First Amendment Issues in Regulation of Speech in Public Meetings

What is going on with the stories of folks being arrested for speaking up in public meetings to oppose data centers? Don’t these people have First Amendment protections? And how can it be that in some meetings, people seem to be able to have volcanic meltdowns at the podium or are very playful and subversive in the style of their comments and yet are allowed to keep speaking, while other people get shut down or arrested for doing much less?

There is a whole range of expression and conduct that can occur in public meetings, and there are indeed First Amendment protections that apply in this sphere, but there are nuances to this area of the law because of the way speech and conduct blur together. The speech itself is generally subject to First Amendment protections, but regulation of many aspects of the “manner” in which a person delivers their comments can erect some fairly strong limitations around public comment periods without necessarily violating the law.

Let’s start with the basics: public meetings of government agencies are described as limited public forums. They are different from a park or a street, where any random person can stand around speaking to the public, in that there are usually designated periods for the public to speak, but the agency usually also has other business to conduct, so these meetings are not only a stage for members of the public to engage in expression. Whether public comment is allowed at all is typically a function of local or state law, but at least in California, the Brown Act normally requires public periods in public meetings.

In these limited public forums, the First Amendment prohibits the government from punishing a speaker for the content of their speech. Baca v. Moreno Valley Unified Sch. Dist, 936 F.Supp. 719 (C.D.Cal. 1996). In Baca, for example, a regulation that prohibited criticism of a school district or its employees during a public comment period was struck down as content-based restriction on speech.

Virtually universal features of public comment periods are a time limit for individual speakers and a designated period for public comment that is separate from the rest of the business of the meeting, and enforcing those limits generally does not implicate the First Amendment.  Ribakoff v. City of Long Beach, 27 Cal.App.5th 150, 177 (2018); Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 271 (9th Cir. 1995). One interesting wrinkle on this point comes from Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010), where the city of Santa Cruz argued that members of the public do not “have any First Amendment rights at all once the public comment period has concluded,” a proposition the Court of Appeals rejected. 629 F.3d at 975. It was at least possible, therefore, that the City engaged in viewpoint discrimination by ejecting a member of the public for executing a silent Nazi salute after the public comment period was over. Id. at 976.

Going off-topic of whatever the agenda items are can also be prohibited without running afoul of the First Amendment, as long as that restriction is applied in a content-neutral manner. See Kindt, 67 F.3d at 271; Darden v. LaFrance, 3:26-cv-00053-SLG (D.Alaska March 16, 2026), 2026 U.S. Dist. LEXIS 53238 at * 15-16. The work of enforcing this boundary is vulnerable to abuse, however, because members of a board may easily decide that matters are “off topic” merely because they find them disagreeable or personally offensive. See Dowd v. City of L.A., CV 09-06731 DDP (SSx) (C.D.Cal. Aug. 7, 2013) 2013 U.S. Dist. LEXIS 111435 at * 58 (“in some instances, the City's determination that certain comments are not on topic results in a limitation of political speech”).

In Dowd, a speaker before the Los Angeles City Council was shut down for ostensibly being “off topic” after he accused a specific councilman of being a “criminal,” but the District Court concluded that "the discussion of a councilman's alleged criminal activities is relevant to a discussion of funding that the City intends to give to that councilman's District. Indeed, this incident is exemplary of why it is unconstitutional to restrict speakers from making personal attacks in City Council meetings; it chills speech critical of elected officials, which is speech at the heart of the First Amendment.” 2013 U.S. Dist. LEXIS 111435 at * 59. (Incidentally, this is an area where AI-driven textual analysis could be quite powerful in evaluating what degree of “off-topicness” is generally tolerated in a given meeting and whether there are content-based motivations for cutting off certain types of remarks but not others.)

Defamation, which involves making a false statement of what appears to be a fact that has a tendency to harm a person’s reputation (along with libel, which is the same thing in writing), is not covered under the First Amendment. USA Techs., Inc. v. Doe, 713 F. Supp. 2d 901, 906 (N.D. Cal. 2010). So while members of the public can stand up in public meetings and express the opinion that government figures are “grossly corrupt” or “incompetent” or “real idiots” or a “fucking racist pig” (as in the Acosta case cited below), that is different from saying “Councilman Smith molests children at 2 p.m. every Wednesday,” because the latter statement would appear to most listeners to be a statement of fact.

