Amicus Curiae Brief — Joseph A. Kennedy, Petitioner v. Bremerton School District

No. 21-418

IN THE

Supreme Court of the United States

————

JOSEPH A. KENNEDY,

Petitioner,

v.

BREMERTON SCHOOL DISTRICT,

Respondents.

____________________________________________________________________________________________________

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________________________________________________________________________________________

BRIEF FOR AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

CYNTHIA FLEMING

CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY

FOUNDATION

1310 N. Courthouse Rd,

Ste. 700

Arlington, VA 22201

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

March 2, 2022

i

TABLE OF CONTENTS

Table of Authorities................................................... iii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................ 2

Argument ..................................................................... 4

I.

Government Authority to Regulate Employees’

Speech is Narrow. ................................................. 4

A.

Employees’ Speech May Be Regulated Only

While Speaking for the Government or

Imperiling Government Operations. ............... 4

B.

Government Speech Is Not All Speech Made in

a Government Setting. .....................................8

C.

Government Cannot Condition Public

Employment on Foregoing Constitutional

Rights. ............................................................. 10

II. This Court Should Eliminate Any Doubt About

The First Amendment’s Protection For Academic

Freedom. ............................................................. 11

A.

Free Speech Rights Are Not Shed at the

Schoolhouse Gate. ........................................... 12

B.

Public Schools Should Uphold Free Speech,

Not Chill It, For Students Learn from Adults

How to Treat Each Other. .............................. 14

C.

Academic Freedom is Fundamental to Civil

Society and This Court Should Place it on

Firmer Legal Footing. .................................... 16

ii

D.

Public Engagement Cannot Be Used to Excuse

Punishing Speech on Topics of Public Interest.

......................................................................... 22

Conclusion ................................................................. 24

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Chrzanowski v. Bianchi,

725 F.3d 734 (7th Cir. 2013) .................................. 9

Connick v. Myers,

461 U.S. 138 (1983) ................................... 6, 11, 13

Demers v. Austin,

746 F.3d 402 (9th Cir. 2014) .......................... 17, 19

Garcetti v. Ceballos,

547 U.S. 410 (2006) ...................................... passim

Givhan v. Western Line Consol. School Dist.

439 U.S. 410 (1979) ................................................ 5

Grutter v. Bollinger,

539 U.S. 306 (2003) .............................................. 16

Johanns v. Livestock Marketing Assn.,

544 U.S. 550 (2005) ................................................ 6

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) ...................................... 1, 4, 16

Lane v. Franks,

573 U.S. 228 (2014) .............................................. 10

Matal v. Tam,

137 S. Ct. 1744 (2017) ........................................ 6, 8

iv

Meriwether v. Hartop,

992 F.3d 492 (6th Cir. 2021) ...................... 7, 17, 20

Perry v. Sindermann,

408 U.S. 593 (1972) .............................................. 10

Pickering v. Bd. of Education,

391 U.S. 563 (1968) ...................................... passim

Planned Parenthood of Se. Pennsylvania v.

Casey,

505 U.S. 833 (1992) ................................................ 2

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ................................................ 6

Rust v. Sullivan,

500 U.S. 173 (1991) .............................................. 16

Shelton v. Tucker

364 U.S. 479 (1960) .............................................. 15

Sweezy v. New Hampshire

354 U.S. 234 (1957) .............................................. 14

Texas State Tchrs. Ass'n v. Garland Indep.

Sch. Dist.,

777 F.2d 1046 (5th Cir. 1985) ........................ 12, 13

Tinker v. Des Moines Ind. Cmty School

District,

393 U.S. 503 (1969) ................................. 12, 14, 15

v

Walker v. Texas Div., Sons of Confederate

Veterans, Inc.,

578 U.S. 200 (2015) ................................................ 8

Waters v. Churchill,

511 U.S. 661 (1994) ................................................ 6

West Virginia State Board of Education v.

Barnette,

319 U.S. 624 (1943) .............................................. 15

Wieman v. Updegraff,

344 U.S. 183 (1952) .............................................. 15

Constitutions

U S. Const. Amend. 1 ........................................ passim

Rules

Supreme Court Rule 37.3............................................ 1

Other Authorities

James Hohmann, The Daily 202: Koch

network warns of ‘McCarthyism 2.0’ in

conservative efforts to harass professors,

The Washington Post, August 1, 2018,

https://wapo.st/3vtcQx7 ....................................... 22

Judge Learned Hand, The Spirit of Liberty,

1944, Digital History,

http://bit.ly/3raLZQN ........................................... 14

vi

Everything which is not forbidden is

allowed, Wikipedia,

http://bit.ly/2TgF5vB (last visited Feb.

