Amicus Curiae Brief — Good News News Employee Employee Association Association Association v. Hicks (No. 06-1619)

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

FILED

No. 06-1619 | SUL 6 2007

UEREME COURT, U.S.

IN THE

Supreme Court of the United States

GOoD NEWS EMPLOYEE ASSOCIATION,

REGINA REDERFORD, ROBIN CHRISTY,

Petitioners,

JOYCE M. HICKS, in her individual and official capacities as

Deputy Executive Director of the Community & Economic

Development Agency of the City of Oakland, ROBERT C.

Boss, in his individual and official capacities as City

Manager of the City of Oakland,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

UNITED STATES JUSTICE FOUNDATION

IN SUPPORT OF PETITIONERS

GARY G. KREEP *

D. COLETTE WILSON

ALLISON K. ARANDA.

UNITED STATES JUSTICE

FOUNDATION

932 “D” St., Suite3 .

Ramona, California 92065

(760) 788-6624

* Counsel of Record Counsel for Amicus Curiae

ET ES LE SS OT TE STE ST A |S NRE MRA een ae Rr I ST ee

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

The City of Oakland has enacted a restrictive antidis-

crimination/nonharassment policy that bars future use of

potentially harassing speech in the workplace. Specifically,

the City has banned the Good News Employee Association

from posting flyers that use the words “natural family,

marriage, and family values” because the City contends that

the Good News Employee Association’s viewpoint on same-

sex marriage conflicts with the City’s antidiscrimination

policy.

1. Does the City of Oakland’s opening of a limited public

forum, which allows city employees to post political, reli-

gious, and social views on an employee bulletin board and

interoffice email system, require a strict scrutiny standard of

review where viewpoint discrimination has been enforced

against only select employees?

2. When does a municipal employer have a “legitimate

administrative interest” in censoring the terms “natural

family,” “marriage,” and “family values” on an open em-

ployee bulletin board and interoffice email system where

employee views about social events, hate, religion, homo-

sexuality, terrorism, politics, and war are allowed?

3. Can a public official’s qualified immunity be abro-

gated when he/she rejects a faith-based organization’s equal

access to an employee bulletin board because the terms

“natural family,” “marriage,” and “family values” are con-

sidered disruptive to the efficient operation of a municipal

workplace?

4. Is it a prior restraint for a municipal employer to

declare, as a matter of policy, the terms “natural family,”

“marriage,” and/or “family values” to be hate-speech ‘per se”?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED .........ccsssessoecsecssecsesssscasecoes

oe Fe Bs S| 5; |

II.

The Court should grant review because the

City of Oakland has enacted an antidiscrimi-

nation/nonharassment policy that is a prior

restraint of speech not permitted under the

First Amendment of the United States

RMIT csikactsidoicnsnonicesiniasissnitithashianscnsanintneveete

The Court should grant review because the

City of Oakland’s prohibition against any use

of the words “natural family,” “marriage,” and

“family values” violates the right of members

_of the Good News Employee Association to

free speech and equal protection of the laws. ....

Sega Nacoxsbatabssinsvbasdiienilcnisaln isimslonipiecbanncueaiegnaeiads

TABLE OF AUTHORITIES

CASES Page

Aguilar v. Avis Rent a Car System, Inc., 21 Cal.

WR 88 CREE victincacinisanamaiadannis 4,7

Alexander v. U.S., 509 U.S. 544, 113 S.Ct. 2766,

Pale ST: eS |, 2} RCC Ee cn Onno Sn 3

Avis Rent a Car System, Inc. v. Aguilar, 529 U.S.

1138, 120 S.Ct. 2029, 146 L.Ed.2d 971 (2000). 4,7

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83

Re Tee Leet OE C8 Me casiccnssneiaocesnsesess 4

Chaplinsky v. New Hampshire (1942) 315 U.S.

568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)........... 5

Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780,

PF Ci NE OAT BP icisisiesnwekcanitinanbuviiiebndenetens 8,9

Cornelius v. NAACP Legal Defense and Educa-

tional Fund, 473 U.S. 788, 105 S.Ct. 3439, 87

ieee aU SIE Bia cdinmslcentainilaobsieeicmanecunileioors 10, 13

Harris v. Forklift Systems, Inc., 510 U.S. 17, 114

S.Ct. 367, 126 L.EG.26 295 (1993)......ccesisseccases 7, 14

Lamb’s Chapel v. Center Moriches Union Free

School Dist. (1993) 508 U.S. 384, 113 S.Ct.