If the subject of a remark is a public figure, which is often the case in public meetings, then to be defamatory a statement must be made with “actual malice,” under the standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which requires showing the speaker knows the statement to be false or has serious doubts about its truth. This demanding Sullivan standard can apply even to statements made about members of fairly obscure public boards (such as zoning boards, and so on). If the subject of a defamatory remark has nothing to do with the public function of the board, then there is at least a theoretical possibility that statements may not be subject to Sullivan, but in practice there is a very broad range of factors that are interpreted as bearing on a public figure’s fitness to serve.

What if the content of the speech includes profanity or slurs or so-called “hate speech”? The Los Angeles City Council notably enacted an “offensive words” ban in 2025, which purports to prohibit the “N word” and the “C word” in public meetings and drew immediate scrutiny from First Amendment advocates, because this is obviously a content-based restriction and it is not apparently narrowly tailored to advance the government’s legitimate aims.

One might say: what possible legitimate aim could ever be served by using a slur in a public meeting, particularly where doing so might be extremely uncomfortable for the recipient of such speech? But the general idea of the law in this area is that, absent actual disruption, “one man’s vulgarity is another’s lyric.” Cohen v. California, 403 U.S. 15, 25 (1971). Moreover, as Cohen emphasized, the point of using certain words is not merely that they convey a literal meaning but also that they communicate “otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force.” 403 U.S. at 26. And while many reasonable people do not wish to convey emotions using slurs, that doesn’t mean that government can, consistent with the First Amendment, restrict the speech of those who feel differently. “The point of all speech protection . . . is to shield just those choices of content that in someone's eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995). (Note that profanity is not the same thing as obscenity for First Amendment purposes. “Obscenity” is not protected under the First Amendment, but the idea of “obscenity” in this context refers not to obnoxious language but rather to depictions of hardcore pornography, which are not normally going to be at issue — one hopes — in a public meeting. See Jenkins v. Georgia, 418 U.S. 153 (1974).)

The rule is not different for whatever one might consider “hate speech”: this term has no special significance under the First Amendment, and there is not a carveout of its protections even for very ugly and “hateful” language. Notably, some Ninth Circuit judges have suggested that hate speech should, in fact, be treated differently (at least in the context of schools, which have a more restrictive approach to this whole area), but this is not the majority view, and of course there is not universal agreement about exactly what speech is or is not “hateful.” See Chen v. Albany Unified Sch. Dist., 56 F.4th 708, 727 (9th Cir. 2022) (Gould, J., concurring).

In a similar vein, a general “decorum” or “civility” requirement for participating in a public meeting is likely to be unconstitutionally vague where it is supposed to require some sort of amorphous “good behavior” rather than being oriented toward actual disruption of the meeting. Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013).

On the other hand, the extremely narrow category of fighting words — which are words that are so provocative that they might imminently cause the hearer to engage in violence in reaction — does not receive First Amendment protection. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). But this category is essentially never recognized as existing in the real world of contemporary times, and particularly not in the context of public meetings, because our system of government takes for granted that part of the role of public servants, for better or for worse, is to face the slings and arrows of public opinion.

The category of true threats — i.e., words that convey an serious intent to commit violence against the listener — is also excluded from First Amendment protection, and this is an area where our contemporary overheated rhetorical standards can easily cause speakers to go astray. Counterman v. Colorado, 600 U.S. 66, 69 (2023).

Can the speaker turn around and address the public or wander away from the podium? Agencies often have a requirement that speakers “address the chair” or “address the board,” and these restrictions are probably legal as long as they are applied in a content-neutral manner (though there is very little law on point). Here again, there is potential for abuse and/or inconsistent enforcement based on viewpoint.

What about wearing badges and buttons or holding up signs in such meetings (say “Justice for so and so” or “Defund the police”)? There is some authority suggesting public agencies can probably categorically ban signs, assuming the ban is content-neutral. Tyler v. City of Kingston, 74 F.4th 57, 59 (2d Cir. 2023) (upholding sign ban in Common Council meeting). Buttons seems like a closer call, and the law is not crystal clear on that area, at least in the Ninth Circuit.

