoke to the city council about public safety issues?
Did the school janitor engage in personal or governmental expression when he identified asbestos as a safety hazard at school?
Many public employees unfortunately have had their free-speech rights silenced since the Court’s oft-criticized decisionin Garcetti . They have been “Garcettized.” It doesn’t matter if the public employee is the purest of whistleblowers or speaking on the most important of public issues. If the Court determines the employee was engaged in government expression, not personal expression, the employee has no First Amendment rights. That is terrible. The Court’s decision in Garcetti is a jurisprudential disaster.
Public employees have voices that should be heard and respected, not silenced and censored. As Justice Thurgood Marshall told us years ago in Pickering v. Board of Education (1968), public employees are often in the best place to inform the public about important societal issues.
The Supreme Court’s rejection of a broad application of Garcetti in Kennedy v. Bremerton School District should be welcomed by anyone who cares about freedom of speech.
David L. Hudson, Jr. teaches law at Belmont University College of Law and the Nashville School of Law. He is the author of The Constitution Explained and Freedom of Speech: Understanding the First Amendment.
David L. Hudson, Jr., an Assistant Professor of Law, teaches Legal Information and Communication at Belmont. He is the author, co-author, or co-editor of more than 40 books. For much of his career, he has worked on First Amendment issues. He serves as a Justice Robert H. Jackson Legal Fellow for the Foundation for Individual Rights in Education and a First Amendment Fellow for the Freedom Forum Institute. For 17 years, he was an attorney and scholar at the First Amendment Center in Nashville, Tennessee. Hudson has taught classes at Vanderbilt Law School and the Nashville School of Law. In June 2018, the Nashville School of Law awarded him its Distinguished Faculty Award. He earned his undergraduate degree from Duke University and his law degree from Vanderbilt Law School. Hudson also is a licensed boxing judge and has judged a dozen world title bouts.
