"Don't Say Gay" Bills Must Violate the 1st Amendment... Right? RIGHT?!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:47 Thomas: This is episode 1051, and I'm your host, Thomas Smith, and it being 1051 means new intro quotes that you already heard. Gotta say, overwhelmingly, so many people wanted to keep, I, I hate the Supreme Court, so I did, you, I did change the position of it so that that people would know the quotes were new, because if they heard that right away, they might think they hadn't changed. Always fun to have new quotes. Thanks so much to the patrons who suggested them, patron perk.

Today's episode, so you may remember Carolyn Mala Corbin from such episodes as "A Critical Race Theory Look at Critical Race Theory Bans." Along those lines, she has a newer paper called "The Government Speech Doctrine Ate My Class." This is about the don't say gay bills and other kind of curriculum bans, and the crazy thing, I thought, I imagine a lot of you thought, that those don't say gay bills would definitely just be violations of the First Amendment.

I mean, surely if free speech means anything, it would, think it means you're allowed to, like, talk about gay people in a classroom and not have that be outlawed. Turns out it's a little more complicated than that, as Caroline's going to tell us.

A lot of these bills were challenged on different grounds, so it's not as though they're all cool, totally fine or anything, thing, but I really was surprised to find out that, uh, hey, actually these might not even violate the First Amendment, according to the Supreme Court, of course, gotta add that. And so how is that possible, what does it mean, why is that, and what should this actually look like?

Because this paper by, by Caroline, also a framework for why this is wrong, and First Amendment should actually protect this kind of speech. So all that to come after the break. Can avoid that break by going to patreon.com/law, get pledging, rid of those ads, access to bonus stuff, and get that warm, fuzzy feeling that you are the reason the show is happening. Right, let's get on over, Caroline, and talk about these don't say gay bills and how in the world they don't violate the First Amendment.

0:02:48 Thomas: Show is brought to you by Rocket Money. Money is a personal finance app that finds and cancels your unwanted subscriptions, monitors your spending, and helps lower your bills so that you can grow your savings. Hey, here's the thing about me, I, uh, sign up for subscriptions all the time and forget about them all the time, and that's not good, and Rocket Money practically might as well be made for me. They must have studied me and been like, gosh, that guy needs an app for because, wow.

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So stop wasting money on things you don't use. Cancel your unwanted subscriptions by going to rocketmoney.com/opening. That's rocketmoney.com/opening. One more time, rocketmoney.com/opening. back to the show, Carolyn Mala Corbin. How are you doing today?

0:04:04 Caroline: Good, I'm so excited to be back, this

0:04:06 Thomas: Too. I'm so excited because I am just realizing your ability to name your papers, very good. The last one, of course, we had "Critical Race Theory Analysis of Critical Race Theory." This one, "The Government Speech Doctrine Ate My Class," I think. Are you the only one who names them so, you know, fun, or, do, is that normal? Oh, I

0:04:31 Caroline: One is about to be published, so I think it's too, too late for me to change the title. I wasn't 100% sure whether I should go with it. But I eventually could not resist. And therefore, I have a little play on the government speak doctrine ate my homework or ate my class. But the second part is very respectable for First Amendment capture and curricular ban. So right,

0:04:38 Thomas: Love it okay yeah that's more, you got the professional part, um, a mullet, it's business in the front, no, it's a reverse mullett, or I don't know, yeah so um, as fun as all that is, the obviously what's happening is very not fun, because we talked about the critical race theory stuff, and you kind of mentioned in that recording, I think, that of this paper, and of course I was very eager to hear it. So we want to talk about the curriculum bands, and I mean, why don't you just launch into it? I know there's a lot of components we want to talk about.

0:05:03 Caroline: Part business in the back. Okay, so this paper, the last paper was more about critical race theory. This paper is very much about First Amendment free speech law. So basically, this paper looks at free speech challenges to these curriculum bands. So I should first say what what bands I'm talking about. These are sort of of the educational gag rule. So it includes, Florida

0:05:49 Thomas: I'm going to just guess Florida is my first guess.

0:05:52 Caroline: Has both. Florida, my current home state is an endless source of inspiration for my academic endeavors. So yes. Florida has Both a law restricting the teaching of what the legislatures understand to be critical race theory, which is not actually critical race theory but nonetheless restricts education on racism and race history in the United States, and also don't say gay laws, which Florida pioneered. These laws forbid teachers from talking about sexual orientation or gender identity. So these are both laws that limit, censor what a teacher is allowed to discuss in the classroom.

0:05:53 Thomas: Yep. Yep. Ah, your muse. Yes. Now, right away when these were passed, it seemed like the was, well, okay, none of that's constitutional. That won't hold up. But I got to admit, I didn't really follow up on that myself. So is that, did that happen? I

0:06:47 Caroline: Yeah, initial reaction would be, well, this is clearly the government censoring viewpoints it doesn't like. And if there's anything that's anathema under the free speech clause, it's the government censoring viewpoints it doesn't like. And so you would think or you might think that this is a slam dunk when it comes to a free speech cause challenge. But actual law is rather more complicated. And in fact, these are hard to challenge on a free speech. Yes. Now, speech is not the only challenge you could bring to it.

Even if you're thinking just about the Constitution, which is what I focus on, you might also bring an equal protection challenge, right? The equal protection forbids the government from discriminating against a group, often one that's been historically discriminated against. Might also be vulnerable to a due process challenge. And the due process clause guarantees everyone sort of notice of what's illegal and an opportunity to be heard. Fact, most of the actual cases, to the extent they ever reach the merits, because a lot of them have been shunted aside based on standing, which is there's arguing you don't actually have a right to bring this case in federal court.

0:07:36 Thomas: Wow. Really? Really? Sorry.

0:08:34 Caroline: But again, not tangent.

0:08:34 Thomas: Who doesn't have the right? Right.

