George F. Will On "Marriage as Hate Speech" Case from California

A couple of weeks ago, I made mention of the story of a group of city employees in California who posted a flier about a Christian group who were sued because their superiors thought their flier about marriage and natural family was homophobic and hate speech. Yesterday, George Will wrote about the case.

Marriage is the foundation of the natural family and sustains family values. That sentence is inflammatory, perhaps even a hate crime.

At least it is in Oakland, Calif. That city's government says those words, italicized here, constitute something akin to hate speech and can be proscribed from the government's open e-mail system and employee bulletin board.

When the McCain-Feingold law empowered government to regulate the quantity, content and timing of political campaign speech about government, it was predictable that the right of free speech would increasingly be sacrificed to various social objectives that free speech supposedly impedes. And it was predictable that speech suppression would become an instrument of cultural combat, used to settle ideological scores and advance political agendas by silencing adversaries.

That has happened in Oakland. And, predictably, the ineffable U.S. Court of Appeals for the 9th Circuit has ratified this abridgement of First Amendment protections. Fortunately, overturning the 9th Circuit is steady work for the U.S. Supreme Court.

Will goes a little far in chastising the supervisors, writing:

The premise is that city officials are entitled to maintain workplace order and decorum. The theory is that government supervisors have such unbridled power of prior restraint on speech in the name of protecting order and decorum that they can nullify the First Amendment by declaring that even the mild text of the GNEA flier is inherently disruptive.

Actualy, supervisors in an employment atmosphere have a pretty broad authroity to ban speech through the employers's systems, such as the email system or company bulletin board. The problem in this case is not that the supervisors banned the speech but that they were selective in their banning. Had the case been reversed, with a flier espousing National Coming Out Day in a more conservative area of the country, I would have the same beef.

An employer cannot ban one form of speech content after permitting an opposing view. If the city permits the use of email systems and bulletin boards for the posting of non-work related items, they must permit all groups to post. Thus it is far more likely to ban all non-work related postings and in doing so, the city would be on safe legal ground, because it is a content neutral restriction desinged to further the role of the employer--that of doing the employer's work.