Westbrook v. Teton County School Dist. No. 1, No. 95-CV-0156-B.

• Court: United States District Courts. 10th Circuit. District of Wyoming
• Writing for the Court: R. Michael Mullikin, Jackson, Wyoming, for Defendants
• Citation: 918 F. Supp. 1475
• Docket Number: No. 95-CV-0156-B.
• Decision Date: 01 March 1996
• Parties: Dr. Pamela J. WESTBROOK, Plaintiff, v. TETON COUNTY SCHOOL DISTRICT NO. 1; Sarah J. Smith, Superintendent of Public Instruction, in her individual and official capacities, Defendants.

918 F. Supp. 1475

Dr. Pamela J. WESTBROOK, Plaintiff,
v.
TETON COUNTY SCHOOL DISTRICT NO. 1; Sarah J. Smith, Superintendent of Public Instruction, in her individual and official capacities, Defendants.

No. 95-CV-0156-B.

United States District Court, D. Wyoming.

March 1, 1996.

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Patrick E. Hacker, Terry L. Armitage, Cheyenne, Wyoming, for Plaintiff

R. Michael Mullikin, Jackson, Wyoming, for Defendants.

ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT AND PERMANENT INJUNCTION

BRIMMER, District Judge.

Dr. Pamela Westbrook, a special education teacher in Teton County School District No. 1 ("Teton County"), asks the Court to find that Teton County's "Staff Conduct" policy — which limits and restricts "criticism" — violates the First Amendment's guarantee of free speech. Teton County opposes Westbrook's motion for partial summary judgment and a permanent injunction primarily by arguing that its policy is constitutional because it restricts only "unprotected speech."

Background

In 1981, Teton County School District No. 1 enacted a "Staff Conduct" policy that restricts

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and channels "criticism" among and between employees

It shall be unethical for any staff member to criticize other staff members, the administrators, or members of the Board of Trustees to anyone other than the person being criticized, except to the Building Principal, Superintendent, or at a regular meeting of the Board of Trustees.

(Policy attached as Appendix "A"). To discourage staff members from making "critical" comments out of order, the policy also has an enforcement mechanism: "Continued disregard for this policy will result in disciplinary action."

For purposes of this order, the particular facts surrounding Westbrook's speech are not important. Suffice it to say that Westbrook filed this lawsuit shortly after Teton County allegedly disciplined her pursuant to its limited criticism policy. Although Westbrook challenges that policy as Teton County applied it to her, in this motion she challenges the policy only as it applies to all Teton County employees. In the lingua franca of constitutional law, she challenges the policy "on its face," alleging that it: (1) constitutes an invalid prior restraint on speech; (2) infringes on protected speech in the absence of a compelling state interest; and (3) is unconstitutionally vague and overbroad.

Analysis

I. TETON COUNTY'S POLICY AND THE LAW OF "PRIOR RESTRAINT"

Westbrook first asserts that Teton County's policy is a constitutionally infirm "prior restraint on the First Amendment right of free speech." Although Westbrook is wrong, her error is a common one that seems to have arisen from careless and excessive use of the phrase "prior restraint."¹

Not all laws that burden speech are "prior restraints." Despite this historical fact, many people assume otherwise. Their misunderstanding apparently arises from the chronologically obvious fact that any law which pre-exists speech, and which threatens to punish speech, tends to inhibit speech. Because such laws pre-exist or are "prior" to speech, and because such laws inhibit or "restrain" speech, one might conclude that such laws are "prior restraints." This colloquial conclusion is, however, wrong. It is wrong because the phrase "prior restraint" is a legal term of art that is shorthand for laws which do more than simply punish a person, after the fact, for saying certain things. See Trotman v. Board of Trustees, 635 F.2d 216, 229 (3d Cir.1980) (noting "vast difference" between prior restraint censorship and subsequent punishments); Providence Journal Co. v. Newton, 723 F.Supp. 846, 854 (D.R.I. 1989) (discussing difference between "prior restraints" and "subsequent punishments").