0:08:37 Caroline: I'm going to get into one tangent, not the other. But

0:08:38 Thomas: Okay. That's fair. Tangent. You're not doing cotangent. God forbid we do any secants or, you know, any of that cosines. Yeah. Okay, sure.

0:08:48 Caroline: Have noticed that there are a couple of cases the Supreme Court did not decide this term because they said the parties before the court don't have standing. They're not the right people to bring the case. When there is standing and when courts do reach the merits, they're often arguing. They're often finding that these laws violate the due process clause. In other words, they don't give people enough notice about what's illegal because they're vague. Vague, the laws are too vague, right? So the due process clause says, listen, a person of reasonable and a reasonable intelligence has to understand what this law is covering and not covering.

And these laws are so poorly crafted that that's impossible and is that so for example with the don't say gay law it says it forbids instruction on sexual orientation and gender identity. And one of the big questions is, what does instruction include, right? Does it include someone asking a question that you answer? Is it a discussion about everyone, what they did with their family over the weekend? And one person says, well, me and my two mommies went to the amusement park. And the teacher says, Well, tell us more about what you and your two two mommies did. Is that instruction on sexual orientation? And there was just a lot of confusion about what the law covered.

0:09:15 Thomas: Yeah, okay. Fair enough.

0:09:32 Thomas: Yeah.

0:10:14 Thomas: Just having to answer that question is already like already seems Handmaid's Tale-esque. I don't know. That's crazy.

0:10:21 Caroline: Of the major problems is that the phrasing was so vague and ambiguous that it was impossible to know what the teachers just didn't know what they were allowed to do. School districts didn't know what they allowed to do. And of course, whenever there's lack of clarity about the law, when it comes to speech, speech tends to get chilled. So there was a lot of, like, school districts tended to ban much more than what was actually required by the law. And teachers whose jobs and licenses were on the line tended to avoid topics entirely, even when they didn't have to. So very problematic laws. And legally, what's going on, to the extent they reach a decision, it's mostly on vagueness grounds, although in Florida itself, um, had a settlement agreement on their don't say gay law. So the court didn't decide. The parties came to a settlement.

0:10:29 Thomas: Right.

0:11:21 Caroline: It was crazy. Like, schools, like, were told to take down their safe state, safe space stickers. They were told to remove their pride flags. They were censoring picture books that had gay characters in them. They, Miami-Dade stopped recognizing LGBTQ month. Month, one district took down a video about LGBTQ bullying because nobody knew. It wasn't clear what was allowed. So anyway, those the laws. And so in the real world, what's going on is they're decided under due process clause or they reach a settlement agreement. But as a First Amendment scholar, I was interested in thinking about, well, if the court actually did want to look at this through the lens of the free speech clause, how would this litigation come out?

0:11:21 Thomas: You can say gay. Sorry. Oh, wow.

0:12:21 Thomas: Okay. Yeah, let's look at that. But I, mind blown, pin. Think a lot of people, including myself, would be surprised to hear that that's how that went down. That is really interesting. And so it sounds like from that description, sounds like these laws are, are pretty powerfully still in effect. Places, right? Yeah.

0:12:37 Caroline: Has a settlement agreement where they clarify the contours, but that's just one state and one law. And so

0:12:39 Thomas: But What is that? Yeah. Okay. Well, That also doesn't sound good. I mean, does that mean? Yeah.

0:12:47 Caroline: Well, I mean, they managed to narrow the coverage of the law in ways that made it less devastating, but did not eliminate the fact that these are really highly problematic. And really should violate the free speech clause.

0:12:48 Thomas: Yeah. Wow. Wow. All right. Well, let's talk about that.

0:13:07 Caroline: Us, when you're thinking about free speech challenges, you could think about either a teacher bringing a claim that the state is censoring and distorting their speech in the classroom. And you could also think about students bringing a free speech claim on the grounds that the the state is censoring information that they have a right to receive. And the is rather different for each of these claims. That's because, and perhaps, I'm sorry, I should have made this clear. These laws apply to public schools.

0:13:34 Thomas: Yeah. Right. Sure.

0:13:47 Caroline: So When I say teachers bringing a claim, I mean public school teachers, teachers and the free speech law around public employees like public school teachers is different than free speech laws as applied to you or me as citizens. Just having conversations, if you're speaking as a citizen, you have the full protection of the free, free speech clause. You're speaking as an employee, then not surprising that your employer has more control over what you say at work, right? So if you hire a teacher to teach French, you don't want them teaching Spanish, right.

So it some sense that that the government has a bit more control over the speech of their workers rather than speech of citizens. However, it's still the government and they still can't abuse their power. So at one point, the law used to do a balancing test. It used to say, well, listen, if what the government employee is, the legal term on a matter of concern, public concern, if it's on, you know, something about politics or economy or families or something that's newsworthy, something that has value, then it's still going to be protected unless it disrupts the workplace. That's not the law anymore. And

0:13:48 Thomas: Yeah, yeah. Uh -huh. Yeah. Sure. Oh,

0:15:15 Caroline: It's not the law anywhere because of the government speech doctrine. So that's the government's speech doctrine in my title. And the government speech doctrine is actually one of the most straightforward constitutional rules that I have encountered. And it basically says if the government is speaking, then that speech is not protected by the free speech clause. If you're a private person and you're speaking, that's protected. If the government is speaking, it's not protected because the free speech clause is supposed to protect private speakers, from the government.

It doesn't protect the government from itself. All the rub. Since 2006, in a decision known as Garcetti versus Ceballos, the Supreme Court has said that when a government employee is speaking pursuant to their official duties, then that's government speech and not protected by the Free Speech Clause.

So if a government employee is speaking in the course of executing their official duties, if they're basically their speech is the result of their work responsibilities, then it's going to be speech pursuant to official duties and it receives zero free speech protection. So, under a Supreme Court decision from 2006, the Supreme Court said when a public employee is speaking pursuant to official duties, then that's government speech, and therefore not protected.

