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School Can Order Removal of Pride Flags From Classrooms · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
• 0:08
  Speaker 2: Should high school teachers be able to hang pride flags
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  Speaker 2: on the walls of their classrooms or put up pride stickers?
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  Speaker 2: That question became a federal case when three teachers took
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  Speaker 2: a Long Island high school to court for ordering the
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  Speaker 2: removal of pride flags and stickers from their classrooms. The
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  Speaker 2: Second Circuit Court of Appeals answered that question with a
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  Speaker 2: resounding no. The court said the school district neither violated
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  Speaker 2: the teachers' First Amendment rights to free speech nor discriminated
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  Speaker 2: against them based on sexual orientation by ordering the removal
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  Speaker 2: of the flags and stickers. Joining me is First Amendment
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  Speaker 2: expert Timothy Zick, a professor at William & Mary Law School. Tim,
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  Speaker 2: is there a general rule for what can be put
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  Speaker 2: up in public school classrooms?
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  Speaker 3: I mean, there are lots of cases about student speech, right?
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  Speaker 3: So I'm thinking of the Supreme Court has decided a
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  Speaker 3: number of cases about the sort of scope of student
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  Speaker 3: speech rights. So this involves faculty or teachers and their rights,
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  Speaker 3: free speech rights, as they pertain to, in this case,
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  Speaker 3: the classroom, but not the curriculum. But instead, the sort
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  Speaker 3: of blackboards or bulletin boards and walls and doors and
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  Speaker 3: those sorts of things and what they put on them,
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  Speaker 3: there is no hard and fast rule for that. Certainly
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  Speaker 3: there's no Supreme Court case that's about these specific facts.
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  Speaker 3: So what the Second Circuit is doing is it's applying
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  Speaker 3: a sort of doctrine that applies to the rights, the
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  Speaker 3: free speech rights of public employees generally. And these are
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  Speaker 3: high school teachers, math teachers and others. And it's their
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  Speaker 3: speech that's at issue. So that's what the court is doing.
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  Speaker 3: So in some sense, it's, you know, it's addressing a
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  Speaker 3: novel issue. I think in that circuit, even, nothing's pertained
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  Speaker 3: to specifically what goes on doors and the walls of
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  Speaker 3: math classrooms and the like.
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  Speaker 2: The plaintiffs here, the teachers, made several arguments. Let's take
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  Speaker 2: them one by one. First of all, they argued that
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  Speaker 2: the ban violated their First Amendment free speech rights.
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  Speaker 3: Yeah, so they argued that the pride flags, there were
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  Speaker 3: a couple of different versions of the pride flag issue,
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  Speaker 3: were a form of what's called symbolic conduct or expressive
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  Speaker 3: conduct that conveyed their political speech. These are people who
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  Speaker 3: are out as gay individuals. So their argument was, you know,
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  Speaker 3: by forcing us to take these things down, That violates.
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  Speaker 1: Our free speech rights.
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  Speaker 3: And they added, you know, there's a sort of discriminatory
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  Speaker 3: element to this because you're not making people take down
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  Speaker 3: other things from the walls. So you're singling us out
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  Speaker 3: based on, they allege, in their complaint viewpoint. And the
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  Speaker 3: court rejected that argument entirely, rejected all their arguments. But
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  Speaker 3: that one in particular implicates this idea of the speech
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  Speaker 3: rights of public employees. And there's a case called Garcetti.
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  Speaker 3: And that's the Supreme Court case the court's relying on
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  Speaker 3: the most. And in Garcetti, there was an assistant district
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  Speaker 3: attorney who was writing memos for search warrants. And he
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  Speaker 3: came across a warrant that was problematic. And he brought
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  Speaker 3: that to his boss's attention in a sort of whistleblower way.
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  Speaker 3: And he was sanctioned or disciplined for that. And he said, well,
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  Speaker 3: it violates my free speech rights to discipline me for
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  Speaker 3: that speech.
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  Speaker 1: And the court's answer.
