First off, let's present the case in a neutral fashion. I want to first get your reaction without knowing who's ox is getting gored. That way, you'll approach the issue as you should: without a political reaction one way or the other. What constitutional law doctrine makes sense, regardless of which group stands to practically gain or lose as a result of that underlying theory.
Let's set forth two noncontroversial backstops at the outset. First, as a general matter, under the First Amendment, employees of the government can't be told what they can or can't say outside of the work setting. If I want to say that Trump (or Obama) is awesome, or that our education system is terrible (or fantastic), or vote a certain way on my own time and outside of work, the state can't regulate that. Free speech.
On the flip side, as a government employee, the government can generally tell me what to say while I am doing my work. So if I'm a math teacher, the government can tell me to tell my students that two plus two is four, even if I'm convinced it's five. And, at least in the elementary and high school setting, if I am a teacher and the state makes me say that the Union won the Civil War and rightly so (to abolish slavery), the First Amendment doesn't allow me to tell my students instead that the South either won or should have won. The state's paying for my speech, so they can tell me what to say.
That's the law, and rightly so.
The question that the Ninth Circuit confronts today lies somewhat in the intersection of those two bookend principles.
Imagine that you're a middle school teacher, or guidance counselor in the same setting. You want to put up a poster, or want to prominently display a particular book in your very small office. one that your middle school students will definitely see. I'm deliberately not going to tell you what that poster or book is about. Maybe it's Martin Luther King. Maybe it's Trump. Or Che Guevara. Ditto for the book. Maybe it's Das Capital, or the Fountainhead, or Mein Kampf. Shouldn't matter. It's something that's clearly on a political, hot-button issue, and that definitely expresses an opinion on it. An opinion that some people in your workplace, including students, will perhaps like, and that other people will most definitely not like.
Do you have a First Amendment right to put up that book or poster? Or can the state tell you that's not appropriate and make you take it down?
That's today's case. One that results in both a majority opinion and dissent.
Which side are you going to take? Without knowing what the book is about.
Because -- and this will perhaps not surprise you in the slightest -- once I tell you which Ninth Circuit judges are in the majority and which judge is in the dissent, you'll simultaneously be able to accurately predict what type of material -- left- or right-wing -- we're actually talking about in this case.
So before you know that, what do you think? Is the state allowed to regulate what types of hot-button political material, related to but not "officially" part of the curriculum, middle school teachers or counselors prominently display in their student-facing office?
Got your answer yet?
Okay. So, in the present case, the hot-button issue involves transgender rights. The state wants to stop a middle school counselor from prominently displaying in his office, right behind his desk, books that are fairly clearly anti-transgender: He is He and She is She, alongside a book called Johnny the Walrus that has the same theme (namely, that Johnny calling himself a walrus doesn't make him one).
Judges Owens and Sung hold that's permissible; that because the counselor is on the state's dime and in the state's workplace, they're paying for his speech, and they can tell him to take the books down. Judge VanDyke dissents, saying that the counselor has a First Amendment right to display the books, even if the state (or others in the workplace) don't like the message.
Who's right?
As a matter of precedent, the majority has the better of the argument. There are a fair number of Ninth Circuit cases in analogous settings, all of which hold that the state can regulate on-campus speech by government employees. Judge VanDyke argues in dissent that the underlying law changed once the Supreme Court decided Kennedy in 2022, which was a freedom of religion case that held that a high school football coach was allowed to say a prayer on the field (alongside students) after the game. But the rule is that unless an intervening decision is "clearly irreconcilable" with circuit precedent, you still have to follow precedent, and I don't think Judge VanDyke makes a persuasive case that the Court's religion precedent necessarily overrules the circuit's free speech holdings in this area.
Precedent aside, though, ponder what the correct rule should be. Because there are serious dangers, in my opinion, on both fronts.
On the one hand, I really don't want teachers entirely free to express their off-base personal opinions on hot-button topics to middle school students. The state gets to -- and should -- regulate that. If you want to express your personal opinion on your own time about why America should be an all-white nation, or how the Jews really control the world, go ahead, you have that right. But, sorry, the state's allowed to -- and should -- say that you've got to keep those opinions to yourself when you talk about slavery or World War II to your students. Maybe -- maybe -- if the students ask you for your personal opinions, you can tell them what you think (or, at a minimum, tell them you're happy to talk to them outside of school). But you're not entitled to shove your personal opinions on hot-button topics down the throats of middle school students on the state's dime; the state can let you if it wants, but it can also regulate that if it so chooses. There are serious dangers if the law is otherwise.
At the same time, I'll readily concede that this position has serious downsides as well. If I'm a middle school teacher -- and there are lots of them -- it's a non-trivial harm if the state's allowed to force me to tell my students that President Trump is objectively the greatest president in history, that the Civil War was entirely about state's rights, or that the Twenty Second Amendment really only bars presidents from being elected to two consecutive terms. During all of which, potentially, I am compelled to wear a red MAGA hat and a pin that says "Trump 2028." In a different era, perhaps these would be viewed as absurd hypotheticals. No longer, I fear. Sure, I could always quit my job and teach at a private school, or in a different state. (Assuming, at least, that the federal government didn't elect to withhold funds from, or actively sue, institutions that failed to follow federal guidelines on these fronts -- another previously-absurd hypothetical that is now anything but.) Overall, a rule that allowed the state to entirely regulate what posters or books or words I employ during my teaching would have consequences, ones that could potentially be seriously abused.
Judge VanDyke's dissent raises similar points, albeit in a predictably partisan fashion, with references to "woke" principles and the like. In this regard, the majority opinion has a point when it argues that the dissent, "despite its length, is cheap cotton candy: a lot of fluff but not real substance." (Alongside a footnote that critiques Judge VanDyke for quoting Justice Powell's plurality opinion in Bakke, which, notwithstanding Judge VanDyke's response, really does have nothing whatsoever to do with today's result.)
But, nonetheless, ponder the overall point. What's the right balance here? What's the state's legitimate role in regulating the workplace, student-facing speech of middle school government employees?
I'll make only one more point. Judge VanDyke argues in his dissent that "the school officials’ real interest in censoring Mr.
Theis’s personal speech in this case is not efficiency or anything
similarly benign, but rather something much more nefarious: to give
children the false impression that all the adults in the school personally
share the same woke perspective on some or all of the most disputed
questions in our culture today (emphasis in original), saying that's "the reality of what is likely really going on in cases like this."
It's absurd missives like this -- oft-repeated, unfortunately -- that merit justifiable rebuke. In reality, no one -- and I mean, no one -- is going to seriously think that a guy like Mr. Theis (or his ilk) is really in favor of transgender rights because he's not permitting to prominently display anti-trans books in his office. We all have known teachers or others like Mr. Theis in our lives. We all know where they stand, regardless of whether they've got books sitting out on their desks. No one thinks, or even would think, that every teacher in Eastern Oregon (!) personally favors transgender rights just because the state does not allow the prominent display of anti-transgender books or posters in their office.
Anyway, an interesting opinion today. One that I encourage you to seriously ponder. Especially in the modern era.