What about speaking anonymously or under a pseudonym? The First Amendment is said to protect the right to speak anonymously. Watchtower Bible & Tract Soc'y of New York v. Village of Stratton, 536 U.S. 150, 166-67, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995). However, that rule derives from written communication, whereas it is less clear that there is a right to speak anonymously at a public meeting. And among the recent instances of people being arrested related to commentary on data centers is an instance of a man getting kicked out of a meeting in Illinois merely for describing himself as a “concerned citizen,” and then being rather obviously falsely arrested for nonexistent “resisting.” And yet, in some cities, an individual can even make public comment while masked and using a pseudonym, which certainly seemed funny and clever when the speaker was “Darth Vader” criticizing Flock cameras, as shown in the pictures above, but might not seem quite so funny if the speaker were wearing, say, a mask of Hitler and making personal attacks on board members. There is currently litigation going on against the city of Nashua, New Hampshire around exactly this question of whether the First Amendment right to speak anonymously protects anonymous participation in public comment. This is also going to be a question that is complicated by the fact that many public meetings are now livestreamed with opportunities made for persons to comment from the online world, where speaking under pseudonymity or anonymity are more common.

Legal questions aside, it is also worth remembering is that it is bad to be a jerk, even when speaking to persons with whom one disagrees strongly, that the totality of reality is more complex than slogan-and-bumpersticker-type thought typically captures, and that it is not always a barrel of laughs to be a public servant. So the mere fact that the law may permit certain types of things to be said is not necessarily a good reason to say those things in the most pointed way possible. As Justice Frankfurter wrote back in 1944, the First Amendment guarantees us “the freedom to speak foolishly and without moderation.” Baumgartner v. United States, 322 U.S. 665, 673-674 (1944). But hopefully we can also exercise the good judgment to do otherwise.

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Legal Claims Related to Prisoner Mail

Prisoners have a legal right to receive mail, but the law views that right as being balanced against prisons’ needs for security. When prisons unreasonably deprive prisoners of mail, it can lead to causes of action under both the First and the Fourteenth Amendment.

The First Amendment-type argument is a tough nut to crack from the plaintiffs’ point of view: the question courts ask, when evaluating arguments that prison regulation of mail impinges on First Amendment rights, is merely whether the regulation is “reasonably related to legitimate penological interests” — which is a normally going to be a tough standard to overcome. Turner v. Safley, 482 U.S. 78, 89 (1987). Moreover, even if mail is improperly handled, isolated incidents of tampering will normally not be enough to state a claim. See Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (temporary delay or isolated incident of delay of mail does not violate a prisoner's First Amendment rights); see also Davis v. Goord, 320 F.3d 346, 351 (2d. Cir. 2003) (isolated incident of mail tampering usually insufficient to state claim).

The Fourteenth Amendment also creates a layer of procedural protections around mail: "Specifically, an inmate 'has a Fourteenth Amendment due process liberty interest in receiving notice that his incoming mail is being withheld by prison authorities.'" Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002) (quoting Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999)). But "[o]nly if the failure to provide notice was pursuant to prison policy does this constitute a due process violation actionable under § 1983." Id.

Censorship of prison mail is typically evaluated under the First Amendment framework noted above. Thornburgh v. Abott, 490 U.S. 401 (1989).

Prisoners do not have an expectation of privacy in their mail, so the mere fact that prison officials open the mail does not, in itself, raise any sort of Fourth Amendment concerns, as it might in the free world. People v. Manson, 61 Cal.App.3d 102, 152 (1976), cert. den. 430 U.S. 986 [52 L.Ed.2d 382, 97 S.Ct. 1686].)

Legal Mail may be opened and inspected in the presence of the inmate. See Wolff v. McDonnell, 418 U.S. 539, 576-77, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981). However, opening legal mail outside of the inmate’s presence can be the basis for liability, even if it only happens “two or three” times. Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017).

The handling of legal mail also potentially impacts prisoners’ right to access the courts, since inmates’ abilities to respond to legal proceedings often depends on being able to communicate through the mail.

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Ninth Circuit Sees First Amendment Issue Stemming from First Grader's Expression Punished by School

A first grader who was given a talking-to by her school principal and told to apologize after giving a controversial drawing to an African-American classmate had a viable First Amendment retaliation claim, the Ninth Circuit concluded this week in B.B. v. Capistrano United School District.

Drawing Conclusions: The first-grader’s drawing that gave rise to this dispute.

