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The U.S. Supreme Court has agreed to hear a First Amendment free speech and religious freedom case with potential major implications for all public employers.

In Kennedy v. Bremerton School District, the Court will determine whether a public school district unconstitutionally violated a former high school football coachs First Amendment free speech and free exercise rights when it suspended his employment after he defied the districts repeated directives to stop praying at mid-field following his teams games.

The case involves multiple significant First Amendment questions for public employers, including the scope of what constitutes government speech and whether public employers may rely on the Establishment Clause to prohibit otherwise private and protected religious expression. The Courts decision to hear the case, particularly with its conservative super-majority, portends the Court broadly curtailing public employers ability to restrict religious expression in the workplace.

Kennedy v. Bremerton School District

A. Factual background

As we discussed in our previous commentary, Kennedy, a practicing Christian, began his career as a football coach in 2008 at Bremerton High School, a public school in Washington state. He initially instituted a practice of praying alone at mid-field that evolved to include simple prayers with student athletes and finally, to longer motivational speeches at midfield after the games with religious content.

In September 2015, the school district ordered Kennedy to stop praying so that the district did not violate the Establishment Clause, and it offered him several accommodations to enable him to pray privately. Kennedy declined these accommodations, insisting that his religious activities must take place at mid-field after the game in full public view. He took to multiple social media sites to announce publicly his non-compliance. Thereafter, the district placed Kennedy on administrative leave, and he was not recommended for re-hire during the annual renewal process.

Kennedy did not apply for a 2016 coaching position. In August 2016, Kennedy sued the school district in federal district court, alleging the district violated his rights under the First Amendment and Title VII, and sought injunctive relief in the form of reinstatement.

B. SCOTUS declines to hear Kennedys bid for injunctive relief

The case has a long procedural history. Most notably, in 2019, the Supreme Court previously declined to hear Kennedys appeal of the Ninth Circuits refusal to grant him injunctive relief in the form of reinstatement during the pendency of his lawsuit. Justice Alito, however, wrote a statement regarding that denial, joined by Justices Thomas, Gorsuch and Kavanaugh, in which he criticized the Ninth Circuit, saying its understanding of the free speech rights of public-school teachers was both troubling and something that may justify review by the Court in the future.

C. The Ninth Circuit sides with school district, affirms dismissal of case

On the merits, in March 2020, the district court granted the school districts motion for summary judgment, holding that the risk of constitutional liability associated with Kennedys religious conduct was the sole reason the district ultimately suspended him. The lower court further held that the school districts actions were justified due to the risk of an Establishment Clause violation if the school district allowed Kennedy to continue with his religious conduct.

The Ninth Circuit affirmed in March 2021. As to Kennedys free speech claim, the Ninth Circuit held that Kennedys prayers occurred within the scope of his official duties as a public employee and, therefore, under Supreme Court precedent, the First Amendment did not protect his speech. The Ninth Circuit specifically noted the following facts in support of its ruling:

Taken together, the Ninth Circuit ruled Kennedys religious conduct occurred in the course of his public duties. The Ninth Circuit further held that the school district had a compelling state interest in avoiding an Establishment Clause violation, therefore justifying regulation of Kennedys speech even if private and protected.

With respect to Kennedys free exercise claim, the Ninth Circuit held that the school district had the same compelling state interest in avoiding a violation of the Establishment Clause, therefore satisfying the onerous strict scrutiny standard to justify the school districts admitted impingement on Kennedys free exercise rights. Specifically, in large part because Kennedy refused any accommodations from the school district that would allow it to avoid violating the Establishment Clause, the court ruled the districts directives to stop praying at mid-field were narrowly tailored to the compelling state interest of avoiding a violation of the Establishment Clause.

What this means for you

All public employers should pay close attention to how the Court rules in Kennedy. The case involves multiple significant First Amendment questions with potential larger implications for all public employers.

The first question involves the scope of what constitutes government speech, i.e., whether Kennedys religious speech came as a public employee, with no First Amendment protection, or as a private citizen, with ordinary First Amendment protections. In general, determining whether a public employees speech is protected under the First Amendment requires a fact-intensive balancing test, with particular focus on whether the speech occurred within the scope of the public employees official duties. The Courts decision to accept this case suggests that at least four, and likely more, members of the Courts conservative super-majority want to ensure that public employers understand and respect their employees rights to religious expression in the workplace. The Court may take this opportunity to broaden how and why quasi-public speech in the workplace like Kennedys prayers are protected under the First Amendment. At minimum, public employers should expect the Court to clarify when a public employees speech is private and, therefore, subject to ordinary First Amendment protection.