22, 2022) ............................................................... 15

1

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

Pursuant to Supreme Court Rule 37.3, Americans

for Prosperity Foundation (“AFPF”) respectfully

submits this amicus curiae brief in support of

Petitioner.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society. As

part of this mission, it appears as amicus curiae before

federal and state courts.

AFPF is committed to ensuring the freedom of

expression guaranteed by the First Amendment for all

Americans, including students and faculty. Campuses

are not just a place where free expression and

academic freedom should be protected; it is vital to

their mission. And they are uniquely positioned to

instill in the next generation an appreciation for free

speech. This is why “[t]he vigilant protection of

constitutional freedoms is nowhere more vital than in

the community of American schools.” Keyishian v. Bd.

of Regents, 385 U.S. 589, 603 (1967) (citation omitted

and emphasis added).

1 All parties have filed blanket consents to the filing of amicus

briefs. No counsel for a party authored this brief in whole or in

part and that no person other than amicus or its counsel made

any monetary contributions to fund the preparation or

submission of this brief.

2

SUMMARY OF ARGUMENT

The Ninth Circuit’s holding that a high school

football coach’s personal postgame prayer was

regulable government speech has placed at risk the

First Amendment rights of a much broader array of

government employees. University faculty members

are particularly at risk from any confusion about the

scope of protections afforded them because they

communicate ideas and engage in public debate about

controversial topics for a living. As “liberty finds no

refuge in a jurisprudence of doubt,”2 inconsistent or

unclear legal doctrines that can be manipulated to

include or exclude their speech, risk chilling speech

and discouraging thoughtful and civic-minded people

from taking on that risk.

This Court has been clear that speech rights of

public employees are protected by the First

Amendment and has extended special solicitude to

protecting constitutional freedoms for those who teach

in our schools and universities. Of course, where an

employee is speaking as the mouth of government,

then government can dictate what is said. Likewise,

when government purchases or delivers services, it

can manage those operations. But the Ninth Circuit’s

holding blurs these lines and creates the risk that

teachers or faculty members may be terminated for

their own personal expression.

Under Garcetti v. Ceballos, 547 U.S. 410 (2006),

government may regulate speech made pursuant to

official duties. Under Pickering v. Bd. of Education,

391 U.S. 563, 573 (1968), government may not

2 Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833,

844 (1992).

3

regulate private speech on an issue of public concern,

unless that speech imperils government operations.

For government employees, these rules can be

difficult to apply where it is unclear whether the

speech was within or outside official duties. Here, the

school board made abundantly clear that Kennedy did

not speak for the school and instructed him to avoid

even the possible perception of doing so. Such a

disclaimer would apparently place Kennedy’s speech

outside the narrow confines in which Garcetti allows

a government employer to regulate. But the Ninth

Circuit held otherwise.

The Ninth Circuit’s unnecessary confusion of the

First Amendment’s application to the speech of

publicly employed faculty members is the latest of a

series of conflicting decisions in the lower courts. At

least four circuits have inverted the Garcetti rule to

protect teachers’ speech made pursuant to official

duties—leaving teachers’ private speech at greater

risk than the speech they are paid to deliver. Having

held that Kennedy’s speech was “as a public

employee,” it would appear that the exemption for

speech pursuant to academic duties should have been

applied here. But it was not.

These conflicting doctrines degrade speech

protections for the very government employees this

Court has consistently found warrant the most

vigorous protections: teachers and professors who not

only research and publish, but also bear responsibility

for fostering the habits of open-mindedness and

critical inquiry that make for responsible citizens.

The Court should be clear. Nothing in its

government employee speech jurisprudence should be

read to restrict academic freedom or impose

4

extraordinary burdens on the speech of employees in

public schools and universities.

ARGUMENT

I.

GOVERNMENT AUTHORITY TO REGULATE

EMPLOYEES’ SPEECH IS NARROW.

Subject to certain narrow limitations, speech rights

of public employees are protected by the First

Amendment. The power of government to speak on its

own behalf and the authority of a government

employer to manage its own operations are cabined by

the

First

Amendment’s

prohibition

against

conditioning public employment on surrendering

constitutional protections.

This is particularly true for university faculty and

teachers because the “vigilant protection of

constitutional freedoms is nowhere more vital than in

the community of American schools.” Keyishian, 385

U.S. at 603. Here, the Ninth Circuit placed a thumb

on the scale in favor of speech regulation by

eliminating the requirement that an employee speak

as the government before his speech may be deemed

government speech. Misapplication of this Court’s

precedent puts at risk First Amendment protections

of any government employee whose job depends on

communicating ideas that may differ from the

government’s message.

A. Employees’ Speech May Be Regulated

Only

While

Speaking

for

the

Government

or

Imperiling

Government Operations.