0:16:57 Thomas: I could imagine some gray area of like Twitter account or you're an employee kind of off the clock. Yeah, yeah pretty

0:17:03 Caroline: Right? Uncertainty about whether someone is speaking pursuant to their official duties or not. However, a teacher teaching their classes is pretty core pursuance to official duties.

0:17:15 Thomas: Solid. It, yeah, sure. All.

0:17:18 Caroline: So the bottom line is teachers who are teaching are going to be considered speaking pursuant to their official duties.

0:17:19 Thomas: Right, and Fair enough, because, like, let's sub this in. I mean, we don't want public school science teachers teaching that evolution doesn't exist or whatever, or like... It, that, that would be a context where I think my audience would probably be more sympathetic, like, "Oh yeah, that makes sense."

0:17:40 Caroline: Absolutely. But then again, remember, so as as they're speaking pursuent to official duties, there's no free speech protection, protection. So, if the government, at the same token, if the government passes a law that says, "Hey, you are not allowed to talk about sexual orientation during your classes while you are instructing," you can't challenge that at all. Right? So, yes, it should not be as protected as a citizen talking, but prior rules still said, "Wait," you know, "you're not as protected, protected, but you're not completely without free speech protection."

0:17:40 Thomas: Oh. Okay. Huh.

0:18:19 Caroline: Right? The rule now is full stop. You can't challenge at all.

0:18:23 Thomas: Interesting.

0:18:24 Caroline: Have no recourse under the free speech clause. Maybe due process, equal protection, other title seven. There may be other grounds for litigation, but the free speak clause is not going to help you in challenging an educational gag rule. If you're a public school teacher. I

0:18:41 Thomas: So Are Kind, you're implying that the, that old rule maybe is something you agreed with more, or

0:18:46 Caroline: Was clearly implying that I think I prefer the old rule rather than the new rule because at least it, like absolutely you should take into account whether the speech is disruptive. This a lot more than disruptive speech because even if it's disruptive.

0:19:07 Thomas: I See.

0:19:08 Caroline: And even if it's important speech, say it's whistleblowing, right? Say that part of your job is to ensure compliance with safety regulations, right, that's part of your job, and you discover that your government, right your government agency is violating the law. And you want to say something about that. That speech is part of of your job responsibilities, it's not protected. Even though that's exactly the kind of speech we want to hear from people who are working in the government, because who can do a better job letting us know where the government has gone awry than people working in government? That speech is no longer protected.

0:19:08 Thomas: Oh. Well.

0:19:51 Thomas: What would protected me, I guess? Yeah, maybe I'm covered.

0:19:54 Caroline: Covered, I should say covered, right? Because again, the previous rule was, you don't automatically win your free speech challenge, but at least the court has to to consider, is what you're saying valuable in terms of speech?

0:19:56 Thomas: Yeah.

0:20:06 Thomas: So I guess you're saying, like, okay, the whistleblower gets fired for whistleblowing. Before you might have had a chance of like, "Hey, that can't happen." Gotcha.

0:20:17 Caroline: They shouldn't be firing me for letting the public know the water is polluted, right?

0:20:18 Thomas: Okay. I see. I see.

0:20:24 Caroline: They shouldn't fire me for letting you know that the police have lied on a warrant. Your teacher can't say, hey, you're completely distorting the educational process by censoring things my students should be learning or engaging with?

0:20:41 Thomas: It's helpful to hear the kind of the real examples. Aside the of the laws like we already know that that's but set that aside for a moment. Under the old rule, maybe a a gay teacher says, oh yeah, me and my spouse that is the same sex, we out to whatever. Was okay, so they get fired before it'd be like, hey, this is, I'm just mentioning my partner that's the same gender that I should be protected for that. But now it's like, no, you were a teacher on the clock, so no protection for anything.

0:21:09 Caroline: Has to be pursuant to official duties.

0:21:11 Thomas: Class, I guess is what I'm asking.

0:21:14 Caroline: That's a little, again, if that's part of the classroom and part of instruction, like if you're a math teacher, I guess if you were a math teacher and you're making up a word problem and you say, you know, me and my husband, and you're male teacher and get fired for that, that would be clearly part of instruction, and you would have no protection under the free speech clause for that if the speech is considered pursuant to official duties, because it's the new rule, it's very categorical, like

0:21:40 Thomas: Okay. I, there's a distinction that doesn't make sense, but just based on my experience and more in high school and stuff too, like there's all kinds of times where you're just around the teachers, you know, that where they're not teaching you. And I wasn't sure if that distinction mattered in this or not.

0:21:50 Caroline: Right. That's a good question, right, that becomes a little more, uh, could be situation. It's not that everything that comes out of the teacher's mouth during the school day is pursuant to official duties. Certainly a possibility that a discussion after the class will be considered part of your official responsibilities.

0:22:03 Thomas: Okay, Okay and then, but we were talking about the difference between the old rule and the new rule. Is there anything implicated or is that a separate kind of legal issue?

0:22:16 Caroline: Old I'm just saying the old rule would at least allow the possibility of the teacher to make an argument that this is wrong, this law is unconstitutional, and it violates the free speech clause. They

0:22:28 Thomas: Oh, okay. Oh, oh, and this doesn't, I see. Okay. So, so it was less about me thinking about like the distinction of circumstances and more like you can't even bring it at all. You know, for sure.

0:22:34 Caroline: Can't bring a claim Well, you can, you can bring it, but you lose, right? Because the court will say, if this was part of your teaching responsibilities, then it is government speech, and the free speech clause does not cover government speech, end of litigation, right?

0:22:47 Thomas: Yeah. Sure. That's rough. That's a tough rule.

0:22:59 Caroline: Yes, that's, aren't gonna have much luck.