The second question confronting the Court is whether, assuming Kennedys speech is private and protected, the Establishment Clause nonetheless compels public schools to prohibit such religious expression. This inquiry will require the Court to weigh the relationship between the Establishment Clause, the Free Exercise Clause and the Free Speech Clause. The Court has trended towards affirming greater (i.e., ordinary) First Amendment free speech protection in recent terms. The Court also seems unlikely to relegate an individuals free exercise rights to the governments interest in avoiding an Establishment Clause violation except in extremely narrow circumstances. At minimum, public employers should expect the Court to clarify the circumstances when the Establishment Clause compels public employers to act against their employees faith that may otherwise constitute religious discrimination.

It is unclear whether the Court will answer these questions narrowly or provide broader guidance. Justice Alitos earlier statement, joined by three conservative justices, suggests the Courts new conservative supermajority is poised to curtail public employers ability to restrict religious expression in the workplace more broadly than just on the facts of Kennedys case.

Contact us

If you have questions about the potential implications of this case on your public workplace, please contact John Borkowski, Aleks Rushing, Sam Mitchell or your Husch Blackwell attorney.

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Legal Alert | Scotus to Assess the Scope of Public Employers' First Amendment Obligations - Husch Blackwell

Its not often that sports and politics collide. But that happened last week, when the Oakwood Adventist Academy (OAA) varsity basketball team forfeited a game that could have put them in competition for the state championship.

The decision by OAA, precipitated by an Alabama High School Athletic Association (AHSAA) ruling, drew the attention of Gov. Kay Ivey. And the governor has sided with the OAA basketball team not the association.

OAA, based in Huntsville, is affiliated with the Seventh-day Adventist Church, a Christian denomination I know something about because Ive been an active member since I was 7. We SDAs are known for a few things that fall outside of mainstream Christian doctrines and practices.

For example, we are taught not to eat pork, shrimp and other animal foods described in the Old Testament of the Bible as unclean. Our doctrines also teach against drinking alcohol and smoking cigarettes.

But most notably, we go to church on Saturdays, honoring what many call the Jewish Sabbath as a weekly holy day meaning sundown Friday to sundown Saturday.

Historically, for most SDAs, that has meant no secular activities during those 24 hours. No work, except for those who work for the church or are first responders (medical professionals, police officers, fire fighters, etc.). No play, meaning no secular music concerts, movies, television shows, and other activities that can be indulged in during the other six days.

No play also includes no competitive sports.

Notice the qualifiers I used: historically and most. Some SDAs deviate, based on preference or principle. But most still adhere to the basic idea of Sabbath-keeping.

So when the OAA basketball team learned its game was scheduled for this past Saturday at 4:30 p.m. before sundown the team decided to put its faith over a chance to be one of Alabamas best high school teams. That got Iveys attention especially, perhaps, because there was another option.

Not for the OAA team. But for the AHSAA.

The AHSAA could have allowed the team and its opponent to swap schedules with the teams slotted for 7:30 p.m. According to my OAA sources, the affected teams were willing to do just that. So why wasnt the AHSAA? Its representatives wont say.

Apparently, Gov. Ivey was wondering the same thing. So she wrote the AHSAA a letter.

I hope youll understand why I was most disturbed to read about Oakwoods alleged treatment at the AHSAAs basketball tournament, the governor wrote. This episode raises some very pressing questions, not only for me but for public officials and citizens across our great State.

Among other things, Ivey asked who at the AHSAA was responsible for this decision and if it violated any AHSAA policy. She also wants to know this circumstance can be prevented from happening again.

The governor seems to want accountability and change. Well see if she gets what she wants.

Ivey also wrote a letter to the OAA team, expressing her support and inviting them to meet with her at the state capitol. My cynical side says that Ivey wants a photo op with young black men affiliated with a historically black institution (Oakwood University, my alma mater).