This Court has established the test for First

Amendment protection of government employee

speech in Pickering, 391 U.S. 563, and Garcetti, 547

5

U.S. 410. Pickering articulated two acceptable

rationales for regulating an employee’s speech: (1)

where the employee speaks as the government rather

than as a private citizen on a matter of public

concern;3 and (2) where the speech interferes with the

government’s ability to manage its own operations.4

Garcetti, provided a streamlined test, holding that the

First Amendment does not shield from discipline

“expressions employees make pursuant to their

professional duties.” 547 U.S. at 426.

Pickering and Garcetti were decided on facts at

extreme ends of the employee speech spectrum. The

first, relating to publication of a teacher’s personal

letter to the editor discussing a bond issue,

exemplified classic community discussion of a matter

of public interest, which was protected. 391 U.S. at

566.5 Were it otherwise, government employees would

3 Garcetti, 547 U.S. at 418 (The first Pickering factor “requires

determining whether the employee spoke as a citizen on a matter

of public concern.”).

4 Garcetti, 547 U.S. at 418 (The second Pickering factor “reflects

the importance of the relationship between the speaker’s

expressions and employment . . . the restrictions [the government

entity] imposes must be directed at speech that has some

potential to affect the entity’s operations.”).

5 The Court has since clarified that public expression is not a

necessary element of protected speech. Givhan v. Western Line

Consol. School Dist., 439 U.S. 410, 414 (1979) (“This Court’s

decisions in Pickering, Perry, and Mt. Healthy do not support the

conclusion that a public employee forfeits his protection against

governmental abridgment of freedom of speech if he decides to

express his views privately rather than publicly. While those

cases each arose in the context of a public employee’s public

expression, the rule to be derived from them is not dependent on

that largely coincidental fact.”).

6

be required to sacrifice the rights of citizenship. The

second, relating to drafting a requested legal

memorandum by a supervising deputy district

attorney as part of his ordinary work duties,

epitomized speech made pursuant to official duties.

There, the Court said, the speech was not protected.

547 U.S. at 414, 426.

Emergent from these fact-specific cases are two

general precepts that, if applied consistently, would

provide robust speech protection for government

employees and much-needed clarity for when speech

is protected. First, where government speaks for

itself, it can control its own message. Matal v. Tam,

137 S. Ct. 1744, 1757 (2017) (“The Free Speech Clause

does not require government to maintain viewpoint

neutrality when its officers and employees speak

about that venture.”); Pleasant Grove City v.

Summum, 555 U.S. 460, 467 (2009) (“The Free Speech

Clause . . . does not regulate government speech.”);

Johanns v. Livestock Marketing Assn., 544 U.S. 550,

553 (2005) (“[T]he Government’s own speech . . . is

exempt from First Amendment scrutiny”). Where the

employee’s responsibility is to voice government’s

message, government can dictate what that message

is.

Second, regarding activity that a government

supervisor “reasonably believe[s] would disrupt the

office, undermine his authority, and destroy close

working relationships” government may exercise its

managerial authority. Connick v. Myers, 461 U.S. 138,

154 (1983). Relatedly, “where the government is

employing someone for the very purpose of effectively

achieving its goals . . . restrictions may well be

appropriate.” Waters v. Churchill, 511 U.S. 661, 675

7

(1994). Thus, government may ensure employees

perform the duties they are paid to perform and do not

imperil operations.

But the bulk of government employee speech

questions lie somewhere in between. And some

employees, like public university faculty—paid to

engage in public debate—raise unique challenges.

The Ninth Circuit’s application of Garcetti here

effectively undermined First Amendment protection

for government employee speech by eliminating

causation from Garcetti’s formulation and replacing it

with a status-based test. Thus, Garcetti’s rigorous

requirement that speech be “pursuant to official

responsibilities” before it can be regulated was

replaced by a status-based rule allowing regulation of

speech “as a public employee.”6 Public employment

became a proxy for proving the employee is paid to

speak these words7 on behalf of the government

employer before the First Amendment may be

avoided.

But, as this Court has made clear, public employee

status does not displace speech rights. And the

Garcetti test, despite the virtues of its simplicity, if

read broadly, as the Ninth Circuit did, would appear

to give government power to regulate constitutionally

protected speech of government employees like faculty

6 This Court has warned against defining public employment so

expansively that over-broad duties displace constitutional

protections. Garcetti, 547 U.S. at 424 (“We reject, however, the

suggestion that employers can restrict employees’ rights by

creating excessively broad job descriptions.”).

Meriwether v. Hartop, 992 F.3d 492, 503 (6th Cir. 2021)

(“government is doing the speaking”).