ZUSL, 124 LBA. 352 C1993) vecorsscsvessccicesaneses 9,10, 11

Lister v. Defense Logistics Agency, 482 F.Supp.

Fg yp MRRIRR ROE eeseeteire net ow rma SMURFS 12

Madsen v. Women's Health Center, Inc., 512

U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593

DWN kc tie cesssvcsis pacessiehioptiaeocaueaicnatiavanteuanecenees 7

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607,

EU Ee TT Baiada icdnadctiiniadeosanninabawes 5

Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625,

Ta Re Se ME Paitin Siesbenisegencissickiacsininaunden 4,5

New York Times Co. v. United States, 403 U.S.

713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971)....... 4

Perry Education Assn. v. Perry Local Educator’

Assn., 460 U.S. 34, 103 S.Ct. 948, 74 L.Ed.2d

FEA FPR diviscrtbinitasiadsendeisncieiacosuicmacaauaanlens 9, 10, 13

TABLE OF AUTHORITIES—Continued

Page

Pittsburgh Press Co. v. Human Rel. Comm’n,

413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669

Iv ar isis Gicceisen bicuiauiiehicasesbide ssasiglchsnlsaieanlssbsthphibnieds 5

Planned Parenthood Shasta-Diablo, Inc. y.

Williams, 10 Cal.4th 1009 (1995)..............ccs000 13

Police Department of the City of Chicago v.

Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33

SR eA EE PI iccpnsisubconninccnnininahnabonatcanbbatinies 9, 13

R.A.V. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538,

EE IE Nove ncsshnsnnanastavabninebnsincedin 5, 6, 12

Rosenberger v. Rector and Visitors of University

of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132

ER BE Eo ie cikeshsnkcinsonevsqrasobusdilonsnayeniaenini 11,12

Southeastern Promotions, Ltd. v. Conrad, 420

U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448

Pew ess cliccckdinsdinicccindtnssieastohnispssinhonbbeoddaeibbadiios aw

Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533,

BERD ERMA Aie Ue 18 I Dic ccccseneiessscnisionsonsenckoens ee

U.S. v. National Treasury Employees Union, 513

U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964

EI siascclaticiels\ skh talk shawandiedtadaninsaiieuidinasmenbelantadebans 14

Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269,

FAP Bo RNs ME GF FEL Pisancostcsassicasnsnnsessonsensnisstene 9

Young v. American Mini Theatres, 427 U.S. 50,

96 S.Ct. 2440, 49 L.Ed.2d 310 (19 76)............... 6

CONSTITUTIONAL PROVISIONS

The First Amendment to the United States

CII sataissicscinsasicistvonsanenssnserenshassencabbanssonan passim

The Fourteenth Amendment to the United States

Ie ici eich rochdscs sicivteesedeenlhdipielicen passim

TABLE OF AUTHORITIES—Continued

NON-FEDERAL STATUTES Page

California Government Code § 12940 (Fair Em-

ployment and Housing Act)............cccscccseseeseees 7

MISCELLANEOUS

M. Nimmer, Nimmer on Freedom of Speech

STATEMENT OF INTEREST OF AMICUS '

Amicus seek to insure that state and local government

agencies alike — in their zealous attempts to “protect” against

workplace discrimination — do not enact employment policies

designed to compel acceptance of the homosexual lifestyle

through content-based viewpoint discrimination against speech

on such a notable issue of public concern. State and local

government agencies have erroneously equated this lifestyle

choice to a special, protected, status, unmatched by any other

protected class under any American law. Municipalities such

as the City of Oakland have thus wielded their power as law

and policymakers to force private groups to endorse and

condone beliefs and behavior in the name of advancing “civil

rights.”

