Medford, Oregon, about 30 miles from the California border, was the site in May 2012 of a planned teachers’ strike that ended up lasting 9 days. During the strike, some high school students even took to the streets as a show of support for their teachers.
About a week before the strike—knowing that it was coming—the school district enacted two policies. The first was an anti-picketing policy. There was to be no picketing on school property, which included a recently purchased vacant lot near a school. Picketers were also prohibited from entering school facilities for any reasons. The second policy concerned signs and banners, which were prohibited in school facilities unless the superintendent has approved them beforehand. Both policies applied to all school property—not just property used “for instruction.” The district planned to keep schools open during the strike.
The teachers’ union sued (along with several students), arguing that the district’s policies violated the First Amendment rights of its members. They won. The district defended its policies, first arguing that it was regulating its own speech, or “government speech” (which would give the district near-free-reign). The Ninth Circuit quickly rejected this argument. No reasonable observer, said the court, would think that strikers and picketers were speaking for the district. But the district also argued that its policies were constitutional because they were reasonable, viewpoint-neutral restrictions on government, non-public property. But the court found the policies neither reasonable nor viewpoint-neutral. The policies had no relationship to the district’s “undifferentiated fear” that school would be disrupted during the strike. And the policies were not viewpoint neutral because they were specifically targeted at suppressing pro-union speech. “Restrictions on free speech rights cannot be aimed at stifling expressions of dissent, even where—indeed, especially where—such restrictions are intended to show the government’s resolve.”
Case: Eagle Point Edu. Ass’n v. Jackson Cty. Sch. Dist. No. 9, No. 15-35704 (9th Cir. Jan. 26, 2018) (opinion here)
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