The first grader, B.B., made the drawing after a book was read to the class that had to do with the Black Lives Matter movement. She stated that “she included the phrase ‘any life’ in her drawing because ‘all lives matter,’ ” and she gave it an African-American classmate, M.C. The classmate, who was the only Black child in the class, took the drawing home, where it was found by the classmate’s mother. After the mother raised concerns with the school, the school principal then “took B.B. aside and told her that the drawing was ‘not appropriate,’ she was not to give drawings to other students, and she should apologize to M.C. B.B. thought that [the principal] used the word ‘racist’ to describe the drawing but could not remember for sure.” B.B. may also have been prohibited from going to recess, thought the evidence on this point is unclear.

The District Court had granted the school district’s motion for summary judgment, concluding that the drawing was not protected by the First Amendment. The Ninth Circuit reverses, applying the standard of Tinker v. Des Moines, 393 U.S. 503 (1969), which typically inquires whether expression caused “substantial disruption” at school but also contains language emphasizing that schools can act to protect students’ rights “to be secure and to be let alone.” Applying that “let alone” language, the Ninth Circuit concludes that schools can regulate student speech “when it involves derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” (Internal quotations omitted.)

In this particular case, the appellate panel notes, there is conflicting evidence both as to whether there was a need to protect the student’s right to be let alone (M.C., the Black student, herself apparently did not give much thought to the drawing) and about whether the author of the drawing was in fact “punished” in any way. So the case needs to go to a jury, or at least it is not appropriate for resolution by summary judgment.

This is another case that strikes me as addressing quite a tricky area. Schools are in a difficult position because they can have legal exposure both if they don’t act (and thereby fail to protect a student from what they understand to be bullying) and if they do act. But it’s also tricky because students do not necessarily have a right, even under the “let alone” clause, to have schools insulate them from any perspective that they may find disagreeable or uncomfortable, and in some ways coming to appreciate differing perspectives on challenging issues is part of what an education is intended to deliver. So the question is how, as a practical matter, the “let alone” clause can be applied in a manner that simultaneously respects the intensely personal nature of some types of discussion and the fact that people may reasonably have differing perspectives on contentious issues, even when they have those sorts of personal impacts.

In Harper v. Poway United School District, 445 F.3d 1166 (9th Cir. 2006), which was later vacated as moot by the United States Supreme Court, the Ninth Circuit previously concluded that a school could sanction a student for wearing a t-shirt that disapproved of homosexuality on a day that the school had designated as a “day of silence” intended to "teach tolerance of others, particularly those of a different sexual orientation.” Harper is the source of the language that B.B. cites regarding comments on race, religion, and sexual orientation, and has been invoked by other school district defendants to assert that “California schools have an obligation to protect students from psychological assaults that cause them to question their self worth.” See J.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094 (9th Cir. 2010).

This strikes me as a complicated proposition at best, because controversial subjects may well bear on the “self worth” of a person who is part of a group being discussed: that’s exactly why they are controversial. I am somewhat skeptical that the Ninth Circuit’s interpretation of Tinker’s “let alone” clause as applying to expression on a particular set of subjects — race, religion, and sexual orientation — would survive review by the United States Supreme Court if certiorari were granted. Difficult to know for sure!

Related Post: Canyon Crest Elementary and First Amendment Issues at School.

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First Amendment Rights of Public Employees and Volunteers Related to Speech and Religion

A public employee’s claim to have experienced retaliation on the basis of expression that is protected under the First Amendment is analyzed under Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). Under Pickering, if the plaintiff is able to make a prima facie showing that adverse action was taken on the basis of protected speech, the defendant must then show either “(1) that its legitimate administrative interests in promoting an efficient workplace and avoiding workplace disruption outweigh the plaintiff’s First Amendment interests; or (2) alternatively, the government would have taken the same actions absent plaintiff’s expressive conduct.”

Images shared on social media that gave rise to the dispute in Lathus v. City of Huntington Beach, 56 F.4th 1238 (9th Cir. 2023).