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0:24:41 Caroline: Might have a chance because students are not employed by the government. Their claim is based not on the right to speak, but on the right to hear. So this is a very important point about the free speech clause, which is that it protects not just speakers from being regulated by the department, but everybody understands the government, generally, the free speech clause prevents the government from censoring what you say.

0:25:07 Thomas: Mm-hmm, yeah.

0:25:08 Caroline: Also prevents the government From forcing you to speak when you don't want to. So I'm not a government employee, by the way, I work at a private university. So the government can't censor me from criticizing its laws. Nor can Florida force me to write an essay saying how magnificent I think the don't say gay and CRT bands are, right? That would clearly violate the free speech clause. People understand that. May not be as well understood that the free speech clause also protect listeners as well As speakers. And in fact, two of the three main theories justifying protection for free speech on the Constitution, they actually actually focus more on audiences than speakers. I'm going to talk a little bit about free speech theory, right? But you generally, might ask, well, why does the Constitution protect their free speech clause? Why do we think free speech is so protected that when the government regulates it, we want the courts to take a closer look at it?

And one of them is sort of one that everyone understands is it sort of violates your individual autonomy if you're not allowed to express yourself. So one reason we protect free speech is to promote self-expression and individual autonomy. That one's more speaker focused. But the other two are more audience focused.

So another theory that many people may be familiar with is we protect protect free speech because we want to encourage a robust marketplace of ideas because that's how we're going to expand our knowledge and understanding of the world. When you think about a marketplace, marketplace is for the consumers.

0:25:43 Thomas: Hmm. Right.

0:26:57 Caroline: Protecting the free speech so So people have access to a wide variety of viewpoints and ideas and theories, right? That's more audience focused. So that marketplace of ideas that many of your listeners are probably familiar with, that's more focused on audiences rather than speakers. The third major theory, the that people give for why the Constitution protects free speech, is that it's essential for our democracy. Why is it essential for our democracy? Well, it's central to have a free flow of information so that voters have access to information about what their representatives are doing.

0:27:42 Thomas: We need the media to be able to publish an article about Joe Biden being too old every minute on the minute for every day and to not ever talk about trumping older being liar of any of that. We needthefreedom to do that. I agree. I

0:27:58 Caroline: Interesting questions of what What do you do when audience interest and speaker interest clash, right? So we tend to value the rights of speakers over the rights of audiences, because if you thought audiences should be more important than speakers, then you might insist on a more sort of like equal distribution of ideas. But that's not the system we have.

But the bottom line is, right, you need to have a free flow of information for people to know whether they approve or disapprove of their the representatives because govern by our consent. We give that consent at the ballot box. We either vote yay or nay, but we need to have sufficient information in order to make an informed decision about whether or not they've been implementing our preferred policies or not, for example.

We also need a free flow of information to develop our preferred policies in the first place. Again, I'm talking about why is the free speech clause important? There are three main justifications. One is focused on the speaker so they can express themselves, so they protect their autonomy. The government shouldn't be invading your freedom of conscience about what you say or don't say. That's more speaker focused.

But the other two, about creating a marketplace of ideas in our search for knowledge, that's focused more on audiences, and that we protect speech in order to promote our democracy, that is also focused more in ensuring that the voters as an audience have access to the widest possible range of ideas. Is. This is just a very long way of repeating the main point that the free speech clause protects not only speakers, but also audiences, which is why students as audiences also have free speech rights.

So they too should be able to break a free speech challenge. Probably should have stated right at the beginning. Maybe I did. Generally, when the government censors a viewpoint, that is presumed unconstitutional. End of the story. Basic free speech law, which

0:30:02 Thomas: Yeah.

0:30:03 Caroline: I think is everyone's sort of instinctive reaction when they hear that the government is censoring certain viewpoints and ideas is that's unconstitional. Yes, generally it's unconfident. It's unconventional under the the free speech clause, because when the government censors a viewpoint, even a subject, it's presumed unconstitutional. Again, as we said, the rules are different when you're talking about public employees. The rules are also a little different when you're talking about students in schools.

0:30:08 Thomas: Yeah, also, I mean, curriculum is just an interesting thing, right? I mean I imagine, again, a lot of my audience is coming from like kind of the atheist and skeptical land a little bit, and we're very familiar with like Christians trying to get intelligent design in the classroom, and go ahead.

0:30:45 Caroline: You'll have to have me back to talk about religion because that's my other area.

0:30:48 Thomas: Sure, but just maybe to make it, bring it home with that kind of example. I mean, I imagine curriculum has got to be a little bit different because if the, if, if teachers are saying, all right, you can't, or if schools are like, well, we're not teaching, you or whatever it is. I imagine it's, it's not presumed unconstitutional for to not teach some nonsense or something, or

0:31:04 Caroline: Right. Okay. So what you're thinking is there's more than one limit about what the government can do. Right now, we're talking about limits in terms of speech. Some of what you'll be touching on is limits put on by the establishment clause.

0:31:28 Thomas: Just, I guess I just meant talking about specifically public school curriculum, like, just in itself.

0:31:32 Caroline: That's what I'm saying. Some of the limits, Like posting 10 Commandments in the public school classroom, you can challenge that on free speech grounds. I immediately think that that violates the establishment clause because that's promoting one religion over others, which is what the establishment cause is supposed to prohibit. Teaching, barring the teaching of evolution seems to have no other purpose, but to promote one religious viewpoint, and that should violate the establishment clause.

0:31:32 Thomas: Okay. Oh.

0:31:58 Thomas: So It's usually taken on from that angle rather than free speech. Well,

0:32:01 Caroline: You're Talking about religious dogma in the public schools, that's

0:32:05 Thomas: I'm talking about, okay, let me imagine, maybe this example will will help me, uh, anti-vax, uh, person, uh, is a biology teacher in the schools. Like, you can't teach people that vaccines cause autism. And he's like, free speech, man, you can't, this is, you can't limit.

