On Free Speech

“Marriage is the foundation of the natural family and sustains family values. That sentence is inflammatory, perhaps even a hate crime.”

Those two sentences open a recent column by George Will, “Speech Police, Riding High in Oakland.” Will discusses an incident and court case from several months ago concerning a group of Oakland city employees, the Good News Employee Association (GNEA), a flier they distributed and posted on an office bulletin board containing Will’s first quoted sentence, and the dust-up that resulted when another employee’s complaint led to the removal of the flier from the bulletin board.

GNEA is a Christian-identified employee organized that is opposed to the possibility of gay marriage, the main topic addressed in their flier. (I do wonder what the full contents of the flier look like. I searched quite a bit on the web for the full text, but was unable to find it. Many websites supportive of GNEA do contain short quotes, mostly along the lines of that in Will’s column. I wonder whether the lack of ready availability of the full text indicates selective attention to the most relevant passages or whether it indicates omitted text that is less innocuous.)

Office management removed the flier from the bulletin board after the complaint of one fellow employee. As Will mentions, other employee groups had previously put up advertisements and fliers there and through office email, such as a gay employee group’s advertisement of a “Happy Coming Out Day” event. Quoting from Will:

“The flier was distributed after other employees' groups, including those advocating gay rights, had advertised their political views and activities on the city's e-mail system and bulletin board. When the GNEA asked for equal opportunity to communicate by that system and that board, it was denied. Furthermore, the flier they posted was taken down and destroyed by city officials, who declared it "homophobic" and disruptive.”

My initial reaction on reading Will’s column was that it did seem unfair to allow some groups to use the public bulletin board and to disallow that for others – provided GNEA’s flier was not overly disruptive and relatively innocuous. I still think the flier’s viewpoint should have been allowed expression in that forum, even though I strongly disagree with it, if other viewpoints were also allowed expression there. At the same time, I think that Will mischaracterizes the 9th Circuit court’s decision on the matter.

First, Will and others on the web raise the specter of GNEA’s speech being prosecuted as hate speech. Here’s a quote from a blog post by Ed Brayton on the issue:


“As usual, the media reports focus on the broadest possible issue and not on the actual legal issue under dispute in the case. California does not have a law against "hate speech", nor does any other state. The only place such rules exist in the US are on college campuses (and as I wrote recently, I am in favor of an all out legal assault to get such rules declared unconstitutional by the Supreme Court). But the issue in this case is much narrower than that and has little to do with outlawing the advocacy of anti-gay positions.

“The particular issue in the case is whether the Constitution requires that employees be allowed to post material in public view in their office that their employer (in this case, the city of Oakland) has deemed to be in violation of their anti-harrassment policies and disruptive to the collegiality of the workplace. The case does not attempt to declare such sentiments "hate speech", nor would it prevent the plaintiffs from expressing their position in a myriad of other ways; it deals solely with the narrow question of whether the employer can regulate the content of material posted on their public bulletin boards.”


Second, Will mischaracterizes the court’s decision, which is actually more nuanced than you’d think from his column. Here’s a selection from the court decision that’s quoted by Brayton:


“Having laid out plaintiffs' and defendants' competing interests, the court must strike the balance called for by Pickering. Neither side has presented a strong case. But, the facts being undisputed, the court must resolve the question of law posed by Pickering. The interests on both sides are slight: On the one hand, defendants' restriction of plaintiffs is far from a wholesale muzzling, but on the other hand, the suppressed speech was not patently inflammatory "fighting words." To be sure, it caused friction in the workplace, but there is a difference between episodes of friction -- which are the daily incidents of life in a pluralistic society -- and disruption -- which impairs the government's ability to discharge its duties to its citizens. The City must tread carefully when it exercises its authority to suppress its employees ' speech.

“Because the flyer plainly addresses a matter of public concern, it is defendants' burden to show that the City's interest outweighs plaintiffs' interest. This balance must be resolved in the City's favor for two reasons. First, plaintiffs' interest in this particular channel of communication is vanishingly small. It is undisputed that plaintiffs may promote GNEA outside of work and may do so even at work under proper conditions. Plaintiffs do not have a privileged First Amendment interest in communicating their message to their officemates, for their First Amendment rights derive from their status as citizens, not their status as employees. Their right to speak to their coworkers at CEDA is no greater than the right of a citizen at large to speak his message to CEDA employees -- which is to say, plaintiffs have little rights at all in the particular channel they chose.