But I also recognized that this may be about more than politics for Ivey. Of the 2,930 voters who cast a ballot at the Oakwood University precinct in 2020, 83 percent voted a straight Democratic ticket. President Biden beat Donald Trump by 67 percent. Former Democratic Senator Doug Jones beat current Republican Senator Tommy Tuberville by 64 percent.

No matter how magnanimous and supportive Ivey is of the OAA team, shes not likely to get votes from that precinct or most black voters. In fact, I suspect most will respond to her efforts the way she does to Biden in one of her current commercials: Bless her heart. And then they will vote for Democrats anyway.

Either way, whether because of politics or principle, I like what Ivey has done. Not because Im an SDA, but because I believe in the First Amendment and in a society that seeks to accommodate those of all faiths and no faith.

Gov. Ivey and I dont agree on most things. But it appears we do agree on this.

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Opinion | Oakwood Adventist Academy basketball is a real First Amendment case - alreporter.com

Most people know, or think they know, that the U.S. Constitution guarantees free speech.

Well, yes and no. What the First Amendment to the Constitution actually says is this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Congress shall make no law ... means that the government cannot criminalize speech, and we all know that there are exceptions, the most well known being falsely shouting Fire! where that would create a panic and possible loss of life.

We have laws criminalizing lying when one has sworn to tell the truth (perjury), and a somewhat obscure law making it a crime to lie to the FBI. I didnt even know about this one until 2002 Louisiana state Insurance Commissioner James Brown was charged and convicted for it. So if the FBI ever wants to talk to you, about anything, either decline or have a lawyer present should anything you tell them turn out to be untrue.

There is also a long history of cases in which the government has tried to limit political speech. In recent years, rarely has the government prevailed, and if it did, it was later overturned.

As Supreme Court Justice Hugo Black stated in Mills v. State of Alabama, Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.

As for dangerous political speech, in Schenck v. U.S., the court articulated the clear and present danger standard, but in Brandenburg v. Ohio, the court modified it to speech advocating violence that was imminent and probable for speech to be curtailed.

This constitutional provision does not stop private actors from stifling speech. The biggest offenders are employers, who often place restrictions on what you can say about the company, at risk of firing. Bad news, but no state action, so no violation of free speech in the constitutional sense, unless, of course, you work for the government. Then you may be covered.

The difference bears on the current kerfuffle regarding free speech over Spotify podcaster Joe Rogan, who has hosted people who give out incorrect medical information on COVID-19, which, if believed, could result in deaths. Some musicians whose music is on Spotify asked that their work be taken off.

Some people screamed, Censorship! Others said, Good for them! Cries of Free speech! rang on both sides.

This is not a free speech issue. The podcaster has not been arrested. Nothing he did violates the law. The musicians who object are exercising their rights to not be associated with his content.

This brings me back to what free speech means. If you believe the First Amendment does not apply to lies, well, yes, mostly it does. And if you argue that Rogans right to free speech is being curtailed, no, it is not. We are allowed to speak as we please, even if what we say isnt true, but we are not immunized from the consequences of what we say.

The late writer Christopher Hitchens said in his memoir, Hitch 22, that one of the main reasons he decided to become an American citizen was his respect for the protections of speech, and the press, in our First Amendment, protections not explicitly provided in his native Great Britain.

Lets not misconstrue what these great rights mean.

Now retired, J. Michael Malec of Albany formerly worked as a legislative lobbyist for the American Civil Liberties Union in Louisiana.

Read more:
Commentary: What the First Amendment does and what it doesn't do - Times Union

Arizona state Rep. John Kavanagh knows that being a cop is hard. He spent 20 years as a Port Authority Police Officer before decamping for sunnier climes, so hes always down to back the blue. And so hes sponsored a bill that would make cops lives easier AHEM promote public safety by banning bystanders from recording police from anything closer than eight feet.

Under HB2319 (as amended) which passed out of the Arizona House Appropriations Committee yesterday 7-5 on party lines, it would be illegal to knowingly make a video recording of law enforcement activity, including the handling of an emotionally disturbed person, if the person making the video recording does not have the permission of a law enforcement officer and is within eight feet of where the law enforcement activity is occurring.

The law would not affect the right of the person interacting directly with law enforcement to record, and violation would be a mere petty offense, unless the recorder fails to comply with a verbal warning.