However, when the nature of a public position is such that “party affiliation is an appropriate requirement for the effective performance of the public office involved” employment may be conditioned on such party affiliation. Branti v. Finkel, 445 U.S. 507, 523 (1980). As the Ninth Circuit put it, “the First Amendment does not succor casualties of the regular functioning of the political process.” Blair v. Bethel School District, 608 F.3d 540, 545 (9th Cir. 2010). There is a continuum of public positions from the highly political — i.e., the appointed staff of an elected leader — to the essentially apolitical, such as an administrative clerk, and the analysis of whether this exception applies will depend on where on that continuum a particular position is. In Branti, assistant public defenders could not be fired for being members of the Republican party even though their new boss, a Democrat, was an elected official. 445 U.S. at 519-520. On the other hand, when an assistant prosecutor announced a candidacy for the office of the prosecutor and was fired by the prosecutor already occupying that position, the resulting First Amendment claim failed because the assistant prosecutor position was viewed as “policymaking” and the firing was simply the give-and-take of the political system. Fazio v. City & County of San Francisco, 125 F.3d 1328, 1334 (9th Cir. 1997).

If the plaintiff is not an employee but rather a volunteer for a public agency, the retaliation claim is assessed under cases like Blair and Lathus v. City of Huntington Beach, 56 F.4th 1238 (9th Cir. 2023), which hold that an appointed volunteer may be dismissed for statements that might otherwise be protected by the First Amendment when “commonality of political purpose” is an appropriate requirement for the volunteer’s services. Lathus, 56 F.4th at 1241. In Lathus, a volunteer member of an advisory board for a city was photographed at a rally with supposed “antifa” members, and was then fired from that position on that basis, and her dismissal was upheld against a First Amendment challenge.

A public employee’s claim that their right to religious freedom has been impaired by their employer by singling out the religion in some fashion will probably be evaluated under Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022). Under that standard, if a plaintiff shows that a challenged policy burdens his sincere religious practice and is not neutral or generally applicable, the burden shifts to the government to “satisfy ‘strict scrutiny’ by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.” 597 U.S. at 525. That test looks to the strength of the government’s interest. Religious expression can thus be “doubly protected” under both the Free Exercise and Free Speech Clauses. Id. at 543. The courts have seen a lot of litigation of these issues in connection with vaccination requirements imposed by public employers and the ostensible religious objections to such requirements. See, e.g., Bacon v. Woodward, 104 F.4th 744 (9th Cir. 2024). However, many vaccination requirements are facially neutral and generally applicable and thus do not trigger the Kennedy standard but rather a more deferential type of review. See Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1177 (9th Cir. 2021).

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RLUIPA Overview

The Religious Land Use and Institutionalized Persons Act (RLUIPA) is a federal law, 42 U.S.C.S. § 2000cc-1 et seq., that provides substantial protections for the sincere religious practices of incarcerated people. The standard it establishes is that if the government imposes a “substantial burden” on a religious practice, it must have a “compelling” governmental interest for doing so and must use the least restrictive means of advancing that interest. Effectively, RLUIPA creates a form of “strict scrutiny” for substantially burdening the religious practices of the incarcerated.

Photo by Jon Tyson on Unsplash‍. ‍

That RLUIPA standard that is considerably more favorable to the incarcerated plaintiff than a claim related to religious practices brought under the First Amendment, since First Amendment claims are reviewed under the deferential standard of Turner v. Safley, 487 U.S. 78 (1987) which lets restrictions remain in place as long as they are “reasonably related to a legitimate penological interest.”

But even under RLUIPA, it can be tricky to make out a case. The plaintiff has to meet that “substantial burden” standard, which has been interpreted as meaning the creation of "a significantly great restriction or onus upon such exercise” of religious practice. Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (internal quotations omitted). Merely being offensive to a religious belief is not a substantial burden to that belief. Navaho Nation v. U.S. Forest Service, 535 F.3d 1058, 1070 (9th Cir. 2008).

The forms of religious practice that are potentially protected under RLUIPA are fairly broad. The statute defines “religious practice” as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." § 2000cc-5(7)(A).

Courts are also allowed to consider whether an individual’s commitment to a given religious practice is sincere or is based on “some other motivation.” Holt v. Hobbs, 574 U.S. 352, 361 (2015).

RLUIPA is somewhat unusual, compared to most other civil rights causes of action, in that it only authorizes suits against “a government,” and thus “does not authorize suits against a person in anything other than an official or governmental capacity.” Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). That is the reverse of the way most civil rights actions are pled, namely against individual actors in their individual capacity. Note, moreover, that this requirement to proceed against “a government” means that a RLUIPA claim brought by an inmate of CDCR (the California state prison system) is very likely to run directly into the Eleventh Amendment if the case is brought in federal court, since suits against an individual correctional officer in his or her official capacity are treated as suits against CDCR itself, and CDCR is protected by the Eleventh Amendment. See, e.g., Holley v. CDCR, 599 F.3d 1108 (9th Cir. 2010). So not only does a RLUIPA claim need to be pled against defendants in their “official capacities,” but if it is being brought against state correctional officers for money damages, it also needs to be asserted in state court in order to avoid that Eleventh Amendment bar. See Williams v. Beltran, 569 F.Supp.2d 1057, 1065 (C.D.Cal. July 30, 2008).

