In theory, the First Amendment’s Free Speech Clause prohibits government from picking and choosing free speech winners and losers based on the content of a would-be speaker’s message. This important, and foundational, free speech principle took a major hit this week at the Supreme Court. The court’s decision in Kennedy v. Bremerton School District will seriously, perhaps fatally, undermine the notion that all would-be speakers, and all potential messages, have an equal claim.
Coach Joseph Kennedy repeatedly led prayer circles with his public high school student players after varsity games in Bremerton, Washington. He did so despite being ordered not to by his government employer (the Bremerton, Washington school district). Justice Neil Gorsuch’s opinion, for a 6-3 majority, holds that the nation’s public-school officials cannot tell public school teachers to refrain from leading organized prayer with students while on school grounds as part of previously religiously neutral extracurricular activities.
The crux of the majority’s argument is that Kennedy’s speech was “private” speech about a matter of public concern—completely independent of his official duties as a public high school employee. Photographs included in Justice Sonia Sotomayor’s dissent tell a quite different story—they show scores of players encircling Kennedy while kneeling in prayer on the high school’s football field. Despite this smoking gun evidence, Gorsuch concludes that Kennedy’s “speech was private speech, not government speech” because “[w]hen the prayers occurred [Kennedy] was not engaged in speech ‘ordinarily within the scope’ of his duties as a coach.”
This conclusion is nothing short of bizarre. Kennedy’s job, after all, is to coach the high school’s varsity football team. The prayers in question occurred following the conclusion of the team’s games. Had Kennedy not been at work as the high school’s football coach, he would not have had any right to be where he was—or to have led the players in public prayer at an extracurricular event.
Lower federal and state courts will struggle for years to make sense of the outcome—and to reconcile it with the many precedents that squarely point in the opposite direction from the Kennedy majority’s conclusion.
In one 1986 case, Bethel School District No. 403 v. Fraser, the justices held that “[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.” Why didn’t the Bremerton, Washington school board enjoy the same regulatory authority over deciding whether speech by a school district employee while working at a school event was “inappropriate”? Justice Gorsuch does not provide an answer.
The 2007 case Morse v. Frederick, 551 is even harder to reconcile with Kennedy. In Morse, Joseph Frederick, a Juneau, Alaska, high school student, hoisted aloft a banner reading “BONG HiTS 4 JESUS” as the 2002 Winter Olympics Torch Relay came through town. Deborah Morse, the high school’s principal, tore down Frederick’s banner and then imposed discipline on Frederick for displaying it in the first place (a ten-day suspension).
Chief Justice John Roberts, writing for the majority, framed the relevant question as “whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use” and proceed to conclude “she may.” Thus, a public school district has broad regulatory authority over speech both in the classroom and also at school-sponsored events. What’s more, such decisions are immune from constitutional attack provided that they arguably relate to “legitimate pedagogical concerns.” This is a remarkably forgiving standard of review and one that cannot be reconciled with the new Kennedy standard.
Bremerton’s local school officials reasonably concluded that students, faculty, and the general public might view the Coach Kennedy’s conduct as involuntary school prayer. A student athlete who wanted playing time on the field would need to think long, hard, and carefully about refusing to join the coach’s prayer circle. The practice thus ran a serious risk of coercing students into organized prayer—while participating in an official school event. A superintendent or principal with even a passing knowledge of the Establishment Clause could reasonably have concluded that no student should be coerced into prayer as a condition of participating on the high school’s football team.
If a student’s speech rights constitutionally can be curtailed in an extracurricular context, it’s utterly inexplicable why public school authorities cannot also curtail a government employee’s speech—while the employee is on school property and effectively during an official school event.
Indeed, when public school teachers have attempted to assert claims of academic freedom in the lower federal courts, these claims have been resoundingly rejected. Judge Frank Easterbrook, of the U.S. Court of Appeals for the 7th Circuit, has gone so far as to say that high school teachers don’t have any speech rights at all while on the clock because “expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary.”* In his view, a school district “does not ‘regulate’ teachers’ speech so much as it hires that speech.” Not in Kennedy’s case.