_ Constitutional free speech guarantees are in undeniable

tension, if not conflict, with the statutory rights of employees

to be free from discriminatory verbal harassment that creates

a hostile work environment. Although this tension has gen-

' Pursuant to Rule 37, subdivision (6), this brief was not authored in

whole or in part by counse! for a party, and no person or entity, other than

amicus curiae, has made a monetary contribution to the preparation or

submission of this brief. It should be noted however, that amicus was

previously counsel for petitioner when the civil complaint was initially

filed in the United States District Court, Northern Division California.

Richard D. Ackerman, who handled the case while employed for USJF,

took the case with him when he left USJF to go into private practice in

2003; however, Gary G. Kreep — Executive Director of USJF — remained

on file as co-counsel of record until February 14, 2005, when the district

court issued its final ruling. Thereafter, Mr. Ackerman, as an attorney with

the Pro-Family Law Center, appealed the district court’s decision without

the involvement of USJF. As such, amicus has not been counsel for a

party to the action since the district court’s decision on February 14, 2005.

Amicus submits the accompanying brief pursuant to Rule 37 of the Rules

of this Court as amicus curiae in support of Petitioner. The brief is sub-

mitted with the consent of both the Petitioner and the Respondent, whose

consent letters have been lodged with the Clerk of the Court.

erated lively debate in scholarly legal journals, the United

States Supreme Court has yet to address the issue. This case

presents one aspect of the problem: the use of Administrative

Employment Policies prohibiting certain kinds of future

speech, on the basis of its content, as a remedy for hostile

environment employment discrimination.

The United States Justice Foundation is a nonprofit cor-

poration organized under the laws of the State of California

and dedicated to the preservation of civil and human rights.

Since its inception in 1979, USJF has regularly assisted indi-

viduals and classes, not only to seek redress for significant

acts of injustice, but also to promote valuable public policy

matters.

Amicus has concerns that the holding of the Ninth Circuit

Court of Appeals in this case, if left unchecked, will set a

precedent for other government entities to enact similar anti-

discrimination policies designed to suppress unpopular and/or

unfavorable expressions under the guise of creating a ‘safe

work environment,’ which, in reality, results in a prior restraint

of otherwise constitutionally protected speech and viewpoint

based free speech discrimination. Amicus urge the Court to

grant the petition.

SUMMARY OF THE ARGUMENT

This case presents the profoundly important issue of whether

a government agency may, in an effort to promote a non-

hostile work environment, prohibit a person from engaging in

speech that is perceived to be offensive, but is nonetheless

protected by the First Amendment of the United States

Constitution.

Amicus curiae will offer two arguments: First, that the

City of Oakland’s antidiscrimination/nonharassment policy

constitutes a prior restraint of expression that is clearly pro-

tected by the First Amendment of the Constitution of the

United States. Second, that the City’s prohibition against any

use of the words “natural family,” “marriage,” and “family

values” violates the right of members of the Good News

Employee Association to free speech and equal protection of

the laws guaranteed by the United States Constitution.

No decision by the United States Supreme Court has, as

yet, declared that the First Amendment permits restrictions on

speech creating a hostile work environment. Accordingly, a

serious question arises whether or not the prohibition of the ©

phrases “natural family,” “marriage,” and “family values” in

this case constitutes an impermissible prior restraint on Ms.

Rederford’s and Ms. Christy’s speech.”

Moreover, one of the bedrock principles of free speech

jurisprudence is the unshakeable notion that the government

may not prohibit the expression of an idea simply because

society finds the idea or viewpoint offensive or disagreeable.

Antidiscrimination employment policies, like the one here,

that regulate speech on the basis of content and viewpoint,

threaten the very freedom that this country was founded upon.

ARGUMENT

I. The Court should grant review because the City

of Oakland has enacted an antidiscrimination/

nonharassment policy that is a prior restraint of

speech not permitted under the First Amendment

of the United States Constitution.

The term ‘prior restraint’ is used to describe administrative

and judicial orders forbidding certain communications when

issued in advance of the time that such communications are

to occur.’ Temporary restraining orders, permanent injunc-

? Petitioners in no way concede that the mere words “natural, family,

marriage, and values” alone, nor, as used in this case, create a hostile work

environment.