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Government Speech vs. Compelled Private Speech

When the California Medical Board requires a private continuing medical education (CME) provider to include curriculum on implicit bias in medicine, is that government speech or is it compelled private speech that runs afoul of the First Amendment?

Oh Doctor, I’m Damaged: Whether speech is treated as “private” or “government” in nature can be a tricky boundary to draw when the government is exerting control over what a private actor must or must not express. Photo by National Cancer Institute on Unsplash.

A panel of the Ninth Circuit previously concluded in Khatibi v. Hawkins that it was government speech, and thus not subject to First Amendment protections, in spite of the plaintiffs’ arguments that the government was improperly forcing them, as individuals, to express a viewpoint with which they disagreed. Now the Ninth Circuit has denied en banc rehearing of that decision, and there are some spicy dissents from that denial, which argue that the panel got the analysis wrong.

As a side note, the notion that “implicit bias” in medicine is controversial or problematic as an idea strikes me as incorrect. Implicit bias exists throughout life, not because people are intentionally racist or bad but simply because we tend to favor people who appear to fit with our own vision of the world and our sense of who we are, and implicit bias unquestionably affects the way medicine is delivered. If you happened to see that recent appalling viral video of an African-American woman in Dallas being ignored while in active labor in a waiting room, that was a good example, but there is also plenty of empirical research on the subject. Implicit bias is a real and powerful thing.

But put that to the side. Suppose the content of the mandated expression is not about implicit bias, but rather about the historically misleading ideas that have been advanced by the current administration around the treatment of African-Americans under slavery. Now what? For the sake of argument, would it still be okay to require private CME providers to give voice to those perspectives?

In general, there are fairly narrow limits on what sorts of speech the government may compel a private actor to express: compelled private speech is subject to strict scrutiny, which is why we get cases like 303 Creative, where the Supreme Court concluded that a website designer could not be forced to make a website for a same-sex marriage, in spite of the state of Colorado’s public laws prohibiting businesses from discriminating. The implicit bias content in Khatibi probably would not pass strict scrutiny if it were regarded as private speech, since there are plenty of other ways that the Medical Board could convey its message to doctors without requiring a private CME provider to express that message.

The idea of the Khatibi panel is that the CME curriculum is government speech rather than private speech, and is thus exempted from First Amendment protections. The panel wrote: “when California—from beginning to end—dictates, controls, and approves the provider, form, purpose, and content of CMEs, it is in fact the State that ‘speaks’ or expresses its views.” The panel compares this case to one that upheld mandatory funding of beef commercials by cattle ranchers and another that upheld Texas’ refusal to permit a specialty license plate featuring the Confederate flag. The dissenters from en banc rehearing, on the other hand, emphasize that there is a very broad degree of freedom given to CME providers about what their curriculum will be, except in this particular area, and thus that CME speech is unlikely to be perceived as “government speech” in the way that, say, a license plate would in the Texas case.

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First Amendment Retaliation Based on School Administrator's Derogatory Facebook Post

A derogatory and threatening political Facebook post by an assistant principal at a middle school could validly be the basis for adverse employment action against the poster, given the District’s interests, the Ninth Circuit concluded this week in Thompson v. Central Valley School District No. 365.

A proper education? Woodshed photo by Kevin Jarrett on Unsplash.

The assistant principal’s post, made in response to the 2020 Democratic National Convention, referred to “Demtards” and called Michelle Obama a “hatefull racists bitch” (sic). He further suggested that Democrats needed to be taken “to the woodshed for a proper education.” When the post was reported and investigated, the assistant principal claimed his Facebook account had been “hacked,” but had no evidence to support that claim. The District transferred the assistant principal, who then sued for First Amendment retaliation.

