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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007

## Text

FILED
@

No. 06-1619 | SUL 6 2007

K
UEREME COURT, U.S.

IN THE

Supreme Court of the United States

GOoD NEWS EMPLOYEE ASSOCIATION,
REGINA REDERFORD, ROBIN CHRISTY,
Petitioners,
La

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

iV

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

Vv

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

vi
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
© IIS, BE ATG CI GOF) concisnigssvsssncscncssvsvsvnssenscecens 3,4

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.

2

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

3

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

4

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.).

© Bantam Books, Inc v. Sullivan (1963) 372 U.S. 58, 70 [83 S.Ct. 631, 9
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.).

5

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].

© Miller v. California (1973) 413 U.S. 15, 24 [93 S.Ct. 2607, 27
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].

6

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).

7

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.).

8

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).

9

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}.

10

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.

1]

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.

12

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).

13

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
philosophy of the Bill of Rights.“© The City of Oakland may
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].

14

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.

15

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.

16

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,

GARY G. KREEP *

D. COLETTE WILSON

ALLISON K. ARANDA

UNITED STATES JUSTICE
FOUNDATION

932 “D” St., Suite 3

Ramona, California 92065

(760) 788-6624

* Counsel of Record Counsel for Amicus Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0571%3A5. Public record. Not legal advice.