0:32:19 Caroline: Uh-huh, well, Again, if you talking about the public school teacher, you already know the answer, can the public school teacher challenge the curriculum? No.

0:32:24 Thomas: Oh, well, that's that's fair. OK.

0:32:28 Caroline: Why not? Because it's government speech.

0:32:29 Thomas: They don't have any rights. Yeah,

0:32:32 Caroline: Teach because it's. Now, if the science teacher wrote an op-ed, that's different, because that's not pursuant to official duties, that's not part of their job, that's the teacher speaking more as a citizen rather than as a teacher in the public school doing their job. Okay, that's why I was was saying is, like, the teachers is kind of a non-starter um, as you pointed out, there is some room to maneuver because not everything that comes out of a teacher's mouth during the course of the school day is going to be considered pursuant to official duties, and we know that because of Kennedy versus Bremerton School District.

0:32:32 Thomas: that'S fair. Okay.

0:33:14 Caroline: Where I know, right, don't even, I know, no.

0:33:14 Thomas: My god, that's the case that's like the good one in this instance, okay.

0:33:20 Caroline: That's Right. Isn't that the takeaway from there is that a public school teacher can say things during the school day while they're on the clock, and that's not automatically going to be considered pursuant to official duties. So there is, you know, as you're saying, there is some leeway there. There is some sort of room to maneuver in what you consider pursuance to official duties or not, like

0:33:44 Thomas: Let's fight fire with fire, so we need a teacher who's not a piece of shit, a PE teacher in Florida, to make their whole team say that gay people exist and trans people are people and all that at halftime, or no, after the game, make them kneel and say, hey, you're not, you're not forcing them, but you just, just, you know, they all kind of have to do it, otherwise they're not going to get playing time, you then the Supreme Court will magically see that those weren't the actual facts of Bremerton.

0:34:09 Caroline: That hypothetical I love the hypothetical, of course they can't, the way they just have to say is, it is, I don't know how they're going to justify it with, no, part of my religion forces me to acknowledge all of my students, and so after each game I like to just give a blessing to all the different kinds of students in my team.

0:34:17 Thomas: Oh, yeah, I would Like to just signpost that I, I think us on the left of this audience love coming up with using the terrible decisions of the court against them, but then they just magically have no consistency and don't care. So it's a fun thought exercise, but it doesn't matter.

0:34:44 Caroline: Right. Which Is why. Maybe if you have me back, I'll talk about religion clause challenges to abortion bans. Okay?

0:34:52 Thomas: Oh, that is, you're very good at coming, this is like you're, like, watching a season of Lost, I'm at the end of the episode, I'm like, I have to watch the next one, come on, sure.

0:35:02 Caroline: Because the students, okay, so, so here's the thing, there are, there's not a definite Supreme Court rule when it comes to student challenges to curriculum decisions. Are a couple of cases that suggest a rule, but don't guarantee it. And I'm going to talk about those. But there's also the possibility that curriculum decisions will also be considered government speech, speech, and the curriculums are considered government speech, what does that mean? Yeah.

0:35:03 Thomas: Hmm.

0:35:15 Thomas: Then It's not protect, uh, you're, in a teacher's not wait, but we're talking about students. So I don't, oh,

0:35:39 Caroline: Yeah. But that's what I'm saying, if the, the students can't challenge it either if it's considered government speak, so but don't know yet how the Supreme Court would rule rule about a state limit on curriculum, because, it outcome, they say it's government speech. And some lower courts have done this, like, lower courts have gone in one of two directions. Some of them have been hopping on the government speech bandwagon, and saying decisions about school curriculum, also government speech, and therefore cannot be challenged under the free speech clause.

Other district courts, I mean, other lower courts, district courts and court of appeals have relied on a couple of Supreme Court cases that concern themselves with speech in public schools. And so let me tell you a little bit about those. So again, what I started to say in the bigger picture is, like, the the free speak rules are a little different if you're a government employee.

The rules are also a little different if you're a student in school, partly because minors don't have the same free speech rights as adults do, and partly because schools are understood to have very specific responsibilities, and that they need to be able to control the speech that occurs in schools in order to fulfill those responsibilities. And those include, like, teaching subjects so that students can learn and become economically independent, and also teaching students certain values that's important for the continuance of our democracy, right?

0:35:46 Thomas: Yeah.

0:37:17 Thomas: Allegedly, yeah, well, just in theory, okay, sure.

0:37:19 Caroline: Well, just like that actually comes in help that actually is useful in challenging these laws. But just again, the background rule is generally the government can't restrict viewpoints. That is presumptively unconstitutional. But we have one deviation when we're talking about government employees. We have another deviation when we're talking about students in school and what they have a right to hear or not hear.

0:37:19 Thomas: Yeah. Okay. Hmm.

0:37:48 Caroline: So let me talk about this one case that's probably the most relevant for this particular problem, which is a case involving censorship of books in the school library, so This Conservative parent group got a list of books that were problematic, and the school board removed them, and there were books like Langston Hughes, Bernard Malamud, like they thought they were un-American, and students challenged the removal of these books under the Free Speech Clause. And the first thing to note is that they did have standing because the Supreme Court said students have free speech rights as audiences. And so the government, there are limits to what the government can do in the public schools.

And it basically said it's OK for the government to remove books from the library for legitimate reasons. So what does that include? If they were not educationally suitable, if they were irrelevant, if they were inappropriate to the age and grade level, like could remove books for those reasons. Those are legitimate reasons. Can't remove books if they're motivated by politics and and partisanship. And we're simply hostile to the ideas.

So the examples the court said is a Democratic school board motivated by party affiliation can't remove all the pro-Republican books from the library. A white school board, motivated by racial animus, can't remove books by Black writers or books advocating racial equality.

