880 F.3d 1097
9th Cir.2018Background
- In May 2012, Jackson County School District adopted three strike-era policies: a blanket ban on picketing on district-owned/leased property (and barring picketers from entering facilities), a prohibition on signs/banners without superintendent approval, and a check-out letter requiring striking employees not enter school property.
- The District leased a vacant lot previously used by the Union and then denied the Union access; security enforced the new bans around school grounds, at times including parking lots and adjacent gravel areas.
- A union, its president (Carrell), and a student (Boyer) sued under 42 U.S.C. § 1983 and the Oregon Constitution alleging First Amendment violations; the district court granted summary judgment for plaintiffs, awarded nominal damages and attorneys’ fees.
- The District appealed principally arguing the policies constituted government speech and thus were not constrained by the Free Speech Clause; it also defended reasonableness and forum status.
- The Ninth Circuit affirmed: it held the policies were not government speech, applied forum analysis (assumed non-public forum), and found the restrictions neither reasonable nor viewpoint neutral; it also affirmed the Oregon Constitution ruling and the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the District policies were government speech (and thus exempt from First Amendment forum analysis) | Policies suppressed private pro-strike speech and were not statements by the District | Policies expressed the District’s official position and showed its resolve; thus government-speech doctrine applies | Not government speech; a reasonable observer would not view strikers’ messages as the District’s own, so forum analysis applies |
| Whether the policies were permissible restrictions in a non-public forum (reasonable) | Policies were overbroad and unnecessary to prevent disruption | District asserted a legitimate interest in preserving school operations and property control | Not reasonable: no evidence of anticipated disruption; bans were undifferentiated and overbroad |
| Whether the policies were viewpoint neutral | Policies were enacted to suppress pro-Union viewpoint tied to the impending strike | District claimed neutral safety/operational purpose to preserve educational mission | Not viewpoint neutral — motivating purpose was disagreement with union message, so viewpoint discrimination violated First Amendment |
| Whether Oregon Constitution claims were barred by ERB jurisdiction and/or violated state free-speech protections | State free-speech claim independent of unfair labor practice framework; policies targeted content/viewpoint | District argued ERB exclusive jurisdiction and that educational land-use permits broader restrictions | ERB did not have exclusive jurisdiction over these constitutional claims; District violated Oregon Const. art I, §8 (content/viewpoint-based restriction) |
Key Cases Cited
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (permanent monuments on public property typically represent government speech)
- Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015) (specialty license plates convey government speech)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (forum analysis framework for speech on government property)
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (students and teachers retain First Amendment rights at school)
- Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978) (local government liable for constitutional deprivations caused by official policy or custom)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (scope of fora and standards for restrictions in non-public fora)
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (distinguishing government-sponsored speech from compelled or permitted private speech)
- Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) (undifferentiated fear of disturbance insufficient to justify speech restriction)
- United States v. Nat’l Treasury Emps. Union, 513 U.S. 454 (1995) (government must have reasonable grounds to fear disruption to restrict speech)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based speech regulations are subject to strict scrutiny under the First Amendment)