7

8

members whose jobs require speaking on topics that

may run counter to the government’s position. Read

narrowly, however, Garcetti can be applied to ensure

full protection of faculty speech, in all but those

limited number of cases where government has

engaged the speaker to deliver its own message.

B. Government Speech Is Not All Speech

Made in a Government Setting.

If “government speech” is an exception to the free

speech rights of individuals, it must be carefully and

narrowly defined. Government speech does not extend

to all speech made within a government setting, even

if that speech implicates some form of government

action. For example, in Matal v. Tam, the Court

rejected the contention that trademarks are

government speech, even though “trademarks that

are ‘used in commerce’ may be placed on the ‘principal

register,’ that is, they may be federally registered.”

137 S. Ct. at 1752. The government’s acceptance of the

trademark onto the register did not convert the mark

to government speech.

The holding in Walker v. Texas Div., Sons of

Confederate Veterans, Inc., in which the Court held

that specialty license plate designs are government

speech, shows the hurdles that must be overcome to

designate speech as government speech. 578 U.S. 200,

219 (2015).8 Even so, the Court was clear that its

8 The Court’s conclusion rested on multiple factors, including: the

history of license plates communicating messages from the

states; license plate designs being “often closely identified in the

public mind with the [State];” including the name Texas on every

plate; regulations on plate disposal; the function of license plates

as “essentially, government IDs;” and Texas law providing sole

9

“determination that Texas’s specialty license plate

designs are government speech does not mean that

the designs do not also implicate the free speech rights

of private persons.” Id. at 219.

Even where the speaker is a government

employee whose job duties include speech in a

particular forum, it does not follow that all speech by

such an employee in that forum is government speech.

The Seventh Circuit’s well-reasoned opinion in

Chrzanowski v. Bianchi, is instructive. There, an

assistant state’s attorney was called to testify as an

eyewitness in court. Chrzanowski v. Bianchi, 725 F.3d

734, 736 (7th Cir. 2013). The district court concluded

that plaintiff’s job duties included speaking in court

and relied on that correlation between place and

activity to hold plaintiff’s speech to be part of his

official duties. Id. at 739. But the Seventh Circuit

disagreed, holding that testimony was not

government speech subject to regulation by the State

Attorney’s Office simply because it took place in a

courtroom. Id. at 740. The Seventh Circuit did not

focus on the plaintiff’s general job duties as a state’s

attorney, but rather on the specific speech at issue,

holding that the “focus on Chrzanowski’s general

professional obligations is misguided; we are to look

only at whether particular speech is ‘made pursuant

to official duties’ (and, thus, not ‘as a citizen’) in a

more limited sense.” Id. at 741.

This admonition applies here, where, although

“expression was Kennedy’s stock in trade,” and his

speech took place “during a time when he was

state “control over the design, typeface, color, and alphanumeric

pattern for all license plates.” Id. at 210–13.

10

generally tasked with communicating with students,”

Pet. App. 14, the school board did not show that this

speech “was among the plaintiff’s job duties.” Nor

could it, given its well-publicized position that postgame prayer is not among Kennedy’s job duties. Pet.

App. 8.

C. Government Cannot Condition Public

Employment

on

Foregoing

Constitutional Rights.

“Almost 50 years ago, this Court declared that

citizens do not surrender their First Amendment

rights by accepting public employment.” Lane v.

Franks, 573 U.S. 228, 231 (2014). This rule places a

strict limit on the doctrine of government speech,

prohibiting a broad reading of an employee’s job

duties to evade First Amendment protection.

The “First Amendment limits the ability of a public

employer to leverage the employment relationship to

restrict, incidentally or intentionally, the liberties

employees enjoy in their capacities as private

citizens.” Garcetti, 547 U.S. at 419 (citing Perry v.

Sindermann, 408 U.S. 593, 597 (1972)). In his dissent

below, Judge O’Scannlain emphasized that protection

of an employee’s First Amendment rights requires

conflicts to be resolved in the employee’s favor unless

the speech was commissioned by the government.

[A] public employer’s special latitude to

control its employees’ speech extends

only to speech “the employer itself has

commissioned” or otherwise functionally

“created.” But when public employees’

expression falls outside their official job

duties, we must “unequivocally reject[]”

any suggestion that they “may

11

constitutionally

be

compelled

to

relinquish the First Amendment rights

they would otherwise enjoy as citizens.”

Pet. App. 83 (citations omitted).

Contrary to this Court’s admonition that the

courts’ “responsibility is to ensure that citizens are not

deprived of fundamental rights by virtue of working

for the government.” Connick, 461 U.S. at 147, the

Ninth Circuit removed the tight coupling required by

the second Pickering factor between the employee’s

speech and risk to government operations and

replaced it with “adequate justification for treating

Kennedy differently from other members of the

general public.” Pet. App. 17. Here, adequate

justification included unfavorable publicity. This

reading violently expands the scope of speech

government can regulate simply because it receives

complaints or negative exposure, placing at risk a

wide range of protected behavior as well as imperiling

the very public debate Pickering protects.