This type of case — in which a public employee claims to have experienced retaliation for protected speech — is analyzed under Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). Under Pickering, if the plaintiff is able to make a prima facie showing that adverse action was taken on the basis of protected speech, the defendant must then show either “(1) that its legitimate administrative interests in promoting an efficient workplace and avoiding workplace disruption outweigh the plaintiff’s First Amendment interests; or (2) alternatively, the government would have taken the same actions absent plaintiff’s expressive conduct.”

Here, the District Court concluded that the School District met its burden on the second step of the Pickering analysis, and the Ninth Circuit affirmed. The Ninth Circuit emphasized that the “derogatory” nature of the post and the implied violence of his reference to the “woodshed” matters in that second-step calculus, meaning that the speech was not entitled to the highest degree of protection. The District’s interests, on the other hand, were weighty given that the plaintiff was in a public-facing role and seemed to be broadcasting views inconsistent with the District’s expressed values. His “derogatory and violent language could substantially disrupt the orderly operation of the school,” even when expressed by this individual on a personal Facebook account.

This particular situation does not seem like too difficult an application of Pickering because of the concerns emphasized by the appellate court, but you can see where a public agency’s commitment to somewhat vague values like “inclusivity” and “tolerance,” and the argument that private speech interferes with those values, could potentially get into more ambiguous terrain. Suppose, for example, a public employee posts something on a personal page agreeing with a “derogatory” sentiment of the current president. What then?

Related Posts: Canyon Creek Elementary and First Amendment Issues at School

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Parental Rights and State Speech about Transgender Youth: Two Cases

Two recent federal cases, one in the Ninth Circuit and the other in the District Court, have grappled with the challenging question of what approach government officials must take in communicating with parents when youth present at government facilities in a gender-nonconforming way.

Both cases emerge from challenges to rules that restrict state actors from communicating with parents about these gender-related issues. In International Partners for Ethical Care Inc. v. Robert Ferguson, decided in early December by the Ninth Circuit, the law at issue was from the state of Washington and related to government employees of shelters and mental health care services. Whereas in Mirabelli v. Olson, decided shortly before Christmas, the case arose from a policy of the Escondido School District that was modeled on a policy developed by the California Department of Education.

In each case, the underlying idea of the policy or law is (or was: Escondido has changed the policy since the case started) to limit officials from communicating with parents about the fact that a youth appears to be gender-nonconforming. In International Partners, the plaintiffs lost on the grounds that they did not have standing to challenge the rule, and the Ninth Circuit upheld that loss, but some judges wrote strongly worded dissents from the denial of en banc rehearing, emphasizing parental rights to be informed about their children. In Mirabelli, on the other hand, the plaintiffs prevailed (at least for now, in the District Court), obtaining an injunction that bars the government from permitting or requiring educators to mislead parents about the child’s gender presentation, such as by referring to the child by different names/pronouns at school than in communication with the parent.

This area of the law strikes me as quite a tricky balance to strike. On the one hand, I strongly support the right of young people to live as they wish, including in gender-nonconforming ways, and there is a real concern that “outing” a young person to his or her parents as gender-nonconforming could lead to abuse or other forms of harm. On the other hand, there are complications to mandating theoretically “virtuous” silence or affirmative misrepresentation around these issues, because not everybody agrees on what virtue consists of, and government employees themselves have constitutional rights that deserve respect. Meanwhile, parents themselves historically have a strong interest in what they believe to be the welfare of their children, and that substantive due process right is not one that can be disregarded lightly. The parents in Mirabelli, drawing on Mahmoud v. Taylor, 145 S. Ct. 2332 (2025), also asserted that they have a First Amendment right to direct the religious upbringing of their children, and that a policy of non-disclosure interferes with that right.

In 2024, the state of California passed AB 1955, the SAFETY Act, which (among other things) prohibits requiring teachers to “out” students. The Mirabelli ruling asserts that it is “not about” AB 1955, and arguably there is some narrow sliver of light between the injunction and the law, since Mirabelli deals with not compulsory outing but compulsory silence. As a practical matter, however, since the injunction does not permit speech that seeks to shield a young person’s gender presentation, it does effectively require speech that will be outing in its effect, and thus strikes down the compulsory outing ban of AB 1955 without explicitly saying so.

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Canyon Crest Academy and First Amendment Issues at School

This weekend’s coverage in the San Diego Union-Tribune about two students who wrote an investigative report on Canyon Crest Academy Foundation illustrates a reality that was always very disappointing to me as a young person and scribbler of occasionally controversial ideas: namely, that schools ultimately don’t give a damn about student journalism if that journalism takes aim at the institutions of the school itself.