The Easterbrook approach is certainly open to question—teaching, even in a public high school, involves bringing to bear informed expertise of the kind that academic freedom under the First Amendment arguably should protect. Judge Frank M. Johnson, Jr., for example, held that a Montgomery, Alabama public school teacher possessed some autonomy over the books selected for a high school English class. However, Johnson’s decision in Parducci v. Rutland is very much an outlier—the exception that proves the more general rule that a public school teacher’s on-the-job speech does not enjoy much, if any, First Amendment protection.
Accordingly, in many important ways, speech associated with public education constitutes “government speech” and the government may decide what messages it will—and will not—disseminate via the curriculum. Under the First Amendment rules generally governing government speech and speech by government employees in the workplace, public school teachers have no claim to academic freedom (unlike professors at state-run colleges and universities).
After Kennedy, one must ask whether all of these rules go out the window if a public-school teacher invokes a religious basis for her speech. In other words, could a public-school teacher in Florida, which has enacted notorious anti-CRT and “don’t say gay” statutes applicable to public school teachers, talk about racial oppression, or same-sex couples, on school grounds while working provided that she couches the speech as private “prayer,” or as merely being motivated by sincere religious belief?
Gorsuch argues that leading the prayer was not within the official job duties of Coach Kennedy—but surely being present at the football game and coaching the team, start to finish, were squarely within his official duties. This being so, the school district should have enjoyed broad regulatory authority over his actions while he was performing his official duties. The Kennedy decision thus cuts a very large hole in the existing jurisprudence that governs the ability of a public-school board to oversee a curriculum—if a teacher wishes to proselytize while on the job, the Free Exercise Clause and the First Amendment privilege the government employee’s autonomy claim over the government employer’s invocation of a managerial necessity to control how the school operates.
It’s patently obvious that the Supreme Court’s school speech decisions are now on a collision course with each other. The speech rights of students and school employees alike at school-sponsored events simply cannot turn on the content of the message that they wish to propagate if the First Amendment’s Free Speech Clause requires the government to respect content and viewpoint neutrality when it regulates speech. If Coach Kennedy is free to pray while on the playing field, his players should be equally free, unlike Matthew Fraser in the 1980s, to engage in speech promoting erotic scatology as part of a school event. So too a future Joseph Frederick should be free to wield a “RastasLuvBongHits4Jesus” banner while at an extracurricular event.
Since the Warren Court’s landmark First Amendment decisions in Sullivan and Brandenburg, the central premise of the free speech project has been that government has no business picking free speech winners and losers based on a would-be speaker’s message. This approach best safeguards the marketplace of political ideas from distortion through censorship. The justices should have adhered to this tried and tested approach because it places all would-be speakers on exactly the same First Amendment footing.
It also bears noting that there’s no real question about Joseph Kennedy’s right to pray on his own time while off the clock—the salient constitutional question is whether Kennedy can hijack the local high school football field, and games played on that field, for organized student prayer when the elected school board, charged with overseeing the curriculum, objects to his actions on establishment clause grounds.
In sum, the implications flowing from Kennedy are stark and bad. The Supreme Court is essentially distorting the marketplace of ideas by giving conventional religious speech a leg up over all other kinds of speech—including both secular speech, speech hostile to religion, and potentially ostensibly religious speech that the court’s conservative majority might find objectionable. This turns the First Amendment on its head.
It’s quite impossible to justify treating student Joseph Morse’s right to unfurl his “BONG HiTS 4 JESUS” banner differently than coach Joseph Kennedy’s after-game prayers under a First Amendment that prohibits government censorship of speech based on the content or viewpoint of the speaker’s message. Indeed, on the facts of Kennedy, the school district arguably has a constitutionally powerful justification for regulating a coach’s on-campus speech—respect for the establishment clause and avoiding coercing public school students into prayer. This interest is certainly no less weighty than any interest Principal Morse had in regulating Frederick’s off-campus nonsense speech, with its own religious implication.
Under the Supreme Court’s unfortunate Kennedy decision, and to paraphrase George Orwell’s prescient line from Animal Farm, “all [speakers] are equal, but some [speakers] are more equal than others.” This just isn’t how the First Amendment’s free speech clause is supposed to work.