> Alexander v. United States (1993) 509 U.S. 544 [550, 113 S.Ct. 2766,

2771, 125 L.Ed.2d 441] [citing M. Nimmer, Nimmer on Freedom of

tions, administrative employment policies prohibiting the use

of certain words—i.e., all governmental action that forbids

speech activities—are classic examples of prior restraints.‘

Prior restraints of speech are particularly inimical because

they do not merely place a burden on the speaker’s ability

to communicate a message; rather they erase that message

before its effects can be assessed.”

The law generally prohibiting prior restraints on speech is

well-settled. “Any system of prior restraints of expression

comes to this Court bearing a heavy presumption against its

constitutional validity.”° As such, the government bears a

heavy burden to justify a prior restraint.’ The presumption is

by no means rebutted here. The antidiscrimination/nonhar-

assment policy, adopted by the City of Oakland, and the

memorandum dated February 20, 2003 that interprets the

policy, bars use of the words “natural family,” “marriage,”

and “family values.” The policy at issue here—enjoining any

future use in the workplace of specified words—not only

restrain speech, but does so unmistakably on content grounds.

Attaching liability to the utterance of words in the work-

place is invalid for the simple reason that this speech is fully

protected speech.* No one claims that the words “natural

family,” “marriage,” and “family values” qualify as fighting

Speech § 4.03, p. 4-14 (1984)]. See also, Near v. Minnesota ex rel. Olson

(1931) 283 U.S. 697 [S1 S.Ct. 625, 75 L.Ed. 1357].

“ M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-16 (1984).

> Aguilar v. Avis Rent a Car System, Inc. (1999) 21 Cal. 4th 121, 193

(dis. opn. of Kennard, J.).

L.Ed.2d 584].

” New York Times Co. v. United States (1971) 403 U.S. 713, 714 [91

S.Ct. 2140, 2141, 29 L.Ed.2d 822].

® Avis Rent a Car System, Inc. v. Aguilar (2000) 529 U.S. 1138, 1141

[120 S.Ct. 2029, 146 L.Ed.2d 971] (dis. opn. of Thomas, J.).

words,” obscenity,'° or some other category of speech cur-

rently recognized as outside the scope of First Amendment

protection.’ Quite the contrary, the policy at issue consti-

tutes a broad prohibition touching on core protected speech.

It applies to words that, although perceived as offensive by

one employee, may be used to convey, ideas or emotions and

are therefore shielded by the First Amendment. Furthermore,

the content-based nature of the City’s restriction—which bars

derogatory speech based upon race/national origin/ancestry,

gender, sexual orientation, age, religion, marital status/ preg-

nency, military status, medical condition, and physical and/or

mental disability, but not because of political affiliation,

union membership, or numerous other traits—renders it

invalid under the United States Supreme Court’s current

jurisprudence.

The speech that the City of Oakland has enjoined is expres-

sion of a particular viewpoint, on a particular subject. In spite

of the laudable goal of creating a more welcome workplace

climate, such a ban is a classic prior restraint of the kind that

courts may not impose.'? As the United States Supreme

Court made clear in R.A.V. v. City of St. Paul, targeting

speech on the basis of its message or viewpoint is not per-

missible under the First Amendment of the United States

* Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572 [62 S.Ct.

766, 86 L.Ed. 1031].

L.Ed.2d 419]. |

'' See e.g., Pittsburgh Press Co. v. Human Rel. Comm’n (1973) 413

U.S. 376 [93 S.Ct. 2553, 37 L.Ed.2d 669] [validating prohibition that ex-

tended only to commercial speech already determined to be legally unpro-

tected by the First Amendment].

2 RAV. v. St. Paul (1992) 505 U.S. 377, 391 [112 S.Ct. 2538, 120

L.Ed.2d 305).

'3 Near v. Minnesota (1931) 283 U.S. 697 [51 S.Ct. 625, 75 L.Ed. 1357].

Constitution.'* The desire to protect victims and vulnerable

groups from discrimination in all forms is admirable. Yet, so

worthy a goal does not permit courts or agencies to circum-

vent the clear precepts of the Constitution.

