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No First Amendment Right to Display Religious Posters in Classroom

Speech made by government employees who are acting in their government capacity is not protected under the First Amendment.

December 6, 2011

Bradley Johnson was a high school math teacher for the Poway Unified School District near San Diego. In 2006, Dawn Kastner, his principal, noticed that Johnson had hung two 7-by-2-foot banners in his classroom, one stating "In God We Trust; One Nation Under God; God Bless America; God Shed His Grace on Thee" and the other stating "All Men Are Created Equal, They Are Endowed by Their CREATOR."

After Johnson refused to remove or alter the banners, he was instructed to follow the district's rules that teachers "follow the requirements on prohibited instruction as contained in the California Education Code" and "distinguish between teaching and advocating, and refrain from using classroom teacher influence to promote partisan or sectarian viewpoints."

Johnson sued the school district for declaratory and injunctive relief under the First and 14th amendments and Article I, sections 2 and 4 of the California Constitution.

The U.S. District Court for the Southern District of California granted summary judgment in favor of Johnson, finding that the school district had unlawfully curtailed his speech because of his viewpoint.

On appeal, the U.S. Court of Appeals for the 9th Circuit in Pasadena, California, reversed the district court and ordered that it grant summary judgment in favor of the school district. The 9th Circuit found that Johnson was speaking as a government employee, not as a private citizen, because his speech owed its existence to his teaching position. Johnson "speaking to his class in his classroom during class hours" was clearly within the scope and content of his job duties. Therefore, the school district could restrict his activities. Johnson v. Poway Unified School District, 9th Cir. No. 10-55445 (Sept. 13, 2011).

IMPACT: Speech made by government employees who are acting in their government capacity is not protected under the First Amendment.

James E. Hall, Mark T. Kobata and Marty Denis are partners in the law firm of Barlow, Kobata & Denis, with offices in Los Angeles and Chicago. To comment, email editors@workforce.com.

Workforce Management, December 2011, p. 8 -- Subscribe Now!

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.