“The second reason that defendants prevail is that their response to Jennings' complaint -- removal of the flyer without any adverse employment action against plaintiffs -- was a narrowly tailored and proportionate response to the actual workplace disruption or, perhaps better described, distraction. An actual adverse employment action against plaintiffs would very likely not be justified on these facts, and the City would be well to consider this for the future. But the City does have an "administrative interest" in avoiding situations that distract employees from their jobs. Pickering counsels that public employers must, of necessity, be afforded some leeway in fixing their employees' attention on their tasks, free from upset stemming from public controversies having no bearing on the work of the employer.”


Will’s account of the decision is as follows:

“A district court affirmed the city's right to impose speech regulations that are patently not content-neutral. It said the GNEA's speech interest -- the flier -- is "vanishingly small." The GNEA, in its brief asking the U.S. Supreme Court to intervene, responds that some of the high court's seminal First Amendment rulings have concerned small matters, such the wearing of a T-shirt, standing on a soapbox, holding a picket sign and "other simple forms of expression."

This is a highly partial account in that it implies that the court has ruled that if a speech interest is small, it can be disallowed for that reason. What the court has actually ruled is that sometimes one right needs be considered in balance with another, in this case, the employee’s right to speech and the employer’s right to maintain an efficient and non-disruptive workplace. The court actually also warned the city against the use of strong actions in cases like this one.

After reading about this case from a variety of sources, I have a couple reactions to the matter.

1. My first reaction has less to do with freedom of speech than with patterns of speech or discourse.

In a number of ways, conservatives have appropriated the discourse of their opponents. I’ve heard conservative Christians speak of the need for conservative Christians to “come out” – sometimes without a hint of irony. Will uses the language of sexual harassment and anti-discrimination regulation when saying that GNEA could plausibly claim that a “hostile environment” has been created for them.

In addition, conservatives have mastered the discourse of oppression. Gays cannot marry in 49 of 50 U.S. states and have trouble accessing a slew of basic rights (inheritance, hospital visitation, spousal benefits, adoption – just to name some of the most important) that heterosexuals, or at least married heterosexuals can take for granted, yet it’s those who oppose gay marriage who are oppressed, even though they wouldn’t lose any rights or anything if gay marriage were permitted.

This would make more sense if the expansion of rights to excluded or marginalized social groups were being played out in a zero sum game. Instead, the expansion of civil rights in the 1960s for blacks, Hispanics and others, the expansion of rights for women with the successes of feminism, and the possibility of equal rights for lesbians and gay men simply expand rights already taken for granted by one group (whites, men, or heterosexuals) to another. In each case, social change has been accompanied by conservative tails of woe and oppression. (If anything, the opposition to gay marriage and other equal rights makes even less sense to me. With the civil rights movements, southern whites did potentially face new job competition from blacks previously excluded, and men potentially face competition for jobs with women in a way not previously the case, but there’s nothing of the sort in the gay rights issue, because the expansion of gay rights is mostly about the expansion of social rights and not so much economic rights [at least not economic rights that might pit them in competition with individual heterosexuals].)

2. Many don’t seem to get that freedom of speech doesn’t mean freedom to impose one’s speech anywhere. This is true across the political divide.

I do think that it was unwise of office management to have removed GNEA’s flier (again, unless there was material in it that’s not been quoted online that was more disruptive and much less innocuous than Will’s and other’s quotes seem to indicate). Fairness would seem to indicate that if one group could disseminate their views on the bulletin board, then others should be allowed to also.

Still, freedom of speech doesn’t equal freedom to speak everywhere. There are contexts in which anyone is free to express their views, but most contexts are not so free, and often for legitimate reasons. A newspaper, such as The Washington Post for which Will writes, controls its own content and has a valid right to exclude material (including whatever letters or manuscripts anyone might want to send in) as the editors see fit – this is part of their freedom of expression. I control my own blog – I don’t often delete comments, but I can legitimately do so, and if I do, I’m not in any way denying anyone’s ability to express themselves – I would just be denying them the ability to impose their expression on a forum controlled by me. The bulletin board from which GNEA’s flier was excluded is similar. It was a forum controlled by someone else, and as the court ruled, denying the group access to the board, while technically a small infringement on speech, in no way kept the individuals from distributing their ideas in other contexts.