II.

THIS COURT SHOULD ELIMINATE ANY DOUBT

ABOUT THE FIRST AMENDMENT’S PROTECTION

FOR ACADEMIC FREEDOM.

Vigorously enforcing the limits on regulation of

government employees’ speech takes on special

urgency in educational settings where speech

regulation not only threatens academic freedom but

also teaches students a lesson in censorship that is

anathema to self-government. For teachers and

students at public schools and universities, the Ninth

Circuit’s application of Garcetti and Pickering sweeps

far too broadly; and, while “academic speech” is not

directly at issue here, the reasoning applied below to

the high school setting sets a dangerous precedent for

12

advanced education as well. The Court should close

the door on any application of Garcetti or Pickering

that would allow government to threaten academic

freedom or the speech of educators under the guise of

“adequate justification.”

A. Free Speech Rights Are Not Shed at the

Schoolhouse Gate.

“It can hardly be argued that either students or

teachers shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate.” Tinker

v. Des Moines Ind. Cmty School District, 393 U.S. 503,

506 (1969). This proposition creates a fundamental

tension with the Ninth Circuit’s decision. “By

assuming that teachers always act as teachers

between the first and last bell of the school day (or

that coaches always act as coaches from the time they

arrive for work at the school’s athletic office to the

moment the stadium lights go out on the end of a

game), the opinion . . . places itself in irreconcilable

contradiction with the most basic, ‘unmistakable’

axiom of the past century of school-speech

jurisprudence.” Pet. App. 87 (O’Scannlain, J.

dissenting). “For if, as the opinion declares, all

‘demonstrative communication’ in the presence of

students were unprotected, there would be little left

of the First Amendment—let alone Tinker’s landmark

holding—for public school employees.” Id. Accord

Texas State Tchrs. Ass'n v. Garland Indep. Sch. Dist.,

777 F.2d 1046, 1055 (5th Cir. 1985) (holding that

“policies which purport to deny teachers the right to

discuss [union] business during non-class time are

unconstitutional.”).

Tinker of course, as well as Connick, and Garland

recognized that disruptive behavior can be addressed.

13

Tinker, 363 U.S. at 507; Connick, 461 U.S. at 154;

Garland, 777 F.2d at 1055. But “disruption” must be

something more than simple exercise of First

Amendment rights. Even in cases of alleged

subversive activity, First Amendment rights of

teachers have prevailed. See Connick, 461 U.S. at 144

(collecting cases). If the First Amendment protects

membership in subversive organizations, which by

definition at least allegedly threaten the state, then

how can it not protect teacher and student speech 9

that is not subversive and poses no such threat?

But here, the alleged disruptive behavior was

allowing students, coaches and players from the

opposing team, and members of the general public and

media to exercise their own rights by joining Kennedy

in prayer. Pet. App. 7–9. If this is “disruption,” then

one strains to imagine a limit on government

employers’ power to regulate employees’ personal

expression. And, if exercise of First Amendment

rights by other people can be used to excuse regulation

of a faculty member, then the exercise of First

Amendment rights becomes the instrument of their

own destruction.

Students, of course, have their own First

Amendment rights, delimited by Tinker, which

affirmed that “forbidding discussion . . . anywhere on

school property except as part of a prescribed

classroom exercise . . . would violate the constitutional

rights of students, at least if it could not be justified

by a showing that the students’ activities would

9 Student speech is not directly implicated here except to

the

extent the holding may be applied to students who become

government

employees

through

work-study,

teaching

fellowships, etc.

14

materially and substantially disrupt the work and

discipline of the school.” 393 U.S. at 507, 513. There is

no allegation here that the students were disruptive.

But interpreting students’ peaceful participation as a

disruption that could justify silencing Kennedy

threatens to grossly expand the “disruption”

justification by which speech may be regulated in the

public school setting

B. Public Schools Should Uphold Free

Speech, Not Chill It, For Students

Learn from Adults How to Treat Each

Other.

“Liberty lies in the hearts of men and women;

when it dies there, no constitution, no law, no court

can even do much to help it.”