As the Supreme Court uses the term, a law constitutes a prior restraint when: (1) A person who seeks to exercise First Amendment rights must apply to the government for permission; (2) The government is empowered to determine — on the basis of the content of the proposed expression — whether it should grant the applicant permission to speak; (3) Permission to speak depends on the government's affirmative action; and (4) Approval is not a routine matter, but requires the government to examine facts, exercise judgment, and form opinions. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554, 95 S.Ct. 1239, 1244, 43 L.Ed.2d 448 (1975); see Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Most systems of prior restraint involve some kind of licensing scheme or permit process. See, e.g., Freedman, 380 U.S. at 58-59, 85 S.Ct. at 738-39; Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). Reduced to their lowest common denominator, true or classic prior restraints give "public officials the power to deny use of a forum in advance of actual expression."

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Id. at 553, 95 S.Ct. at 1244. None of these elements apply in this case

First, Teton County's policy does not require employees to apply for permission before they "criticize" colleagues or superiors. Second, the policy does not authorize the district to examine the content of employees' proposed speech before determining whether they can speak. Third, employees do not have to await Teton County's approval before they speak. And finally, the policy does not require Teton County to examine the "prespeech" facts, exercise its judgment, and decide whether to allow or prohibit the proposed speech.

Although Teton County's threat of subsequent disciplinary action may chill employee speech, it does not freeze employee speech before it is aired. Teton County's policy simply does not give Teton County officials the power to deny the use of a forum in advance of actual expression. Teton County's policy is not, therefore, a constitutionally suspect "prior restraint."

II. TETON COUNTY'S POLICY, THE COMPELLING INTEREST TEST, AND THE PICKERING BALANCING TEST

Westbrook next argues that Teton County's policy violates the First Amendment because, for no compelling reason, it restricts speech. In support of this argument, Westbrook asserts that she must prevail because Teton County has failed to articulate and demonstrate a compelling state interest that justifies its content-based restriction on speech.

A. The Compelling State Interest Test

When government restricts, on the basis of content, the free speech rights of private citizens, it usually must demonstrate that: (1) it has a compelling state interest in promoting some interest served by the speech restriction; (2) the law restricting speech directly furthers the government's interest; and (3) the law restricting speech is no more broad than necessary to further the government's interest. Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 2292-93, 65 L.Ed.2d 263 (1980); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983); Boos v. Barry, 485 U.S. 312, 321-24, 108 S.Ct. 1157, 1163-66, 99 L.Ed.2d 333 (1988). "This is," the Supreme Court recently observed, "an exacting test." Turner Broadcasting System, Inc. v. FCC, 512 U.S. ___, ___, 114 S.Ct. 2445, 2478, 129 L.Ed.2d 497, 541 (1994) (O'Connor, J., concurring in part and dissenting in part). Thus, if this were a case in which the government had enacted a law that allowed one citizen to "criticize" another citizen only under limited circumstances, the Court would rigorously require the government to satisfy these three criteria. This is not, however, such a case.

The issue here is whether Teton County can regulate the speech of its employees, not whether it can regulate the speech of private citizens. The First Amendment test for evaluating restrictions on the speech of private citizens is different from the test for evaluating restrictions on the speech of public employees. Waters v. Churchill, 511 U.S. ___, ___-___, 114 S.Ct. 1878, 1886-88, 128 L.Ed.2d 686, 697-99 (1994) (plurality opinion). Although the First Amendment protects the speech rights of public employees, the protection is not so stout that it requires the government to proffer a compelling interest which justifies a narrowly tailored restriction on such speech.

B. The Pickering Balancing Test

In Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Supreme Court set forth the First Amendment test that applies to the speech of public employees. Noting that "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general," the Court held that:

The problem in any case is to arrive at a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

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Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35. Over the years, the Court has refined this balancing test, see Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), so that it now requires courts to consider first whether the speech at issue addresses a matter of "public concern." Luethje v. Peavine School District, 872 F.2d 352, 355 (10th Cir. 1989); Conaway v. Smith, 853 F.2d 789, 796 (10th Cir.1988). If the employee's speech does not address an issue of public concern, the Court does not even proceed to the next step, which is the balancing. Connick, 461 U.S. at 146, 103 S.Ct. at 1689-90.

1. Speech on Matters of "Public Concern"

Addressing the "public...