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  Speaker 3: Was, When the public employee creates speech as part of
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  Speaker 3: their so-called professional duties, when the speech owes its existence
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  Speaker 3: to the job itself, when they go to work, these
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  Speaker 3: are different ways the court phrased it, when they go
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  Speaker 3: to work and they create speech that they're being paid
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  Speaker 3: to create, like the memo in Garcetti, then the First
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  Speaker 3: Amendment just flies out the window. It just doesn't apply
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  Speaker 3: to that speech at all. So whether you're arguing it's
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  Speaker 3: just a straight up, you know, you're taking down my
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  Speaker 3: protected speech or you're discriminating based on viewpoint, none of
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  Speaker 3: those arguments go anywhere if the speech essentially belongs to
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  Speaker 3: the employer. And that's where the court lands. It says,
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  Speaker 3: you know, that speech on the walls and on the
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  Speaker 3: doors is in essence part of curricular speech. And the
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  Speaker 3: First Amendment doesn't restrict the public employer, school administrators, the
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  Speaker 3: principals when they deal with and restrict that kind of speech.
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  Speaker 3: So that's what happened to their free speech claims, and
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  Speaker 3: everything else just sort of flows from that.
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  Speaker 2: Has the Supreme Court ruled that students have free speech
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  Speaker 2: rights at school?
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  Speaker 1: Oh, yes.
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  Speaker 3: So the court, in a case called Tinker, back in
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  Speaker 3: the 1960s, said that students do not shed their free
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  Speaker 3: speech rights at the schoolhouse gates. And in that case,
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  Speaker 3: the students were wearing black armbands to protest the Vietnam War,
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  Speaker 3: and they were disciplined, punished. for wearing them in violation
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  Speaker 3: of school policy. And the court said you can't discipline
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  Speaker 3: these students. The First Amendment protects their political dissent unless
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  Speaker 3: what they're doing creates a material and substantial disruption in
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  Speaker 3: the classroom or with respect to the school's functions. So
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  Speaker 3: it's clear that students don't shed their First Amendment rights.
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  Speaker 3: And this court, the Second Circuit, says neither do teachers.
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  Speaker 3: We're just saying this speech. in particular, is not protected speech.
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  Speaker 3: And they drew a distinction between the things the teachers
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  Speaker 3: are putting on the walls and the doors and, say,
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  Speaker 3: a pride flag lapel pin or a photograph of their
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  Speaker 3: same-sex spouse. Those, the court said, are likely protected speech.
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  Speaker 3: That's not something the employer owns or has plenary control over.
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  Speaker 3: But when it comes to creating a classroom environment, which
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  Speaker 3: is how the court characterized this speech, the employer controls.
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  Speaker 2: Now, they also claim that they were denied equal protection.
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  Speaker 3: Yeah, so part of that is being singled out based
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  Speaker 3: on the sort of viewpoint of the speech, but they
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  Speaker 3: also allege they were singled out because they're gay. And
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  Speaker 3: the court said there's nothing in the complaint that sort
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  Speaker 3: of sheds any light on a claim of so-called animus.
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  Speaker 3: In other words, you haven't alleged any facts. that would
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  Speaker 3: support the claim that this policy was the result of
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  Speaker 3: or was purposefully discriminatory against the class of individuals.
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  Speaker 1: Based on that characteristic sexual orientation.
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  Speaker 3: So the equal protection claim, they said, is also dismissed,
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  Speaker 3: as the district court dismissed it.
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  Speaker 1: They're just upholding the district court.
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  Speaker 3: Then they made some sort of human rights claims, sort
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  Speaker 3: of discriminatory claims under federal law.
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  Speaker 1: And state law.
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  Speaker 3: And those went the way of this discrimination claim that
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  Speaker 3: I just discussed.
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  Speaker 2: I mean, do you think this is a solid opinion?
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  Speaker 3: I mean, it applies faithfully. I think what the court
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  Speaker 3: said in Garcetti with regard to public employees, I mean,
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  Speaker 3: some might think it's a bit of a stretch to
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  Speaker 3: say what goes on the walls is part of the curriculum.
