• The Ninth Circuit recently ruled in Dodge v. Evergreen School District that Eric Dodge, a sixth-grade teacher from Vancouver, Washington, was entitled to a trial on his claim that school district officials violated his First Amendment rights by threatening to discipline him for wearing a MAGA hat to teacher training.
• The First Amendment protects public employees differently depending on whether the government is wearing its sovereign hat or its employer hat.
• To show a violation of the First Amendment, a public employee must show that the state actor engaged in an “adverse employment action” against the plaintiff as a result of their speech.
• The government must establish that it had a legitimate administrative interest in preventing or punishing the speech that outweighed the employee’s interest in exercising their First Amendment rights.
• The more the employee’s speech resembles core First Amendment expression (like political speech), the harder it is for the government to make this showing.
• Even when First Amendment rights are violated, there may not be a remedy due to the judicially created doctrine of “qualified immunity.”
Published January 12, 2023. Visit Popehat to read Ken White’s original post.