Appeals court says city officials did not restrict speech in ordering removal of “family values” flyer

 

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Oakland, CA, March 7, 2007 - In an important ruling for government employers facing pressure by anti-gay organizations trying to promote their views in the workplace, the U.S. Court of Appeals for the Ninth Circuit has upheld a federal judge’s decision that the City of Oakland acted legally when it ordered the removal of a flyer posted by City employees espousing “natural family” values that could be considered hostile to gay and lesbian workers.

Law firm Morrison & Foerster LLP represented the City of Oakland, along with its former City Manager, and its head of economic development, who were both named defendants in the lawsuit, Good News Employee Association v. Hicks.

The suit stems from attempts by two City workers to form a “Good News” employee group in 2003 that advanced anti-gay, pro-“family values” views in the City workplace.  As part of their campaign, the workers distributed flyers in City offices urging fellow employees to “preserve the integrity of the workplace with respect to the natural family, marriage and family values.”  An openly lesbian city staffer felt threatened and harassed by the flyers and related actions taken by the two workers to voice their anti-gay sentiments.

Concerned about the inflammatory message behind the “Good News” campaign, Oakland City officials ordered the removal of the flyer articulating the group’s views.  The Good News workers then filed suit, asserting that the City had violated their federal and state First Amendment rights to free speech, freedom of assembly, and freedom of religion.  The workers also challenged Oakland’s broad anti-discrimination ordinance, claiming that the protections granted by the ordinance to gay and lesbian city workers are unconstitutional.  In all, the workers pleaded ten different causes of action against the City and the two defendant officials, Robert Bobb and Joyce Hicks.

In the federal district court, Morrison & Foerster succeeded in dismissing nine of the plaintiffs’ ten counts, leaving only the First Amendment claim.  The federal court upheld the constitutionality of Oakland’s anti-discrimination policy and granted complete summary judgment for the City, holding that the “Good News” flyer was not protected speech in the workplace.

In this week’s Ninth Circuit ruling, the three-judge panel said public agencies can indeed “curtail” certain kinds of speech in the workplace based on “legitimate administrative interests.”  Any interference with an employee’s freedom of speech was outweighed by city officials' need to maintain “the efficient operation of their office,” the court said.

“The Ninth Circuit’s ruling has immense impact given the concerted effort of anti-gay activists to impose their discriminatory views in public workplaces around the country,” said Morrison & Foerster litigation partner Angela Padilla, who argued the case on behalf of the City of Oakland and Mr. Bobb and Ms. Hicks.

“Fortunately, the Ninth Circuit affirmed the right of the government when acting as employer to restrict discriminatory speech that disrupts the workplace.”  Ms. Padilla noted that the City took no adverse action against the Good News workers, who were invited to resubmit a new flyer “subject to certain editorial constraints.”  

“As the Ninth Circuit found, in taking down the flyer, City officials properly struck the proper balance between the free speech rights of the Good News members and the rights of gay and lesbian city workers to be free from harassment in the workplace,” she said.

In addition to Ms. Padilla, the City of Oakland was represented by Morrison & Foerster litigation associate David Melaugh.