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  Speaker 3: So it's pretty clear there that, you know, district officials
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  Speaker 3: and others would have control at the high school level,
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  Speaker 3: at least, or elementary school level over what's taught. But
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  Speaker 3: Extending that to what goes on the walls, you know,
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  Speaker 3: some might think stretches things a bit, or as the
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  Speaker 3: court characterized it, creating a classroom environment. I suppose that
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  Speaker 3: in a math classroom, one might expect to see equations
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  Speaker 3: or great figures in math from history or something like that.
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  Speaker 3: That seems to be the sense in which the court's saying, no, no, no,
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  Speaker 3: this speech is all about a classroom environment. When teachers
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  Speaker 3: put things up in the classroom environment, That's being done
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  Speaker 3: pursuant to their job responsibilities. And that is something that
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  Speaker 3: the employer can control. And I guess, you know, if
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  Speaker 3: you think about it, that would make sense. You know,
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  Speaker 3: if that weren't the case, then all kinds of political
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  Speaker 3: speech could go up on the walls, right? You could
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  Speaker 3: have MAGA speech or anti-MAGA speech. And teachers could claim, well,
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  Speaker 3: that's all, you know, part of my political expression. And
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  Speaker 3: so I think pragmatically it's persuasive, right? And probably with
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  Speaker 3: respect to Garcetti too. The one thing that concerns academics
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  Speaker 3: like myself is Garcetti's application to instructor's speech in the
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  Speaker 3: classroom because if Garcetti is taken literally, it would mean
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  Speaker 3: that my teaching and my scholarship are also controlled by
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  Speaker 3: my employer because that's what I get paid to go
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  Speaker 3: to work and do And so in Garcetti, the court
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  Speaker 3: sort of punts that issue. It says we're not addressing
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  Speaker 3: in this case what happens with respect to university professors
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  Speaker 3: or presumably graduate professors who have academic freedom and tenure
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  Speaker 3: and those sorts of things.
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  Speaker 1: They kind of put that aside. This is not that
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  Speaker 1: case either.
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  Speaker 3: These are high school teachers and they don't have the
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  Speaker 3: same protections as university professors. But, you know, it's just
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  Speaker 3: another place where this Garcetti case has sort of shown
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  Speaker 3: up or popped up. And it extinguishes free speech claims.
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  Speaker 3: And to some people, that's disturbing enough.
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  Speaker 2: Is this a unique case, a novel case? Have you
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  Speaker 2: heard of anything similar to this across the country?
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  Speaker 3: I haven't heard anything about walls and doors. But there's
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  Speaker 3: certainly been questions about, you know, assignments that teachers might
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  Speaker 3: give to students or how.
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  Speaker 1: They grade them.
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  Speaker 3: You know, the contours of this kind of doctrine in
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  Speaker 3: the high school and elementary context is.
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  Speaker 1: Just not clear.
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  Speaker 3: So, you know, there are probably some cases, I think
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  Speaker 3: I've come across some cases about clothing or jewelry or
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  Speaker 3: lapel pins. or religious symbols, those sorts of things. But
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  Speaker 3: this is just a sort of unique factual context, I think.
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  Speaker 2: And it was a unanimous decision of the Second Circuit.
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  Speaker 2: Stay with me, Tim. Coming up next on the Bloomberg
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  Speaker 2: Law Show, I'll continue this conversation with William and Mary
• 10:17
  Speaker 2: Law Professor Timothy Zick. We'll talk about the suit against
• 10:20
  Speaker 2: President Trump for making money off a new paid service
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  Speaker 2: offering sneak peeks at his Truth Social posts. I'm June Grosso,
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  Speaker 2: and you're listening to Bloomberg. Two media organizations are suing
• 10:37
  Speaker 2: President Trump over a new paid service at his Truth
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  Speaker 2: Social company that offers early exclusive access to his posts
• 10:46
  Speaker 2: on U.S. policy. The new subscription service was rolled out
• 10:51
  Speaker 2: last month, and it's charging Wall Street firms as much
• 10:55
  Speaker 2: as $ 100, 000 a month to trade off the market-moving posts
• 11:00
  Speaker 2: before others. The lawsuit alleges the service violates two parts
• 11:05
  Speaker 2: of the Constitution, the First Amendment right to access a
• 11:09
  Speaker 2: president's comments on equal terms with other members of the
• 11:13
  Speaker 2: press and public, and the Fifth Amendment prohibition on charging
• 11:17
  Speaker 2: unreasonable conditions for government benefits. Truth Social's parent company, Trump
• 11:23
  Speaker 2: Media and Technology, said selling fast access to traders is
• 11:28
  Speaker 2: common in its industry and that the plaintiffs are just
• 11:31
  Speaker 2: trying to silence the president. I've been talking to Timothy Zick,
• 11:36
  Speaker 2: a professor at William & Mary Law School. The service
• 11:40
  Speaker 2: called Truth API will charge up to $ 100, 000 a month
• 11:45
  Speaker 2: for faster access to the president's Truth Social post. Tim,
• 11:50
  Speaker 2: explain the basis of the suits against Trump for this
• 11:53
  Speaker 2: new paid service.