The City’s antidiscrimination/nonharassment policy imper-

missibly restricts speech based on the mere assumption that

these words will inevitably create a hostile and abusive work

environment amounting to employment discrimination.'> The

“forbidden words” at issue here are a far cry from slurs,

vulgarity and derogatory epithets; however, even the prior

restraint of slurs, vulgarity, and derogatory epithets in the

workplace—and even by a person who has previously en-

gaged in discriminatory conduct in the workplace—is

unconstitutional. This is because the offensive content and

effect of using any one, or more, of a list of verboten words

cannot be determined in advance. The line between permissi-

ble advocacy and impermissible incitation to crime or vio-

lence depends on the setting in which the speech occurs, the

exact words spoken, and the content of the utterance. '°

The presumption against prior restraints is heavier—and

the degree of protection broader—than that against limits on

expression imposed by criminal penalties. Behind the dis-

tinction is a theory deeply etched in our law: a free society

prefers to punish the few who abuse rights of speech after

they break the law than to throttle them and all others

'* RAV. v. St. Paul (1992) 505 U.S. 377 [112 S.Ct. 2538, 120 L.Ed. 2d

305).

'S Even if some types of harassing speech in the workplace do not

enjoy First Amendment protection, there has been no showing that a prior

restraint, rather than a less severe remedy of money damages for any

future violations, is necessary to prevent a hostile work environment.

'® Young v. American Mini Theatres (1976) 427 U.S. 50, 66 [96 S.Ct.

2440, 49 L.Ed.2d 310).

beforehand.'” It is always difficult to know in advance what

an individual will say, and the line between legitimate and

illegitimate speech is often so finely drawn that the risks of

freewheeling censorship are formidable.

The instant policy is insufficiently tailored in at least three

respects, raising serious doubts concerning whether “the chal-

lenged provisions of the policy burden no more speech than

necessary to serve a significant government interest.”'* First,

the policy prohibits even a single utterance of a prohibited

word. Yet a hostile environment for purposes of the Califor-

nia Fair Employment and Housing Act!? only arises “when

the workplace is permeated with discriminatory intimidation,

ridicule, and insult, that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create

an abusive working environment.””” An employee surely has

a substantial interest in a work environment that is not hostile

or abusive but this interest is invaded in an intolerable manner

only when harassing speech actually produces a hostile or

abusive environment.”’ It cannot be known in advance

whether a particular utterance will create (or recreate) a hos-

tile environment under this standard, and speculation simpiy

does not suffice to rebut the heavy presumption against a

prior restraint.2* Second, there has been no showing that the

'7 Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558-

559 [95 S.Ct. 1239, 43.L.Ed.2d 448].

'8 Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753, 765

[114 S.Ct. 2516, 129 L.Ed.2d 593].

'? Cal. Govt. Code § 12940.

° Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [114 S.Ct.

367, 126 L.Ed.2d 295}.

2! Aguilar v, Avis Rent a Car System, Inc. (1999) 21 Cal 4th 121, 184

(dis. opn. of Kennard, J.).

2 Avis Rent a Car System, Inc. v. Aguilar (2000) 529 U.S. 1138, 1143

[120 S.Ct. 2029, 146 L.Ed. 2d 971] (dis. opn. of Thomas, J.).

prospect of a money damages judgment for future violations

would fall short of deterring petitioners from creating a hos-

tile environment. Third, the prohibition applies without

regard to whether the utterance is directed at Judith Jennings,

the sole complaining co-worker in this case, and contains no

exception for speech that might contribute to reasoned debate.

It is significant that we deal here with a claim at the core of

the First Amendment — that the State is suppressing speech

that it dislikes. We as a nation so value the free exchange

of ideas that we are willing to tolerate, even offensive ideas,

knowing that “one man’s vulgarity is another’s lyric.”” By

embracing the City of Oakland’s all-encompassing ban against

the use of any word that may imply any amount of hostility

towards a limited selection of individuals in the workplace,

the Ninth Circuit gutted the bedrock principles underlying

the prior restraint doctrine and effectively, yet erroneously,

created a “work-place speech exception” to the First Amend-

ment. For the same reason that the Court evaluates prior

restraints under a heavy presumption against their validity,

the Court should decide the issue now.

II. The Court should grant review because the City of

Oakland’s prohibition against any use of the words

“natural family,” “marriage,” and “family values”

violates the right of members of the Good News

Employee Association to free speech and equal

protection of the laws.