Up and Away: A graph from the students' report on the Foundation shows the ballooning of the amorphous "other" expense category over time.

Instead, schools who are the subject of critical reporting behave like most other corporations out there, and in fact they tend to be among the more shameless of corporate actors in their single-minded focus on only their own interests. So, instead of upholding values like transparency, or good faith debate about matters of public concerns, or whatever other First Amendment-related ideal, they instantly circle the wagons, and blame the messenger. They do that even when doing so involves trashing the reputation of their own students.

In this case, the principal of Canyon Crest Academy has “condemned the report and reprimanded its authors,” according to the Union-Tribune, never mind that the report seems to have identified serious questions about the Foundation’s former leadership and accounting to the tune of several hundred thousand dollars. It is unclear if any formal discipline will be imposed, but the general approach of attacking the students’ reputation in the media is already, I would say, an adverse impact.

The principal is quoted as saying that “while the school board acknowledges the First Amendment’s freedom of speech protection, the board ‘also expects that all speech and expression will reflect norms of civil behavior on district grounds.’ ”

But the students are not on “district grounds”: their report is on an independent website. So what standards apply here?

In a way, this report is merely one example of a phenomenon that comes up frequently now in connection with social media, which is Internet posting by students about content that is school-related but which is not hosted on school servers or presented via school media. A very different variation on the same theme are the recent reports about deepfake pornography created by male students targeting female students, though that example does not involve the significant public accountability thread that is present in the Canyon Crest scenario.

Student speech rights are not as broad as those of adults, and can be regulated in certain ways (for example, speech advocating drug use is subject to limitation under the famous “Bong Hits 4 Jesus” case, Morse v. Frederick). When it comes to off-campus speech of the sort that is going on in the Canyon Crest case, the relevant question is whether the speech “ ‘might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities.’ ” Wynar v. Douglas County Sch. Dist., 728 F.3d 1062, 1067, quoting Tinker v. Des Moines, 393 U.S. 503, 514 (1969). Such “substantial disruption” might be expected, for example, in the deepfake example or in instances of expressing racist or otherwise deeply offensive points of view about students or faculty. See, e.g., Chen v. Albany Unified Sch. Dist., 56 F.4th 708 (9th Cir. 2022).

On the flipside, a student’s mere use of social media to express a pointed general sentiment, such as “Fuck school fuck softball fuck cheer fuck everything,” does not give the school the power to impose discipline, since that sentiment, even if it expresses “negativity,” is very unlikely to cause a “substantial disruption” or to interfere with anybody in particular. Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180 (2021). Here, the report on the foundation strikes me as being much more like saying “fuck cheer” (or perhaps “fuck the way this foundation is being run”) than any sort of potentially disruptive or improperly personalized content. In fact, if anything, the authors of the report seem to be performing the valuable function of standing up for integrity and transparency, not actually trying to disrupt anything at all.

And Thank Goodness: High school students do, in fact, have the First Amendment right to say "fuck cheer fuck everything."

Which means that, at least in theory, the school should probably not be trying to shut down the authors, and the perceived “civility” of the report, or lack thereof, does not change that fact. (By the way: does it uphold “civility” for adults to trash student journalists in the media?) In any event, surprisingly often it’s the case that schools, despite the role they potentially could play in setting an example around the importance of public debate, lash out first in response to critical speech, and only stop to consider the legality of their own actions well after the fact.

Related Post: Ninth Circuit Sees First Amendment Issue Stemming from First Grader’s Expression Punished By School.

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LAPD Finds No Wrongdoing by Sergeant Who Shared Offensive George Floyd Meme

An LAPD sergeant who shared an offensive meme about George Floyd has been cleared of wrongdoing by the department. The meme, sent on Valentine’s Day, featured an image of Floyd and the caption “You take my breath away.”

As outrageous as the content of that meme is, there do seem to be ambiguities in this case about the intent of the sergeant. His attorney is quoted by the LA Daily News as saying “The officer found the meme offensive, he did not create the meme, nor did he distribute it beyond notifying a commanding officer of its existence.” Tough to know if that is accurate, but at the same time there may be a value (in the context of our contemporary culture) in not taking everything in the worst possible light.