• 11:55
  Speaker 3: Yeah, they're, you know, putting aside securities laws and other
• 11:59
  Speaker 3: laws that this may violate.
• 12:01
  Speaker 1: The news organizations, the.
• 12:02
  Speaker 3: Nonprofits are alleging in their complaints that that when you
• 12:07
  Speaker 3: offer this kind of early access or exclusionary access to
• 12:13
  Speaker 3: some but not others, you violated their right to receive information,
• 12:19
  Speaker 3: in this case governmental information. So there is under the
• 12:22
  Speaker 3: First Amendment a right to receive, not just a right
• 12:24
  Speaker 3: to speak, and they're invoking that right as news organizations
• 12:28
  Speaker 3: that follow his posts, and some even analyze his posts, right,
• 12:33
  Speaker 3: and so they're making that argument. They're also arguing that
• 12:38
  Speaker 3: the posts that the president puts up on Truth Social
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  Speaker 3: are what are called public forum or a public fora.
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  Speaker 3: And that argument is, you know, you can limit speech
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  Speaker 3: in a public forum, this kind of resource, but you
• 12:52
  Speaker 3: have to meet sort of requirements, right? There has to
• 12:55
  Speaker 3: be some kind of important governmental interest and you have
• 12:58
  Speaker 3: to narrowly tailor whatever restriction you have and leave open
• 13:01
  Speaker 3: ample alternative channels. for receiving the speech, and they say
• 13:05
  Speaker 3: it fails that test, the sort of time, place, and
• 13:07
  Speaker 3: manner test. And then they make a final argument that
• 13:11
  Speaker 3: says this is an unconstitutional condition.
• 13:14
  Speaker 1: It's essentially extortionate.
• 13:15
  Speaker 3: You're making a benefit available, but on an unconstitutional grounds,
• 13:20
  Speaker 3: because the news organizations say we can't afford it, and
• 13:23
  Speaker 3: even if we could, we wouldn't compromise our objectivity and
• 13:27
  Speaker 3: our professionalism by signing on as subscribers to So those
• 13:32
  Speaker 3: are sort of three First Amendment arguments that the complaint
• 13:35
  Speaker 3: makes against so-called Truth API.
• 13:39
  Speaker 2: They haven't filed an answer yet, have they, Truth API?
• 13:41
  Speaker 1: Not that I'm aware of, no.
• 13:43
  Speaker 2: But then Trump media defended the program, saying the information
• 13:46
  Speaker 2: is technically public and no different from subscriptions APIs offered
• 13:52
  Speaker 2: by other major media platforms.
• 13:55
  Speaker 1: Well, they keep ignoring that the president is different.
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  Speaker 3: And that his official participation in this scheme, I'll call it,
• 14:05
  Speaker 3: makes this a constitutional issue. If a private market mover
• 14:09
  Speaker 3: or somebody who dealt in this kind of information did this,
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  Speaker 3: of course, the First Amendment doesn't apply. One of the
• 14:15
  Speaker 3: first things these plaintiffs have to show is that there's
• 14:17
  Speaker 3: some kind of governmental action here. And their argument is
• 14:21
  Speaker 3: that Trump, as the largest shareholder of Trump media and
• 14:24
  Speaker 3: True Social, makes that essentially a joint enterprise between a
• 14:29
  Speaker 3: government official and private actors. And that's state action. That's
• 14:35
  Speaker 3: their argument. And it seems persuasive to me. The president
• 14:39
  Speaker 3: is deeply involved here, not just as a sort of
• 14:42
  Speaker 3: poster of note on Truth Social. He is Truth Social.