0:38:03 Thomas: Right. I I hope, hope there aren't too many, like, Democratic, Republican books in a kid's library, but maybe, I don't, I haven't been in a kid's library in a while.

0:39:52 Caroline: The idea is some book removals are constitutionally problematic under the free speech clause. There is another case that sort of articulated this more concisely in saying, you got to have a legitimate pedagogical reason if you're going to censor speech, right? To do it. So theoretically, right, under the Supreme Court decisions, these rules are unconstitutional if their censorship was was motivated by politics of partisanship rather than a legitimate pedagogical reason. Could be the rule. Again, how a particular court might apply that rule will very much depend on the individual temperament of the people who make up that court. But it allows a free speech challenge to the censorship, might think, well, if there's a Supreme Court case saying this, why isn't that the rule? Why is there even any room to argue that this is government speech that's completely unprotected? One of the reasons maybe is that these decisions predate the government speech doctrine, which is pretty new, right, that's one reason.

Another reason is that the case about censoring books from the library was very clear that it was was only talking about removing books from the library and not removing materials from the curriculum. It's saying those are different things. They have different purposes. It may be that the school board has complete control over the curriculum. Finally, it was a plurality opinion.

The existing law, you could have a successful free speech challenge by students if you can make the argument that these decisions are not motivated by legitimate educational reasons, but are motivated by hostility to ideas, other hand, and it may be that courts opt to say, no, this is government speech and therefore you lose.

0:40:38 Thomas: That's what I was gonna ask yeah Geez.

0:42:05 Thomas: Yeah, as important as it is to learn this theoretical structure, I can't help but think on every single one of these, well, is it a Trumpy Trump court or is it a normal court? You know, are they gonna say that, well, it's vital to the curriculum that you've not not learn the perverted ways of the homosexual or whatever, or are they going to be like, yeah, obviously that you can't ban books that have gay characters. And it feels to me I don't don't t want get too nihilistic about it, but, but, mean, how much do you think think about that when you're doing you this sort, when you're writing something like this, how much in the back of your mind are you thinking about, like, well, how will this get applied? Or are you really trying to focus on, like – here's what the theoretical legal architecture is.

0:42:47 Caroline: Course, I'm always mindful that, especially if you're talking about a court of one, even a court of three, who's sitting on that court, it makes all the difference in the world. But as a professor of law, unless I want to completely give up on the rule of law, I have to either hope for the best or at least try to minimize the worst and understand that not all judges are going to be completely outcome driven.

0:43:04 Thomas: Yeah. Yeah. Mm-hmm. Mm-huh.

0:43:23 Caroline: Judges might feel constrained by not just precedent, but principle, because that's basically, I mean, I haven't gotten to the principle part of my paper. I'm just telling you what the law is.

0:43:35 Thomas: Oh, sorry.

0:43:36 Caroline: But even here, no, that's fine. Like even here there's a choice, right? The court has a choice to make between finding it to be government speech or finding that the students have a right to challenge censorship of important ideas that they should be exposed to. To the extent a paper I write might help a judge reach the right conclusion, I'm going to go for it.

0:43:39 Thomas: Uh-huh, Yeah, of course. No, I, yeah. It's like, if are going to be plenty of, uh, and courts that still operate, you some sense of shame and you need to know what the law is for, for those challenges to work.

0:44:08 Caroline: And the will change, right? Sometimes Sometimes, uh, written may not sort of bloom for many years. That's one answer I could give. It's not the only answer I can give, but that's the answer I'll give today. Know the more despondent answer is yes, like, what's the point if people are just going to? Do So here's an example. Remember how I spent all that time making the point that a teacher teaching their classes is speech pursuant to official duties, and therefore they should not be able to challenge sort of regulations of their classroom instruction? That's a pretty tight argument. And, yet, and yet, when it came to a teacher who wanted to challenge regulations about misgendering students in the classroom, the Supreme Court of Virginia managed to argue you that actually that was not government speech and could be challenged under the free speech clause. And so, you know, your dark view is reality with our current court.

0:44:11 Thomas: Yep. Yep, sure. Okay. Oh, God, That's The Virginia Supreme Court, huh? Geez, boy.

0:45:25 Caroline: Court, a teacher who said he had a free speech right to intentionally misgender the students under his care. Yeah.

0:45:33 Thomas: It seems like the ironclad rule that, not, not saying you love that rule, but, like, it's the ironclad rule of Garcetti, right? It was, hey, you're on the clock, you're in class, you don't get to do it. Well, hold on, are trans people, uh, potentially existing? I can't have that.

0:45:38 Caroline: Yep. Yep.

0:45:49 Caroline: Right, disconcerting.

0:45:51 Thomas: That's frustrating. Is that on appeal somewhere? Or is that a done deal?

0:45:51 Caroline: It Virginia Supreme Court, I don't, you know, do you want the Supreme Court to reconsider that decision?

0:45:59 Thomas: Wow. Don't know.

0:46:02 Caroline: I mean,

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0:46:06 Caroline: Yeah, it's We're going back to, so we've just sort of walked through what current rules are, and the current rules, if followed with any degree of honesty, seem to indicate that teachers can't challenge these bans because it's government, their speech, their teaching is government speech, because it is pursuant to official duties, whereas students, students might be able to challenge these bans if the Supreme Court prior decisions could be understood to say that school districts have a lot of latitude in determining curriculum, and I should say they did emphasize that, but there is a limit. It, they can't do absolutely anything.

0:48:20 Thomas: Sure.

0:48:20 Caroline: And they do violate the free speech clause if they're censoring material purely because they're hostile to the idea. If that's what's motivating their censorship, then the students might have a claim. I don't think it would be that hard to construct an argument that that's, what's going on with the critical race theory bans and the don't say gay laws.

0:48:30 Thomas: Okay. Yeah.