The Community and Economic Development Agency of

the City of Oakland prohibits certain flyers and posters from

being displayed on workplace “bulletin boards” open to all

employees based on the content and viewpoint of the message

expressed on the flyer or poster. The City’s policy violates

the First Amendment right to Freedom of Speech and the

23 Cohen v. California (1971) 403 U.S. 15, 25 [91 S.Ct. 1780, 1788, 29

L.Ed.2d 284).

Fourteenth Amendment guarantee of Equal Protection under

the laws because there is no appropriate governmental interest

suitably furthered by the City’s differential treatment.

There is no question that the City of Oakland may legally

preserve the property under its control for the use to which it

is dedicated.** The extent to which the Government may

restrict access depends on the nature of the relevant forum.

But the government is powerless to restrict expression whether

because of its message, its ideas, its subject matter, or it’s

content.”> Necessarily, then, under the Equal Protection

Clause, not to mention the First Amendment itself, the gov-

ernment may not grant access to a given forum to people

Whose views it finds acceptable, while denying it to whose

views it finds “unacceptable.””°

The principal purpose of a traditional public forum is the

free exchange of ideas; therefore, speakers may be excluded

from a public forum only when necessary to serve a compel-

ling state interest which is narrowly drawn to achieve the

desired goal.”’ Similarly, when the Government has inten-

tionally designated a place or means of communication as a

public forum, speakers may not be excluded without a com-

pelling governmental interest.2* Access to a nonpublic

forum, however, can be restricted as long as the restrictions

?* Lamb's Chapel v. Center Moriches Union Free School Dist. (1993)

508 U.S. 384, 390 [113 S.Ct. 2141, 124 L.Ed.2d 352].

> Cohen v. California (1971) 403 U.S. 15, 24 [91 S.Ct. 1780, 1787, 29

L.Ed.2d 284].

2° Police Department of the City of Chicago v. Mosley (1972) 408 U.S.

92 [92 S.Ct. 2286, 33 L.Ed.2d 212].

vi Perry Education Assn. v. Perry Local Educator’ Assn. (1983) 460

U.S. 37, 45 [103 S.Ct. 948, 954, 74 L.Ed.2d 794].

28 Id. at 45. See also, Widmar v. Vincent (1981) 454 U.S. 263 [102 S.Ct.

269, 70 L.Ed.2d 440}.

are “reasonable and are not an effort to suppress expression

merely because public officials oppose the speaker’s view.””°

The City of Oakland opened up a forum — i.e., the work-

place bulletin boards — for employees to speak their views on

political issues, post comics, share ideas, and advertise their

various associational activities.°° When Ms. Rederford and

Ms. Christy, members of the Good News Employee Associa-

tion, asked for the same opportunity to openly communicate

with others about their Christian activities and views on

family, the City of Oakland denied them equal access to the

designated public forum. The City violated the First Amend-

ment and Fourteenth Amendment when it denied access to

the members of the Good News Employee Association solely

to suppress the point of view they supported on an otherwise

includible subject — namely the politically charged debate

about same-sex marriage.””'

In Lamb’s Chapel v. Center Moriches Union Free School

District, the Supreme Court concluded that a regulation which

excludes all religions, while advancing or permitting advo-

cacy of non-religious associations violates the First Amend-

ment.*? The court held that a public school district violated

the First Amendment by opening school facilities for after-

school meetings of associations, other than religious organi-

?° Id. at 46. See also, Cornelius v. NAACP Legal Defense and Educa-

tional Fund (1985) 473 U.S. 788, 800 [105 S.Ct. 3439, 87 L.Ed.2d 567].

°° Even if the Court views the bulletin board as essentially a non-public

forum, the government may only restrict access, if such efforts are reason-

able and not an effort to suppress expression. The City of Oakland fails to

meet even the rational basis standard and, thus, its viewpoint based exclu-

sion of petitioners’ religious beliefs and political opinions from the em-

ployee bulletin board is unconstitutional.