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  Speaker 3: And their filings, the company's filings, more or less admit that.
• 14:49
  Speaker 3: If we didn't have Donald Trump posting, we'd be in
• 14:52
  Speaker 3: big trouble. So financially, they're dependent on Trump. Trump is,
• 14:56
  Speaker 3: as I said, the largest shareholder. He's signed agreements that
• 14:59
  Speaker 3: he'll only post there exclusively, at least for a time,
• 15:02
  Speaker 3: before he reposts things to other platforms. So he's deeply involved,
• 15:08
  Speaker 3: and that's what makes it different. You essentially have the
• 15:11
  Speaker 3: President of the United States selling early access to what's
• 15:15
  Speaker 3: called market-moving information. And people are paying $ 100, 000, and there
• 15:20
  Speaker 3: are 10, I think, that they say have already signed
• 15:23
  Speaker 3: up for a reason.
• 15:24
  Speaker 1: They financially benefit.
• 15:26
  Speaker 3: Getting this information even seconds before other people get it
• 15:30
  Speaker 3: is extremely valuable.
• 15:32
  Speaker 1: So, you know, as with many things in.
• 15:34
  Speaker 3: The Trump world, this is one that sort of raises
• 15:38
  Speaker 3: unique and novel questions, right? There's no First Amendment case
• 15:41
  Speaker 3: involving anything like this. So the plaintiffs in the lawsuit
• 15:46
  Speaker 3: are relying on traditional doctrines, and the courts will have
• 15:50
  Speaker 3: to figure out how those.
• 15:51
  Speaker 1: Apply if they apply.
• 15:53
  Speaker 2: I mean, Trump has so blurred the line between what's
• 15:57
  Speaker 2: governmental and what's personal that it's hard to tell. His
• 16:01
  Speaker 2: annual financial disclosure report showed that he took in more
• 16:05
  Speaker 2: than a billion dollars last year from new crypto businesses
• 16:10
  Speaker 2: that his administration regulates. And his digital finance company sold
• 16:15
  Speaker 2: hundreds of millions of dollars worth of special souvenir Trump
• 16:20
  Speaker 2: meme coins to his fans and possible seekers of federal favors,
• 16:25
  Speaker 2: including a billionaire fighting a federal lawsuit that was later settled.
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  Speaker 3: Yeah, you know, the defenders, the company defenders, as you say,
• 16:35
  Speaker 3: want to call this, you know, nothing out of the ordinary,
• 16:38
  Speaker 3: but it's extraordinary for the president or, you know, his
• 16:41
  Speaker 3: cronies to profit.
• 16:43
  Speaker 1: I mean, that's who's going to sign up, right?
• 16:45
  Speaker 3: He's trying to benefit somebody, himself, of course, and his company.
• 16:49
  Speaker 1: So, Yeah, it more than blurs a line. It just
• 16:53
  Speaker 1: destroys it.
• 16:55
  Speaker 3: It's just sort of like treating the president as some other,
• 16:58
  Speaker 3: you know, some ordinary market participant when it comes to
• 17:03
  Speaker 3: pronouncements on things like, you know, tariffs and foreign policy
• 17:08
  Speaker 3: and other things that affect the markets. I mean, we've
• 17:11
  Speaker 3: already seen what sort of the poly markets and the
• 17:13
  Speaker 3: sort of betting markets, how problematic it can be to
• 17:16
  Speaker 3: have people close to him who have access to information
• 17:19
  Speaker 3: in advance. And we probably only scratch the surface of
• 17:23
  Speaker 3: who's making money off the president's information, because what he
• 17:27
  Speaker 3: says does move markets.
• 17:28
  Speaker 1: We know that.
• 17:29
  Speaker 2: So have they asked or have they gotten a preliminary
• 17:32
  Speaker 2: injunction yet?
