Actually, I didn't mean this as a chilling effect argument, in the sense that restricting constitutionally valueless speech X (e.g., false statements of fact) may deter even constitutionally valuable speech Y (e.g., true statements that the speaker fears might be thought false by a jury), though such an argument would indeed be interesting.
Rather, my argument was that one can't lightly dismiss the religion-and-the-law consequences of allowing the discipline of Buell under Pickering, even though Buell wasn't making an overtly religious argument. Such a decision allowing the discipline of Buell would either rest on the judgment that (1) speech that isn't overtly religious is less valuable under the Pickering balance than speech that is overtly religious, or (2) both overtly religious and nonreligious would be similarly subject to discipline. I assumed that option (1) wasn't right, though I'd be happy to discuss this further; my assumption was that First Amendment law shouldn't treat expressly religious speech as more protected under the Free Speech Clause than other speech, since that would itself pose Free Speech Clause or Establishment Clause problems. I therefore concluded that option (2) is what would be adopted - which is why the discipline of Buell, who wasn't speaking expressly religious, would also apply to any other teacher's "be[ing] fired even for more expressly religious expressions of his anti-same-sex-marriage views. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Friday, August 19, 2011 1:40 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post This is essentially a chilling-effect argument. Eugene, is your position simply that Pickering analysis should look beyond the individual interests of the speaker and consider such potential chilling effects on others who hold similar views? Or are you arguing that there may be some reason to think that religiously motivated anti-gay speakers are inherently more likely to be chilled, and thus deserve more solicitude, than others who speak on "prominent public controversies"? It should be noted that, P.C. school administrators aside (and cf. the 7th Circuit Nuxoll case, which upheld the in-school right to wear gratuitous anti-gay slogans on t-shirts) religiously motivated opponents of gay rights on the whole exercise their speech and political rights quite robustly and effectively. Are you suggesting that, all other things being equal, we should nonetheless give special solicitude to the chilling effects on their speech? Should we be equally concerned about chilling effects on the vocal gay-rights Unitarians in a rural Indiana community, or anyone else who risks employer retaliation for speaking out in a way that's unpopular or socially disapproved in their particular local context? Steve ________________________________ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 19, 2011 9:37 AM To: Law & Religion issues for Law Academics Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post I agree that as a doctrinal matter Pickering is the rule, for speech about same-sex marriage as well as for speech about other topics. But Pickering's "usual public employee speech framework" requires an inquiry into the magnitude of the "the interests of the teacher, as a citizen, in commenting upon matters of public concern" - and, I take it, the interests of society more broadly in allowing such speech (cf. United States v. National Treasure Employees Union). The question is how we should evaluate this interest when it comes to speech on such prominent public controversies. As to the link to religion: One question in the debate about gay rights is the degree to which gays and lesbians will be free to build their families, and have access to government-provided benefits connected to marriage. (I actually support such claims.) But another is the degree to which those who belong to religious groups that oppose same-sex marriage and oppose homosexuality will find that their expression of their religious beliefs - whether cast in expressly religious terms or not -- is not only seen by others as "rather crude garden-variety bigotry" but is also used as a basis for being fired from government jobs, being disciplined by their K-12 schools or colleges, being subjected to potential civil liability for "hostile work environment" harassment. After all, I take it that a public schoolteacher who sees Buell disciplined or fired for his speech would likewise be reasonably worried that he might be fired even for more expressly religious expressions of his anti-same-sex-marriage views, no? Such religious expression may be no less potentially disruptive than Buell's expression, and in some situations may be more potentially disruptive, for instance if the teacher says this in a medium that is intentionally opened to all potential listeners (e.g., a rally, a letter to the editor, etc.). To be sure, many of the people who oppose same-sex marriage do so for nonreligious reasons. (Opposition to same-sex marriage is more prevalent among religious people, but even some nonreligious people take that view.) But the law-of-government-and-religion link, it seems to me, is the risk that particular religious groups will find their expression of their religiously motivated views (again, whether expressly cast in terms of religion or not) will lead to firings and more. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Friday, August 19, 2011 11:25 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post I wasn't meaning to imply that the analysis was easy, just that familiar doctrinal machinery exists in the form of the public employee speech doctrine. If the teacher where to sue alleging violation of his First Amendment rights, are you implying that he would/could/should make some argument other than under Pickering? Same-sex marriage is surely one of the most prominent public controversies, but are you suggesting that somehow takes it out of the usual public employee speech framework? (You posted this on a religion list, but is there any indication that the teacher was speaking in any religious context or that some question of religious liberty is implicated? Other than a generic reference to "sin," the comments reported appear to be rather crude garden-variety bigotry, not religious speech.) I am sympathetic to the teacher and his speech rights and, based only on the reported facts, I think the school's action is open to serious question. The difficulties Eugene describes seem to be inherent in the doctrine the Court has provided, not unique to this particular problem. And I believe there is "particular danger or impropriety in government practices that essentially pressure government employees to shut ... at least if they are speaking on one particular side" when we're talking about any topic of public concern, not just this one. Steve ________________________________ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 19, 2011 8:43 AM To: Law & Religion issues for Law Academics Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post I'm not sure that there is such a thing as "a straightforward Pickering ... analysis." "Balanc[ing]" "the interests of the teacher, as a citizen, in commenting upon matters of public concern" with "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees" strikes me as generally far from straightforward: It requires "balancing" two hard-to-quantify things that, on top of the difficulty of quantification, are different enough to be largely incommensurable. But beyond this, it seems to me that the particular problem here is: How do we evaluate "the interests" of citizens "in commenting upon matters of public concern" in a situation like this, where the issue - same-sex marriage - is one of the most prominent social, religious, and political topics of our time? Is there particular danger or impropriety in government practices that essentially pressure government employees to shut up on this sort of topic, at least if they are speaking on one particular side of the topic? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Friday, August 19, 2011 5:41 AM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post Doesn't this call for a straightforward Pickering/Connick analysis? I'm assuming Garcetti wouldn't apply, unless the teacher used Facebook to communicate officially with students. I lean strongly in favor of protecting the teacher's speech which, crude as it was, was clearly on a matter of public concern. So isn't the key inquiry whether the employer can demonstrate that this particular speech was harmful to the good order and discipline of the school? Seems to me there would be lots of facts we'd need to know. Was the post readable by anyone or just the teacher's Facebook friends? What's the climate for gay students at the school? Could it be argued that this post realistically (without the fuss caused by the suspension itself) would have caused harm to gay students or disrupted the school generally? Steve Sanders University of Michigan Law School On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: Any thoughts on this? http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/ Lake County Schools Communications Officer Chris Patton said school officials received a complaint Tuesday about the content on Mount Dora High School teacher Jerry Buell's personal Facebook page .... CNN affiliate Central Florida News 13 reported that a status post on it said, "I'm watching the news, eating dinner, when the story about the New York okaying same sex unions came on and I almost threw up." Patton would not confirm the content of the post, but he said Lake County officials are taking the matter very seriously. "We began to review the code of ethics violations immediately and yesterday afternoon temporarily reassigned the teacher pending the outcome of the investigation," Patton told CNN Thursday.... The newspaper said that in the same July 25 post, Buell said same-sex marriages were part of a "cesspool" and were a "sin." ... Buell, a teacher for more than 26 years [and a former "teacher of the year"], served as the Social Studies Department chair at Mount Dora and taught American history and government, according to the high school's website.... _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. 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