September 13, 2022 | Written by Travis Vernier
Since the Supreme Court's infamous decision in Garcetti v. Ceballos, most public employees have had little success filing free speech claims in federal court. Garcetti regulates the speech of on-duty government employees. A divided Supreme Court found that if speech is "ordinarily within the job duties" of the public employee, it has no constitutional protection under the First Amendment.
But earlier this summer, a critical Surpeme Court decision involving a part-time high school football coach cracked the door open on free speech claims made by public employees.
Coach Joseph Kennedy, a Christian, routinely prayed at the 50-yeard line after games. Over time, his prayer routine evolved into postgame talks, where he delivered speeches with explicit religious references. Eventually, the school district received complaints from self-proclaimed Satanists, who asked to conduct postgame ceremonies. The district folded. It decided to prohibit all postgame ceremonies and asked Coach Kennedy to stop. Coach Kennedy refused and instead rallied local and national television, print media, and social media to support him. Citing the turmoil created by Coach Kennedy's media appearances, the high coach recommended that Kennedy not be rehired.
Kennedy sued the school district for violating his rights under the First Amendment and Title VII of the Civil Rights Act of 1964. Kennedy was a public employee who was on duty at the time of his prayers, which meant he had the burden, under the Garcetti rule, to prove that his prayers and speeches did not arise out of his job duties.
In a 6-3 decision, the Surpeme Court found that Kennedy was not engaged in speech ordinarily within the scope of his coaching duties. He did not speak under government policy and was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the district paid him to produce as a coach.
The high court said, "Simply put, Kennedy's prayers did not owe their existence to his responsibilities as a public employee. The timing and circumstances of Kennedy's prayers – during the postgame period when coaches were free to attend briefly to personal matters and students were engaged in other activities – confirm that Kennedy did not offer his prayers while acting within the scope of his duties as a coach."
You might be asking, what does any of this have to do with Garcetti? The answer is this: Bremerton raises a unique set of questions for government employees, including first responders. Under Bremerton, what results if a first responder makes comments on duty, but those comments fall outside the scope of his employment? Does the first responder have a viable First Amendment claim against the government if he is disciplined for those comments? For example, what would result if an on-duty firefighter posts something on Facebook that leadership within the agency finds offensive? Or, what about the uniformed on-duty officer who, during his meal break, joins a protest in favor of the Second Amendment at the state capitol? Or, what about the officer who wears a Crescent and Star, a symbol of Islam, violating the department's uniform standards for the addition of unauthorized pins and brass?
Time will tell whether Bremerton becomes a life-saver for those swimming in the treacherous waters of free speech rights within the public employment context. Perhaps the Surpeme Court limits Bremerton to only religious speech. But in the meantime, expect to see public safety labor attorneys bring claims challenging the government's speech rules in the workplace under Bremerton.
Travis Vernier is a founding partner at Bennett Vernier, an Oklahoma law firm dedicated to defending first responders.