• 17:34
  Speaker 3: They've asked for one. I don't think they've gotten one.
• 17:36
  Speaker 3: I don't think the case has gone very far yet.
• 17:39
  Speaker 3: It'll take a second.
• 17:40
  Speaker 2: And I just want to mention that in addition to
• 17:42
  Speaker 2: the president, the lawsuit also names his Deputy Chief of
• 17:47
  Speaker 2: Staff Daniel Scavino and his executive assistant Natalie Harp as defendants.
• 17:53
  Speaker 2: It's been great having you on, Tim. Thanks so much.
• 17:56
  Speaker 2: That's Professor Timothy Zick of William & Mary Law School.
• 18:00
  Speaker 2: Turning now to other legal news, you may remember back
• 18:03
  Speaker 2: in March when Tiger Woods was arrested after his SUV
• 18:08
  Speaker 2: clipped a truck and rolled over on its side on
• 18:11
  Speaker 2: a beachside residential road in near his home on Jupiter Island.
• 18:15
  Speaker 2: A sheriff's report said deputies found two pain pills in
• 18:17
  Speaker 2: his pocket and he showed signs of impairment. He did
• 18:19
  Speaker 2: a breathalyzer test, which came out negative, but refused to
• 18:21
  Speaker 2: take a urine test.
• 18:22
  Speaker 1: He pleaded not guilty to the original DUI charge.
• 18:42
  Speaker 2: Woods changed his plea in a Florida court today, pleading
• 18:46
  Speaker 2: no contest to a reckless driving charge. A judge ordered
• 18:51
  Speaker 2: his driver's license be suspended for five years. Here's Florida
• 18:56
  Speaker 2: State Attorney Thomas Bacadal.
• 18:59
  Speaker 4: His license is suspended for a period of five years,
• 19:02
  Speaker 4: and as you heard the judge indicate to him, you
• 19:05
  Speaker 4: shouldn't drive. And if anybody in the world, if I
• 19:08
  Speaker 4: can send any message to Mr. Woods, it's simply this.
• 19:12
  Speaker 4: Of all the people in the world who should not
• 19:15
  Speaker 4: get behind the wheel of the car, it's the gentleman
• 19:18
  Speaker 4: who is one of the most recognizable faces on the planet.
• 19:22
  Speaker 2: Woods is still one of golf's most influential figures and
• 19:26
  Speaker 2: as recognizable as any athlete in the world. He's had
• 19:30
  Speaker 2: a remarkable fall since winning the 2019 Masters for his
• 19:32
  Speaker 2: 15th major. His career has been derailed by multiple back
• 19:38
  Speaker 2: and knee injuries, car crashes, and dependence on pain medication.
• 19:43
  Speaker 2: The prosecutor in the case said two toxicologists found there
• 19:47
  Speaker 2: was insufficient proof of his impairment and determined that Woods
• 19:51
  Speaker 2: had built up a pharmacological tolerance after years of using
• 19:55
  Speaker 2: pain pills. At today's hearing, Woods also pleaded no contest
• 20:00
  Speaker 2: to refusing to submit to testing after the crash and
• 20:03
  Speaker 2: was fined $ 1, 500. A no-contest plea is not an admission
• 20:08
  Speaker 2: of guilt, but means the accused will offer no defense.
• 20:12
  Speaker 2: The plea is treated as a conviction in the criminal
• 20:15
  Speaker 2: justice system. Woods has been involved in four crashes over
• 20:19
  Speaker 2: the years. He took a leave from the golf tour
• 20:22
  Speaker 2: after the 2009 crash and again after the latest crash
• 20:27
  Speaker 2: and has yet to return to tournament play. And that's
• 20:30
  Speaker 2: it for this edition of the Bloomberg Law Show. Remember,
• 20:33
  Speaker 2: you can always get the latest legal news on our
• 20:35
  Speaker 2: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
• 20:39
  Speaker 2: and at www.bloomberg.com slash podcast slash law. And remember to
• 20:45
  Speaker 2: tune into the Bloomberg Law Show every weeknight at 10 p.m.
• 20:49
  Speaker 2: Wall Street time. I'm June Grosso, and you're listening to Bloomberg.