0:48:43 Caroline: Again, it's not a slam dunk either because the Court case was talking about books in the library rather than decisions about the curriculum. And it's not a slam dunk because it was a plurality opinion, which means there were four judges who sign on to the reasoning as opposed to five. And finally, it's not a slam dunk because the government speech doctrine has been since those decisions were made, that's the existing state of the law. And again, most are actually decided under the due process clause, so it's just why you haven't seen a lot of decisions really addressing these issues. OK, so, so this is why I say the government speech doctrine ate my class, like, ate my glass, in terms of you can't review these laws. It's like you can't, it can't even, like, the courts can't even think about them if it's government speech, right? It is government speech, the teachers can't challenge it. If curriculum decisions are government speech, then students can't challenge it, and there is a real risk that they might be labeled as government speech, and certain courts because

0:49:52 Thomas: I've got sorry. I know you explained this, but so why, if it's government speech, why couldn't the students couldn't challenge it? I thought it was, they might be able to.

0:50:01 Caroline: They might be able if you use the existing rule and it's not considered government speech, because you can mobilize, courts have said you can't challenge the decision. This is the government speaking, the government has absolute control over its own speech, right? Again, the government speech doctrine, it's not completely crazy, as you sort of pointed out, the government, in order to govern, has to be able to control what it says and doesn't say, right? If you want to encourage people to get vaccines, you don't want the nurses administrating the shots to tell people the vaccines will give them autism, the should be able to control its own speech. There's somewhat sound, but, and this is where I finally get to my sort argument. Government speech doctrine is too big. It covers too much. It has a couple of very serious blind spots. It has a blind spot with regard to teacher challenges. And it has blind spot with regard to student challenges. I don't have to spend too long on this, but, so is generally considered either private speech, or it's considered government speech.

If it's private speech and the government censors that private speech, then it's presumptively unconstitutional. It triggers what's known as strict scrutiny, which means the, the law is unconstitutional unless the government has a really compelling justification for the law and has no other way of accomplishing the law. On the other hand, if it's government speech, then there's no free speech review at all. As we said, the free speech clause doesn't apply.

My first critique is that a lot of things are called government speech that are actually a mix of government and private speech, that's the first problem, is that a lot of speech, it's not purely private, it's not purely government, it is actually a mix of private and government. But if you call it government, then it has no free speech protection. One example, arguably, is teachers teaching in the classroom, room, right? Give the same curriculum to 10 different teachers and it'll all be slightly different,

0:50:08 Thomas: Oh, okay, that's right.

0:50:44 Thomas: All Oh yeah, it'll be way different.

0:52:25 Caroline: Right, because the teacher as an individual infuses the curriculum with their own self-ideas, speech, right. They're the ones teaching it. They are the ones engaging with the students. They re the one asking and answering questions. They r the one coming up with sort of, you know, learning exercises. So the same class taught by different teachers might be quite different. I don't actually think that's the best example, but that's one critique I'm making here, is categorizing speech pursuant to official duties as only the government speaking overlooks the way that the teacher as a person is also speaking. And so it probably should more likely be considered mixed speech than purely governmental speech. Let me give you another example. A Title X doctor who's works for the government in providing-related services, right? Gag rule that doctors who receive Title X funding funding cannot tell their patients about abortion.

0:53:32 Caroline: Rust v. Sullivan was actually the first government speech case because the Supreme Court eventually said, actually, that doctor's speech is the government speech, and therefore they can't challenge it on free speech grounds. Of of course, you you're a poor woman going to your doctor, and you ask about abortion, and they read you some script from the government, are they going to understand that's the government giving this message?

0:53:31 Thomas: Right. Wait,

0:53:59 Caroline: Or are they gonna think, oh, my doctor doesn't think that I should that I'm a good candidate for abortion? And should you be forcing the doctor to violate their professional ethics by not providing comprehensive medical care? Actually, I'm, but but my point is, Because kind of speech, where it's a private doctor who's receiving government funds, that could be considered a mix of both government and private speech. Again, that speech could not be challenged. The doctors could not challenge that on what they tell their own patients. Here's another example, a little more frivolous, but maybe a little easier to see as an example of mixed speech. Specialty license plates.

0:53:42 Thomas: Yeah right right hmm yeah

0:54:40 Caroline: Do you know what specialty license plates are? Do you have one? We have one. We're in Florida. They have a big program. We have a Save the Manatee plates. So these are license plates that they're issued by the state. State owns them. It has the state ID for your car on them. But like choose the specialty license plate, you pay extra money for it, you put it on your car, right? Specialty licenseplate has characteristics of both government speech and private speech, a right, specialty license plate, I think, is probably a great example of something that should be considered not purely private, not purely governmental, but actually a mix of private and governmental. It's governmental because it's a government ID. The government manufactures it. The government is in control of the program. But it's private because the private car owner decides which one they want. They're the one paying

0:54:42 Thomas: Yeah sure no no oh

0:55:44 Caroline: For it. They're the one putting it on their own private car, So right? It you call it government speech, then the government can censor license plates. Like, more specifically, and I must confess, I originally got into this when I was working at the ACLU Reproductive Freedom Project, and there were several states that were issuing issuing pro -life license plates, but they wouldn't issue pro -choice license plates.

0:56:13 Caroline: And ACLU Reproductive Freedom Project challenged that on free speech grounds, saying you're censoring your viewpoint just because you don't like it, and you're not allowed to do that. Because now, if you're in a state with pro -Life plates and not pro -Choice plates, you're going to work around and you're going to think, oh, everybody in this state is pro -life and there are no pro -choice people because I don't see any pro-choice license plates because people are going to identify the license plates partly to the people of the state. And you're going to think, oh, there's no pro choice people here, which has been censored and distorted the marketplace. It's not completely government speech. This also has private components. So, so again, argument is that often speech that's called government speech that has no free speech protection is actually a mix of private and government speech and should have some free speech protection. So in another paper I argued it shouldn't be the strict scrutiny of private, privates speech, it shouldn't be the no scrutiny of government speech, it should probably be intermediate Yes.