—Judge Learned Hand10

The importance of speech in schools cannot be

overstated as students learn from adults how to treat

each other and absorb the habits of acquiescence that

adults model. “Teachers and students must always

remain free to inquire, to study and to evaluate, to

gain new maturity and understanding; otherwise our

civilization will stagnate and die.” Sweezy v. New

Hampshire 354 U.S. 234, 250 (1957). Thus, relegating

speech “to an empty office or perhaps the teacher’s

lounge, . . . corrodes the civic virtues that underlie the

First Amendment: We ask ‘teachers to foster those

habits of open-mindedness and critical inquiry which

alone make for responsible citizens … They cannot

carry out their noble task if the conditions for the

practice of a responsible and critical mind are denied

10 Judge Learned Hand, The Spirit of Liberty, 1944, available at

Digital History, http://bit.ly/3raLZQN.

15

to them.’” Pet. App. 90. (O’Scannlain, J. dissenting)

(citing Wieman v. Updegraff, 344 U.S. 183, 196 (1952)

(Frankfurter, J., concurring)).

This Court has consistently recognized that “[t]he

vigilant protection of constitutional freedoms is

nowhere more vital than in the community of

American schools.” Tinker, 393 U.S. at 512 citing

Shelton v. Tucker, 364 U.S. 479, 487 (1960).

Regarding boards of education, the Court has said

that because they “are educating the young for

citizenship is reason for scrupulous protection of

Constitutional freedoms of the individual, if we are

not to strangle the free mind at its source and teach

youth to discount important principles of our

government as mere platitudes.” Tinker, 393 U.S. at

507 (citing West Virginia State Board of Education v.

Barnette, 319 U.S. 624, 637 (1943)). These

stouthearted claims depart from school efforts to

teach students that constitutional freedoms may be

reclassified out of existence.

Curtailing teacher speech, contrary to the First

Amendment, educates students in misunderstanding

the American system that is repugnant to the rights

secured by the Constitution; and educates the next

generation that this is the kind of relationship citizens

should expect with their government.11 It is

particularly important that schools bear in mind their

duty to educate students in the protection of

constitutional rights—wherever they are exercised.

The inclination toward a converse-Lotus principle, where

everything that is not allowed is forbidden, is contrary to the

American and English traditions and should be avoided. See

generally Everything which is not forbidden is allowed,

Wikipedia, http://bit.ly/2TgF5vB (last visited Feb. 22, 2022).

11

16

Consistent with Barnette, schools should teach

students to carry with them the understanding that

government must respect constitutional freedoms.

C. Academic Freedom is Fundamental to

Civil Society and This Court Should

Place it on Firmer Legal Footing.

This Court consistently has taken a protective

stance toward academic freedom and “long recognized

that, given the important purpose of public education

and the expansive freedoms of speech and thought

associated with the university environment,

universities occupy a special niche in our

constitutional tradition.” Grutter v. Bollinger, 539

U.S. 306, 329 (2003). Accord Keyishian, 385 U.S. at

603 (“Our Nation is deeply committed to safeguarding

academic freedom, which is of transcendent value to

all of us and not merely to the teachers concerned.”)

(cleaned up). This concern has taken precedence even

over government’s right to decide how to spend its own

money. Rust v. Sullivan, 500 U.S. 173, 200 (1991)

(“[T]he university is . . . so fundamental to the

functioning of our society that the Government’s

ability to control speech within that sphere by means

of conditions attached to the expenditure of

Government funds is restricted by the vagueness and

overbreadth doctrines of the First Amendment.”).

Notwithstanding this longstanding consensus, the

wording of Garcetti opened the door to challenges to

academic freedom. Justice Souter, in dissent, warned

that Garcetti may have fashioned an “ostensible

domain beyond the pale of the First Amendment . . .

spacious enough to include even the teaching of a

public university professor,” Garcetti, 547 U.S. at 438

(Souter, J. dissenting). And thus, he “hope[d] that

17

today’s majority does not mean to imperil First

Amendment protection of academic freedom in public

colleges and universities, whose teachers necessarily

speak and write ‘pursuant to ... official duties.’” Id.

The Court acknowledged the risk: “Justice Souter

suggests today’s decision may have important

ramifications for academic freedom, at least as a

constitutional value. . . . There is some argument that

expression related to academic scholarship or

classroom

instruction

implicates

additional

constitutional interests that are not fully accounted

for by this Court’s customary employee-speech

jurisprudence.” Id. at 425. But, because Garcetti did

not require the Court to reconcile those implications,

it did not reach that question. Id.

Four Circuits, likewise recognizing the risk, have

carved out an exception to Garcetti for speech by

professors in an academic setting. See Meriwether v.

Hartop, 992 F.3d 492, 505 (6th Cir. 2021) (joining

“three of our sister circuits: the Fourth, Fifth, and

Ninth” in reaffirming the conclusion that “professors

at public universities retain First Amendment

protections at least when engaged in core academic

functions, such as teaching and scholarship”). The

Ninth Circuit, in particular, has noted the risk

Garcetti presents in the academic setting because

“teaching and academic writing are at the core of the

official duties of teachers and professors.” Demers v.

