I don't know, Aylee. When I worked for the feds, they definitely had rules for what you could and could not do and say at work. When he is in his office, he is representing the University as an employee. I still think it was an overreaction, but not unconstitutional, unless you know of some case law or something that says otherwise.
Change it around a little bit. What if it was a blatantly racist poster? Still NOT SHINY?
Not sure how current this is, but: .
While the First Amendment protects freedom of expression, American courts have long agreed that free speech is not absolute. Defamatory statements are a form of expression, but the law prohibits them. The same can be said about obscenity.
Speech may be subject to other limitations based on the setting. Many forms of expression that enjoy constitutional protection in one context may not be so protected in another.
The most prominent example of such a limitation is the law regarding speech in the public workplace. The First Amendment has been interpreted to hold that governmental entities may not take official actions abridging freedom of expression.
Accordingly, federal and state courts have ruled that public postsecondary schools may not fire or otherwise discipline employees for their lawful exercise of First Amendment privileges. The right to speak one's mind on the job, however, is subject to certain restrictions.
Two landmark US Supreme Court cases guide public employers on what is protected speech for their employees, and what sort of speech might serve as a legal basis for employment discipline.
Under Pickering v. Board of Education, a public employer wishing to discipline an employee over statements the employee has made in the workplace must "balance the employee's interest, as a citizen, in commenting on matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees."
In 1983, 15 years after the Pickering decision, the Supreme Court clarified what might constitute "matters of public concern" in Connick v. Myers. In reviewing the dismissal of a federal prosecuting attorney for circulating internal memoranda critical of her superiors, the court, through Justice White, noted that whether an employee's statement is a "matter of public concern must be determined by the content, form, and context of a given statement . . . .
"When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment."
Two recent cases out of the US Court of Appeals for the Tenth Circuit shed some light on how these rules might be applied in a college or university setting.
Following years of repeated challenges against policies at Eastern Wyoming College by a longtime professor, the school suspended the professor without pay. The professor had criticized, among other things, the college's reduction in force procedures, and claimed that the college's president had held himself out as a "doctor" when he in fact did not possess a doctoral degree.
When the professor sued the college over her suspension, the court held tthat these issues were indeed matters of public concern and could not lawfully be the bases of employment discipline. Concerning her attack against the RIF procedures, the court valued the professor's "well-informed perspective on expenditures of public funds."
On the president's misrepresentation of his credentials, the court opined that the integrity of a college president could "obviously impact the social and political life of the community."
By contrast, the same court upheld the denial of a tenure application at New Mexico Highlands University over charges the professor had leveled against that institution. The professor had openly criticized a University regent over failing to comply with policy in selecting a new president, as well as a proposed academic reorganization.
The court rejected the claim that these subjects were matters of public concern. Rather, the court characterized the professor's statements as challenges to the school's internal structure and governance, and held that "matters of this nature rarely transcend the internal workings of the university to affect the political or social life of the community."
No doubt each case of employment discipline over what the employee says in the workplace is unique. In determining whether discipline is appropriate, however, a public employer would be well advised to consider the employee's offending language in light of the Pickering and Connick holdings.