>" Lamb's Chapel v. Center Moriches Union Free School District (1993)

508 U.S. 384 [113 S.Ct. 2141, 124 L.Ed.2d 352].

32 Ibid.

zations.”> The court noted that although a speaker may be

excluded from a non-public forum if he wishes to address a

topic not encompassed within the purpose of the forum, the

government violates the First Amendment when it denies

access to a speaker solely to suppress the point of view he

holds on an otherwise includible subject.**

The same principles were expressed in Rosenberger v.

Rector and Visitors of University of Virginia.*> In Rosenber- -

ger, the University of Virginia, a state school, authorized

payments for the printing of student publications. A student

association that “primarily promotes or manifests a particular

belief in or about a deity or an ultimate reality” was excluded

from such funding.*° The Supreme Court held that the exclu-

sion of all religious organizations from the benefits given to

the other student associations was unconstitutional.*? The

court noted that it is as objectionable to exclude both a

theistic and an atheistic perspective on the public debate

about racism, as it is to exclude one, the other, or yet another

political, economic, or social viewpoint on a given subject.*®

Both Lamb’s Chapel and Rosenberger involve the same

principles as the matter at hand. Similar to here, the govern-

ment was not required to make facilities or funding available

to any group. Once such benefits were voluntarily afforded

by the governmental agency, however, an outright exclusion

of religious groups or messages was unconstitutional. Like-

wise, having provided the forum of a bulletin board for its

33 Ibid.

¥ Id. at 393-394

*5 Rosenberger v. Rector and Visitors of University of Virginia (1995)

$15 U.S. 819 [115 S.Ct. 2510, 132 L.Ed.2d 700}.

36 Ibid.

employees, it is unconstitutional for the City of Oakland to

exclude the religious or socially conservative viewpoint on

the topic of same-sex marriage.*”

A court order, a legislative act, and an administrative

policy that regulate speech on the basis of its topic are called

content-based regulations and are presumptively invalid.“° A

governmental prohibition that regulates speech on the basis of

the particular views or biases that the speaker expresses about

a topic is termed a viewpoint regulation and is likewise

presumptively invalid, as ‘an egregious form of content dis-

crimination.”

The antidiscrimination/nonharassment policy at issue here

is both a content-based regulation and an infringement on one

speaker’s viewpoint. It is based on content because it pro-

hibits the use of particular words for their communicative

impact — their potential to offend the person who hears it.” It

is based on viewpoint because it prohibits the utterance of

“natural family, marriage, and family values,” words that the

City claims convey and embody a particular bias against

same-sex marriage.”

The proper test to determine the validity of the content and

viewpoint-based prohibition on the use of certain words at

issue here is whether the ban is necessary to serve a compel-

*° See Lister v. Defense Logistics Agency (2007) 482 F.Supp. 2d 1003,

1010-1011.

*° Rosenberger v. Rector and Visitors of University of Virginia (1995)

515 U.S. 819, 828 [115 S.Ct. 2510, 132 L.Ed.2d 700].

*! Td. at 829.

* Texas v. Johnson (1989) 491 U.S. 397, 411-412 [109 S.Ct. 2533,

2543-2544, 105. L.Ed.2d 342].

® RAV. v. St. Paul (1992) 505 U.S. 377, 391-393 [112 S.Ct. 2553, 37

L.Ed.2d 669).

ling state interest and narrowly drawn to achieve that end.“

The City claims that the purpose of prohibiting words like

“natural family,” “marriage,” and “family values” and deny-

ing members of the Good News Employee Association equal

access to advertise their club, is to prevent workplace harass-

ment and quell a potentially hostile work environment. As

the Supreme Court held in Cornelius v. NAACP Legal Defense

and Educational Fund, even “the existence of reasonable

grounds for limiting access to a nonpublic forum will not save

a regulation that is in reality a fagade for viewpoint-based

discrimination.”*? Under our system of government, the State

may not prohibit the dissemination of views simply because

they are controversial, distasteful, or disturbing. To sanction

such a prohibition would be a complete repudiation of the

not vindicate its interest in preventing a hostile work environ-

ment by the wholesale exclusion of a religious group’s

viewpoint on a matter of public concern—namely same-sex

marriage—or by permitting public discussion on all but this

one hotly-contested political issue.*’

In addition, the policy adopted by the City of Oakland

prohibits more speech than necessary to promote the govern-

ment’s interest in eradicating invidious employment discrimi-

nation. To establish employment discrimination by verbal

harassment, the employee must show that the workplace is

permeated with discriminatory intimidation, ridicule, and

“ Perry Ed. Assn. v. Perry Local Educators’ Assn. (1983) 460 U.S. 34,

45 [103 S.Ct. 948, 74 L.Ed.2d 794].