Austin, 746 F.3d 402, 411 (9th Cir. 2014) (cleaned up).

Thus, in Demers the Ninth Circuit found that “if

applied to teaching and academic writing, Garcetti

would directly conflict with the important First

Amendment values previously articulated by the

Supreme Court,” concluding “that Garcetti does not—

18

indeed, consistent with the First Amendment,

cannot—apply to teaching and academic writing that

are performed ‘pursuant to the official duties’ of a

teacher and professor.” Id. at 411–12.

This formulation, at first blush, would appear

consistent with this Court’s solicitude to academic

freedom. But further examination shows that it is of

limited application, being confined to only speech

“pursuant to official duties,” which the Ninth Circuit

distinguished from other “academic employee

speech.”12 Id. at 412.

Protection of academic employee speech “not

covered by Garcetti,” is diminished by the Ninth

Circuit’s treatment of the Pickering factors, which

discards disjunctive application and instead employs

a newly-fashioned conjunctive:

We hold that academic employee speech

not covered by Garcetti is protected

under the First Amendment, using the

analysis established in Pickering. The

Pickering test has two parts. First, the

employee must show that his or her

speech addressed ‘matters of public

concern.’ . . . Second, the employee’s

interest ‘in commenting upon matters of

public concern’ must outweigh ‘the

interest of the State, as an employer, in

promoting the efficiency of the public

Note, the terminology “academic employee speech” as used

here is speech of academic employees, which may be “covered by

Garcetti” if “pursuant to official duties”, or “not covered by

Garcetti” if outside official duties.

12

19

services it

employees.’

performs

through

its

Demers, 746 F.3d at 412 (citing Pickering, 391 U.S. at

568). Thus, under Demers, an academic’s speech

rights can be limited even while speaking on matters

of public concern if the state’s interest exceeds the

employee’s interest. This is a lesser protection than

Pickering provides, which includes an off-ramp to the

speaker at the first step if the speech is on a matter of

public concern. Coupled with Demers’ recognition that

“not all speech by a teacher or professor addresses a

matter of public concern. Teachers and professors, like

other public employees, speak and write on purely

private matters,” Demers, 746 F.3d at 415, what

began as a general recognition of the importance of

academic freedom, ended by curtailing protection of

teachers’ speech to matters of public concern that also

outweigh the interest of the state. What it gives with

one hand, the Ninth Circuit takes away with the

other. Moreover, the decision below casts even the

limited protection of Demers into doubt by recognizing

negative publicity, public participation, or even

positive commentary as a state interest sufficient to

justify regulation—leaving the faculty member’s

speech rights subject to the whimsy of the public.

Other circuits have made more robust attempts to

protect academic speech. The Sixth Circuit, for

example, approached the question from the opposite

side and instead of requiring the employee’s interest

to outweigh the interest of the state, focused first on

the state’s limited interest in controlling the teacher:

“a school’s interest in limiting a teacher’s speech is not

great when those public statements are neither shown

nor can be presumed to have in any way either

20

impeded the teacher’s proper performance of his daily

duties in the classroom or to have interfered with the

regular operation of the schools generally.”

Meriwether, 992 F.3d at 511 (cleaned up). Thus,

without a showing that the challenged speech

“inhibited [the teacher’s] duties in the classroom,

hampered the operation of the school, or denied [the

student] any educational benefits” the school’s

interest in punishing the professor was not sufficient.

Id. (cleaned up). The Sixth Circuit thus concluded that

“[t]ogether, Sweezy and Keyishian establish that the

First Amendment protects the free-speech rights of

professors when they are teaching.” Meriwether, 992

F.3d at 505. This, of course, flips the formulation of

Garcetti because while teaching, a teacher’s speech

would—by definition—be “pursuant to official

responsibilities.”

How would such a Hall of Mirrors approach work

here?

If Kennedy were deemed to be speaking “pursuant

to official responsibilities” then under Garcetti his

speech would be sanctionable, but under Demers et al.

it would not. If Kennedy were deemed to be speaking

outside his official responsibilities, then under

Garcetti his private speech would be protected but

under Demers, it would not qualify for the academic

carve-out. Regardless whether his speech was

pursuant to his official duties, it should have been

protected under either Garcetti or Demers because it

had to qualify for one or the other.

Under the Ninth Circuit’s analysis it qualified for

neither.

First, the Ninth Circuit concluded that “there is

simply no dispute that Kennedy’s position

21

encompassed his post-game speeches to students on

the field” and thus “Kennedy spoke as a public

employee when he kneeled and prayed on the fiftyyard line immediately after games.” Pet. App. 15, 17.

If so, then the Demers carve-out for teaching applied,

affording him full First Amendment protection.