It distracts the cop against the person they are making enforcement against, Kavanagh told the Arizona Mirror, recounting a time he had lost focusduring an arrest and failed to see the suspect dump a large quantity of drugs.

Evidence can be lost, the cop can be assaulted, Kavanagh said, without specifying exactly how a citizen holding up an iPhone is going to cause a cop to be assaulted.

I think you get a better picture from 15 feet away, he added. You get the full scene.

As the Electronic Freedom Foundation points out,the First, Third,Fifth,Seventh,Eleventh Circuits have upheld the right to record police at work, as has the Ninth Circuit which affirmed the right to film police 26 years ago. But Kavanagh has an answer for that, and it is abortion.

Well, obviously.

See, the Supreme Court upheld an eight-foot buffer zone for abortion clinic protestors in 2000, so obviously that means that Arizona can restrict First Amendment activity to stop cops from getting distracted.

I think this fully conforms with constitutionality and weighs officer safety with the citizens right, the publics right, to see law enforcement officers in action, Kavanagh told the AP. And it looks like the state may be about to test that hypothesis, as the law proceeds to the Rules Committee, before heading to the wider chamber for a vote.

Ex-cop lawmaker wants to restrict recording videos of cops [AZ Mirror]House panel OKs revised ban on videotaping police [AP]

Liz Dyelives in Baltimore where she writes about law and politics.

Originally posted here:
Arizona Looks To Protect Cops From That Pesky First Amendment - Above the Law

Current law requires someone running for the Legislature to file an annual statement of economic interest with the Campaign Finance and Public Disclosure Board.

County commissioners, judges and a public or local official in a metropolitan governmental unit must file one after being seated or accepting employment.

Rep. Steve Drazkowski (R-Mazeppa) thinks lobbyists should have to annually disclose certain financial interests, such as their source of income, business interests, investments and securities, within five days of registration as a lobbyist.

His bill, HF2683, was held over Thursday by the House State Government Finance and Elections Committee for possible omnibus bill inclusion. It has no Senate companion.

Legislators have been required to fill this document out because the voters have a right to know who is making payments to their elected officials. This is done to prevent our public servants from receiving money in unethical ways that could lead to a conflict of interest or corruption, Drazkowski said.

He said similar laws exist elsewhere. For example, Connecticut requires annual detailed information on lobbyist compensation and New York requires bi-monthly filing of compensation paid or owed to a lobbyist.

Everyday Minnesotans do not have the time to go through hundreds of pages of campaign finance documents in an effort to follow the money that is influencing their state. However, requiring lobbyists to fill out a statement of economic interest would give voters a straightforward, easy and streamlined way of seeing who is being compensated, what kind of compensation is being received and whose interests are being represented, Drazkowski said.

Eric Hyland has been a registered lobbyist and member of the Minnesota Government Relations Council for 25 years, serving as its president in 2010. Simply inappropriate and unnecessary is how he describes the bill.

Legislators and other public officials must file statements because they have, by election or appointment, been bestowed the responsibility to protect the public interest and public funds, he said. The purpose of these filings is obvious: To create public confidence that the people actually making decisions on behalf of the public are doing so without financial gain. Lobbyists are not public officials; we do not make decisions on behalf of the public. Lobbyists are private individuals who represent clients who are exercising their First Amendment constitutional right to petition their government.

Twice a year for each client, lobbyists must file a public disbursement report with the Campaign Finance and Public Disclosure Board showing, in part, they are being compensated by a client. However, Jeff Sigurdson, the boards executive director, said that report does not show whats received from each organization the lobbyist represents.

Lobbyist compensation is reported by the principal on a principals report. But, Sigurdson noted, that number equals all compensation the principal paid to be represented in Minnesota, not a breakdown in compensation paid to individual lobbyists.

Common Cause Minnesota promotes an ethical government working in the public interest. It believes the bill is good start; however, a letter from Executive Director Annastacia Belladonna-Carrera indicates more teeth is needed regarding violations.

Currently someone who fails to submit the Statement of Economic Interest under 10A.09 pays a fine of $1,000. Perhaps including language that speaks to suspending the lobbyist's privileges would be more attuned with actual accountability, otherwise the effects of HF2683 become symbolic at best and does very little to contribute to increased accountability.

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Lobbyists could be required to disclose financial interests each year - Session Daily - Minnesota House of Representatives - Minnesota House of...