‘5 Cornelius v. NAACP Legal Defense and Educational Fund (1985)

473 U.S. 788, 811 [105 S.Ct. 3439, 87 L.Ed.2d 567].

“ Planned Parenthood Shasta-Diablo, Inc. v. Williams (1995) 10

Cal.4th 1009, 1027 (dis. opn. of Kennard, J.)

“’ Police Department of the City of Chicago v. Mosley (1972) 408 U.S.

92 [92 S.Ct. 2286, 33 L.Ed.2d 212].

insult, . . . that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive

working environment.** It is impossible to demonstrate in

advance that any particular workplace speech, let alone use of

such words as “natural family,” “marriage,” and “family

values,” will create a hostile work environment, much less

that it will produce direct, immediate, and irreparable injury.

The mere speculative claim of potential for disruption of the

workplace is an insufficient basis by itself for a limitation of

otherwise protected speech.*? Moreover, if the use of the

bulletin board causes, in fact, the disruption feared by the

City of Oakland officials, the government can simply take

down the board or limit messages to those posted by the

agency itself.

An administrative policy specifically prohibiting use of the

words “natural family,” “marriage,” and “family values” and

not just utterances that actually produce a hostile work

environment, is not narrowly drawn to serve the State’s

compelling interest in eliminating employment discrimina-

tion.” The City of Oakland’s policy is far from being

narrowly tailored to a substantial governmental interest. The

City’s blatant exclusion of only the religious viewpoint on

same-sex marriage from the workplace bulletin boards is

based on the content of message and the opinion of the

“* Harris v. Forklift Systems, Inc. (1993) §10 U.S. 17, 21 [114 S.Ct.

367, 370, 126 L.Ed.2d 295].

*° U.S. v. National Treasury Employees Union (1995) 513 U.S. 454,

476 [115 S.Ct. 1003, 130 L.Ed.2d 964].

* The City of Oakland’s policy goes even one step further. It prohibits

every utterance of an insult, demeaning comment, and derogatory slur in

the workplace based on only the following designations: race, color, relig-

ion, sex, pregnancy, marital status, age, national origin, physical/mental

disability, medical condition, sexual orientation, and military status. Such

a prohibition against any future offensive workplace speech on the basis

of content and viewpoint is invariably and necessarily unconstitutional.

speaker. This example of overt viewpoint discrimination

only fosters and encourages the type of hostile work environ-

ment the City seeks to abolish. _

In the early part of the twentieth Century, American courts

tried to prohibit and punish the dissemination of communist

ideas, but the United States Supreme Court struck down these

decisions with a resounding no. The Ninth Circuit has re-

opened the door to censorship with a resounding yes. The

government is now free to prohibit the expression of ideas it

dislikes and courts can enforce these prohibitions. One of the

truths we hold to be self-evident is that a government that

tells its citizens what they may say will soon be dictating

what they may think. Once again, the citizenry call upon the

highest court in this land to restore their inalienable right to

speak freely without punishment for or suppression of their

personal convictions.

CONCLUSION

There is a growing threat to the very existence of freedom

of speech in the workplace, all in the name of eliminating

unlawful “discrimination.” Lawmakers and courts, at the

state and federal level, like the City of Oakland in the case at

hand, are wrongly usurping to themselves the role of defining

what words and phrases alone create a de facto “hostile work

environment” for the purpose of stating a claim of unlawful

harassment under the Fair Employment and Housing Act.

Reaching far beyond the traditional “workplace violence”

laws that target discrimination based on conduct, regulations

such as the Oakland policy at issue here actually enjoin

the use of specific words or phrases based on the speaker’s

political and/or religious viewpoint. Such policies unreasona-

bly restrict the free speech rights of government employees in

violation of the First Amendment.

Based on all of the foregoing, the Court is urged to grant

the petition for a writ of certiorari to address and resolve

these issues.

Respectfully submitted,