Instead, the court applied Garcetti to justify

regulation of a public employee’s speech.

Applying this reasoning in a university setting, a

public law school professor may comment in

conversation at a university event on a colleague’s

recently published book, which is not in his field of

study. A participant in the conversation may repeat

the remark, noting favorably how well-read the

professor is, to a member of the law school

administration who takes offence at the remark, with

which he disagrees. The administrator, repeating,

amplifying, and characterizing the remark, creates a

public furor both for and against the professor, to

which the professor responds. Under the analysis

below, the professor’s comment could be sanctioned as

“employee speech” under Garcetti because it was

made within his status “as a public employee” at a

university event. But what about Demers et al.’s

protection for “teaching and academic writing . . . at

the core of the official duties of teachers and

professors”? The professor would have no recourse

under Demers because his comment was not within

his own teaching and academic writing, leaving him

to show his remark was on a matter of public concern

that outweighs the interest of the state. Relying on the

ruling below, the school would then point to the public

debate to allege “disruption” as justification for

punishing the professor’s speech.

22

This mix-and-match analysis shows the fragile

ground on which academic speech stands if the

current highly-flexible interpretations of Garcetti

apply.

Being paid to write and speak, public university

faculty are often at the center of firestorms over their

expression. And social media makes virtually every

statement made by a faculty member a potential

“disruption” in the sense that the Respondents treated

it here. In recent years faculty members have faced

frequent efforts by both sides of the culture wars to

have them fired or punished for their speech—often

taken out of context and amplified on social media.13

If the Court’s careful solicitude for academic

freedom is to hold, it must be given stronger footing

than Garcetti, which, if applied as the Ninth Circuit

did here, would render the bulk of academic speech

unprotected as government speech—uttered pursuant

to official teaching duties. The Court must expressly

protect the speech of publicly employed faculty

members and students or the days are numbered for

publicly-funded teaching and research that does not

toe the party line.

D. Public Engagement Cannot Be Used to

Excuse Punishing Speech on Topics of

Public Interest.

Seriatim exercise of First Amendment rights

should not be treated as compounding sin, as if each

13 See also James Hohmann, The Daily 202: Koch network warns

of ‘McCarthyism 2.0’ in conservative efforts to harass professors,

The Washington Post, August 1, 2018, available at

https://wapo.st/3vtcQx7 (discussing recent on-campus attempts

to limit speech on controversial topics).

23

additional exercise of speech rights somehow digs a

deeper hole of infamy. Yet here, when Kennedy

publicly discussed his dispute with the school board

through “numerous appearances and announcements

[on] various forms of media” Pet. App. 7, the Ninth

Circuit characterized that public speech as “pugilistic

efforts to generate publicity” that engendered First

Amendment violations.14 Pet. App. 19.

But the law strongly protects public speech on

matters of public interest, and thus, if anything, the

burgeoning public interest in Kennedy’s plight should

have expanded protection for Kennedy’s speech,

making it squarely “a matter of legitimate public

concern” that Pickering found to be protected. 391

U.S. at 571. 575. That his public speech may have

been critical of the School Board does not decrease the

protection. 391 U.S. at 570 (“to the extent that the

[School] Board’s position here can be taken to suggest

that even comments on matters of public concern that

are substantially correct, . . . may furnish grounds for

dismissal if they are sufficiently critical in tone, we

unequivocally reject it.”).

Yet, the Ninth Circuit took an adversarial stance

toward public discussion of Kennedy’s plight and

other evidence of public interest, such as participation

by third parties and students. Pet. App. 19. (“Kennedy

actively sought support from the community in a

manner that encouraged individuals to rush the field

to join him and resulted in a conspicuous prayer circle

that included students.”).

14 The Ninth Circuit found that Kennedy’s media appearances

converted his religious exercise into an Establishment Clause

violation. Pet. App. 18–19.

24

This gets the law backwards. Pickering, 391 U.S.

at 568 (collecting cases). Public concern heightens

First Amendment protection, requiring government to

justify any restriction. 391 U.S. at 570, 573. Moreover,

there is no basis for the Ninth Circuit’s conclusion

that Kennedy’s media appearances precluded his onfield prayer from being personal and private. Pet.

App. 20. If anything, the public dispute should dispel

any lingering doubt that Kennedy was speaking in his

personal capacity and not as the voice of the school,

whose displeasure had been publicly disclosed.

CONCLUSION

The Court should reverse the Ninth Circuit and

clarify that its precedents regarding public

employment should not be read to diminish academic

freedom or weaken First Amendment protection

within public educational institutions.

Respectfully submitted,

CYNTHIA FLEMING CRAWFORD

Counsel of Record

CASEY MATTOX

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

March 2, 2022