0:56:11 Thomas: Wow yeah yeah right intermediate scrutiny yeah

0:57:16 Caroline: Right, that would make sense. You have a little government, a little private, so it's not presumptively unconstitutional because the government still has interest in it because the government's also speaking. But not only the the government is speaking, also a private individual is speaking, and the free speech clause is supposed to protect the speech of private individuals. And so a lot of things that are categorized as either private speech or public speech is really better conceived of as mixed speech and should be treated accordingly. And potentially, teachers at school are one of those that should not be considered pure government speech if it's pursuant to official duties, but maybe closer to mixed speech. That's not the main argument I make in the paper about the overreach of the um speech doctrine. Yes, other way that the government speech doctrine overreaches is that when it decides whether something is government speech and therefore outside of free speech protection, it only looks at the speaker and not at the audience, when the free speech clause is meant to protect both speakers and audiences.

Under this government speech doctrine approach, the argument seems to be, well, if the government is speaking, then there's no private speaker and there are no free speech interests implicated because there's no private speaker. Seems It that the only thing they remember the free speech clause protects are speakers, but there are still private audiences. And so even with government speech, even assuming there is only the government speaking, if are private audiences in certain circumstances, that speech should still be subject to some kind of free speech review. And

0:58:00 Thomas: Sure so Interesting. Yeah.

0:59:07 Caroline: Argue that these curriculum bans are an example when even assuming the government and the government alone is speaking, there still should be some free speech review of restrictions on it because of the free speech interests of the students as audiences. It.

0:59:27 Thomas: Makes sense. So therefore will never be the law. Yeah?

0:59:30 Caroline: That, I mean, again, it's the government speech doctrine ate my class because it is too big, it's covering too much, it's ignoring the fact that there may be still private speaker interest in speech, and it's completely ignoring the act that the free speech clause is as much much about protecting the flow of information to audiences as it is about protecting the speaker's right to articulate ideas in the first place.

1:00:02 Thomas: Yeah I really like That that. Last point. That Yeah makes sense to me. So the class is still having some consideration in there and not just being shut down because of government speech. Now, is the sake of argument, is there some thought that like, oh, no, there's some other recourse for this in terms of like, shaping you the curriculum and your school board and the blah, blah, bla. Like, is that supposed to be is that part of the logic maybe or gotcha?

1:00:24 Caroline: Part of the logic is, and this is what the Supreme Court has to say about the fact that the Free Speech Clause does not protect government speech. It says, nonetheless, the government is accountable to the electorate. So if you don't like what the government is saying, you can, right, if you don't, like, the decisions your school board is making, you can vote for a different school board who are going to make different curriculum decisions.

1:00:52 Thomas: What do you think about that? That because off the top of my head, it's like, sure. But I mean, there seems like there are all kinds of things. We don't just let that be there because that's kind of if any if the government if a government official does anything wrong, that's the remedy. But like also that we don't like them doing certain things.

1:01:01 Caroline: Exactly. Exactly. Right. So the first answer is the one you gave is political accountability is not the answer when you're dealing with a constitutional violation. Violation, because the whole point of a constitutional right is that you have it whether or not you can get a majority of people to agree to give it to you, right?

1:01:17 Thomas: Yeah. Yeah, to vote on it. Yeah no no kidding. I like the way you put it better.

1:01:28 Caroline: That's the whole point of A Constitutional Right. You are guaranteed it. It is not put to review. It is not dependent on the majority. And so to say that the answer to a potential constitutional right violation is political accountability doesn't cut it. In addition, one of the whole point of school, we just mentioned it earlier, but part of school is to help you for citizenship.

1:01:58 Thomas: Sure.

1:01:58 Caroline: One of ways it prepares you for citizenship is by exposing you to a wide range of of thinking and by helping you develop certain critical thinking skills. These kinds of bans deter both of those things. And so these bans, they not only undercut sort of the goals of the public schools altogether, but they also clash entirely with one of the goals of the Free Speech Clause itself, which is to make sure people are exposed to the widest variety of opinions and viewpoints, presuming they're age appropriate, right? You can limit it for legitimate pedagogic reasons, but not just because you don't like the ideas. And so if students are never exposed to these ideas in the first instance, then they won't know that just going to accept the government's indoctrination. This, this is basically how indoctrination works, right, the government tells you something, you're not exposed to alternatives, so you end up agreeing with the government because you just don't know better. That's what's going on in schools. That's exactly what the Free Speech Clause is supposed to prevent.

1:02:39 Thomas: Yeah. Yeah, here, here. Excellent. I know there's so much more in the paper, obviously. And, uh, Oh, we'll keep an eye. You said this was a due to be published.

1:03:17 Caroline: Should be coming out I the next month, and

1:03:19 Thomas: Right. Well, Carolyn Mala Corbin, it is always a delight. I'm excited now for the next episode where we're talking about, uh, the, now I've already blanked on specifically what it was involving.

1:03:28 Caroline: Clause challenges to abortion bans. There's

1:03:30 Thomas: Oh, oh. Oh. Abortion bans. Okay, yeah. Cause there's a few that were really, there's the the intelligent design and religion thing we mentioned, there was lots more to talk about. Yeah.

1:03:38 Caroline: Yes, there's Definitely more, I mean,

1:03:40 Thomas: A pleasure. Oh, I want to make sure to give you, of course we'll put that link to the paper in the show notes. Is there anything else you want to send listeners to, or plug, or

1:03:48 Caroline: I'm writing another related paper about this that I can send you the link when I finish it, if you like, but for letting me come back.

1:03:52 Thomas: Excellent. Of course, I'd love it. So thank you so much for giving us your time, we really appreciate it. Course, talk soon, awesome.

1:04:00 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.