First, the facts. A group of Christian, African-American public employees in Oakland were offended by the posting of a "Coming Out Day" message on the City forum bulletin boards, as well as via email. So a few months later they created the Good News Employee Association (GNEA) and created a flier that promoted discussing "the natural family, marriage and family values." (paraphrasing roundly) They were told to remove the flier after a lesbian employee complained that the message was homophobic. The administrator decided to do so based on her interpretation of Administrative Instruction 71 (AI-71) which bars "discrimination and/or harassment based on sexual orientation." They were apparently told that they could change the flier to make it inoffensive but they decided to file suit instead. The 9th Circuit, in Memorandum 05-15467, decided their appeal was without merit.
From the Right comes George Will asserting this represents "prior restraint" of free speech about something as innocuous as some disagreement about religious ideas about morality. This guy takes another route, suggesting that the United Nations is behind all of this, working quietly to undermine free speech.
In reality, though, the courts have rightly found that governments have a legitimate interest in preventing hostile speech in workplaces, with the only real question being whether or not certain acts cross the line from merely bad taste to truly offensive. A raving racist can be fired after being warned to stop it or, perhaps, even without warning. This isn't viewpoint discrimination, just restrictions that are designed to get the business or agency aligned with the goals of getting work done.
So we can ask several questions, here.
First, was the GNEA flier symmetrical with the Coming Out Day flier vis-a-vis hostile speech? I think not. The GNEA flier was implying that homosexuality is unnatural while the Coming Out Day flier was not implying anything about Christians, Jews, Republicans, mice, lampposts or aviators--at least not according to 05-15467 and all of the other resources I can find.
Next, could the GNEA employees legitimately complain that the Coming Out Day flier was singling them out for discrimination under AI-71? It doesn't appear so. By promoting homosexuality, the authors of the flier were not denigrating GNEA employees. Thus, they have no specific claim against the Coming Out Day flier.
Finally, did the act of implying that homosexuality is unnatural cross the line of hostility? Just barely to my mind. Implication is not the same as direct hostility. There was a complaint against it, however, and an attempt to get GNEA to modify the flier. The fact of a complaint means that the administrator needed to evaluate his or her obligations under AI-71.
What might have happened if the Oakland government had chosen to side with GNEA and told the lesbian employee that they consider such a flier only modestly and indirectly offensive? Under those circumstances, they might have faced a lawsuit that the civil rights of the lesbian employee were violated by a hostile workplace. Suddenly the free speech issues get transferred to a question of whether the administrators allowed a hostile workplace and what remedy is appropriate if they did? So we would get a substitution of "post hoc litigation" for Will's "prior restraint." That's largely the way that sexual harassment is handled these days, creating an industry of trial attorneys who specialize in the topic.
George Will suggests that the Supremes will take and overrule the 9th Circuit because they are so terrifically out of touch with reality. I don't think so. Instead, I think the Supremes will affirm the decision and stay out of the fray, supporting the notion that judgment was used by the administrator, and that judgment was not out-of-line with existing jurisprudence or common sense.
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