School's anti-picketing policy violated 1st amendment

on strike.jpg

A public school district – anticipating a teachers' strike – adopted policies prohibiting picketing on District property, prohibited strikers from coming on school grounds (even for reasons unrelated to the strike), and prohibited signs and banners at any District facilities without advance written approval. As the 9th Circuit concluded, "The policies were motivated by the strike, and they were formally rescinded shortly after the strike ended."

The teachers' union sued, alleging violation of the 1st amendment and the Oregon constitution. The trial court granted summary judgment for the Union, and the 9th Circuit affirmed. Eagle Point Education Assoc v. Jackson County School Dist (9th Cir 01/26/2018) [PDF].

"Government speech"? – No.

The School District advanced the implausible argument (which the 9th Circuit addressed with a straight face) that its policies were a form of "government speech" by the District itself and thus not subject to the 1st amendment at all. The District's point was that the public would be getting a "garbled" message and would doubt the District's "resolve." The court discussed a couple of US Supreme Court cases, and ended up saying, "No reasonable observer would have misperceived the speech which the district sought to suppress—speech favoring the teachers' side in the strike—as a position taken by the school district itself."

Government property – Non-public forum

The court then turned to the more complex analysis of government restriction of speech on government-owned property that is a non-public forum. (Government property is generally divided into three categories: (a) public, (b) designated or limited public, and (c) non-public.) The court gave the District the benefit of the doubt, and analyzed the case as a non-public forum. As the court put it, "Speech in a non-public forum can be restricted, but the restrictions must be (1) 'reasonable' and (2) 'not an effort to suppress expression merely because public officials oppose the speaker's view.'"

Reasonable restrictions on speech? – No.

Here the restrictions were not reasonable. There was no evidence that the policies were actually needed to prevent disruption of the school.

(1) "[S]chool administrators had no indication of potential violence, disruption, or other potential harm to students or teachers or members of the public, which might have justified their actions."

(2) There was no showing that District officials actually "anticipated that signs or banners would cause substantial disruption of or material interference with school activities."

(3) The District failed to show "how signs and banners would have a harmful impact on actual operation of the schools [or] how the blanket ban would alleviate such harms."

Viewpoint neutral restrictions? – No.

The policies were not viewpoint neutral. They were enacted because of the impending strike and were rescinded after the strike ended. The court said:

"[T]he District sought specifically to restrict pro-Union speech. As the District itself argued to us, it wanted to avoid sending 'a garbled message to parents and taxpayers by allowing the striking teachers access to school property to picket, chant, and display … signs and banners denouncing the District's official policy.' The District policies were directly aimed at stifling disagreement with the District's position."

Oregon constitution

The court held that the District also violated the Oregon constitution. The 9th Circuit applied Oregon cases which have said that regulations restricting access to government property must be "content-neutral regulations of speech that are imposed for reasons of public safety, aesthetics, or other important public purposes," and the District's policies were not content-neutral and were "imposed because the District opposed the Union’s position."

All of this cost the District $100 in nominal damages plus $150,000 for the plaintiffs' attorney fees and costs, plus its own attorney fees.