School Can Order Removal of Pride Flags From Classrooms

0:00brought to you by Applecard. This summer, Earn Daily Cash Back With Applecard. Apply for Applecard now and use in minutes with Apple Pay. Subject to credit approval, Applecard is issued by Goldman Sachs Bank USA Salt Lake City Branch, termsinmoreatapplecard.com. Early morning on a Manhattan sidewalk, a shooting caught on surveillance video. It was an assassination style killing, and everybody saw it. Now, as Luigi Mangioni prepares to stand trial for the murder of United Health Care CEO, Brian Thompson, which he denies, a new podcast series from ABC Audio in 2020 goes inside this captivating case. I'm ABC News Legal Analyst, Brian Buckmeyer. Listen to burden-of-proof Luigi Mangioni, wherever you get your podcasts. This is Bloomberg Law with June Grasso from Bloomberg Radio. Should high school teachers be able to hang pride flags on the walls of their classrooms,

1:02or put up pride stickers, that question became a federal case when three teachers took a long island high school to court for ordering their removal of pride flags and stickers from their classrooms. The second circuit court of appeals answered that question with a resounding no. The court said the school district neither violated the teacher's first amendment rights to free speech, nor discriminated against them based on sexual orientation by ordering the removal of the flags and stickers. Joining me is first amendment expert Timothy Zick, a professor at William & Mary Law School. Tim, is there a general rule for what can be put up in public school classrooms? There are lots of cases about student speech. I'm thinking of the Supreme Court decided a number of cases about the scope of student speech rights. This involves faculty or teachers and their rights, free speech rights, as they pertain to the classroom,

2:07but not the curriculum, but instead the blackboards or bulletin boards and walls and doors and those sorts of things and what they put on them. There is no hard and fast rule for that. There is no Supreme Court case that's about these specific facts. What the second circuit is doing is applying a sort of doctrine that applies to the rights, the free speech rights of public employees generally. These are high school teachers, math teachers and others, and it's their speech that's at issue. That's what the court is doing. In some sense, it's addressing a novel issue, I think in that circuit even, nothing's pertained to specifically what goes on doors and the walls of math classrooms and the like. The plaintiffs here, the teachers made several arguments. Let's take them one by one. First of all, they argued that the ban violated their first amendment free speech rights.

3:11They argued that the pride flags, there were a couple of different versions of the pride flag issue, where a form of what's called symbolic conduct or expressive conduct that conveyed their political speech. These are people who are out as gay individuals, so their argument was by forcing us to take these things down. That violates our free speech rights and they added, you know, there's a sort of discriminatory element to this because you're not making people take down other things from the walls. So you're singling us out based on the alleged and their complaint viewpoint. And the court rejected that argument entirely, rejected all their arguments, but that one in particular implicates this idea of the speech rights of public employees. And there's a case called Garcetti, and that's the Supreme Court case the courts were lying on the most. And in Garcetti, there was an assistant district attorney who was writing memos for search warrants, and he came across a warrant that was problematic,

4:19and he brought that to his boss's attention and sort of whistleblower way. And he was sanctioned or disciplined for that. And he said, well, it violates my free speech rights to discipline me for that speech. And the court's answer was, when the public employee creates speech as part of their so-called professional duties, when the speech owes its existence to the job itself, when they go to work, these are different ways the court phrase it, when they go to work, and they create speech that they're being paid to create, like the memo in Garcetti, then the first amendment just flies out the window. It just doesn't apply to that speech at all. So whether you're arguing it's just a straight up, you know, you're taking down my protected speech or you're discriminating based on viewpoint, none of those arguments go anywhere if the speech essentially belongs to the employer. And that's where the court lands. It says, you know, that speech on the walls and on the doors is in essence part of curricular speech.

5:19And the first amendment doesn't restrict the public employer, a school administrator, the principals, when they deal with and restrict that kind of speech. So that's what happened to their free speech claims and everything else just sort of flows from that. Has the Supreme Court rule that students have free speech rights at school? Oh, yes. So the court, a case called Tinker, back in the 1960s, said that students do not shed their free speech rights at the schoolhouse gates. And in that case, the students were wearing black armbands to protest the Vietnam War and they were disciplined, punished for wearing them in violation of a school policy. And the court said, you can't discipline these students. So the first member protects their political dissent, unless what they're doing creates a material and substantial disruption in the classroom or with respect to the school's functions. So it's clear that students don't shed their first minute rights. And this court, the second circuit says neither do teachers.

6:21We're just saying this speech in particular is not protected speech. And they drew a distinction between the things the teachers are putting on the walls and the doors and say a pride flag lap help in or a photograph of their same sex spouse. Those the court said are likely protected speech. That's not something the employer owns or has plenary control over. But when it comes to creating a classroom environment, which is how the court characterizes this speech, the employer controls. Now they also claim that they were denied equal protection. Yeah, so part of that is being singled out based on the sort of viewpoint of the speech, but they also alleged they were singled out because they're gay. And the court said there's nothing in the complaint that sort of sheds any light on a claim of so-called animus. In other words, you don't have any alleged any facts that would support to claim that this policy was the result of or was purposefully discriminatory against the class of individuals based on that characteristic sexual orientation.

7:34So the equal protection claim they said is also dismissed as the district court dismissed. They're just upholding the district court. Then they made some sort of human rights claims, sort of discriminatory claims under federal law and state law. And those went the way of this discrimination claim that I just discussed. I mean, do you think this is a solid opinion? I mean, it applies faithfully, I think, what the court said in Gart-Setti, with regard to public employees. Some might think it's a bit of a stretch to say what goes on the walls is part of the curriculum. So it's pretty clear there that district officials and others would have control at the high school level, at least, or elementary school level, over what's taught. But extending that to what goes on the walls, some might think stretches things a bit, or is the court character as a creating a classroom environment? I suppose it in a math classroom one might expect to see equations, or great figures in math from history, or something like that.

8:35That seems to be the sense in which the court saying, no, no, this speech is all about a classroom environment. When teachers put things up in the classroom, that's being done pursuant to their job responsibilities. And that is something that the employer can control. And I guess if you think about it, that would make sense. If that weren't a case, then all kinds of political speech could go up on the walls where you could have anti-magas speech. And teachers could claim, well, that's all part of my political expression. And so I think pragmatically, it's persuasive, right? And probably with respect to Gart-Setti too. The one thing that concerns academics like myself is Gart-Setti's application to instructor speech in the classroom. Because if Gart-Setti is taken literally, it would mean that my teaching and my scholarship are also controlled by my employer.

9:36Because that's what I get paid to go to work and do. And so in Gart-Setti, the court sort of punced that issue, it says, we're not addressing in this case, what happens with respect to university professors or presumably graduate professors who have academic freedom and tenure and those sorts of things. They kind of put that aside. This is not that case either. These are high school teachers. And they don't have the same protections as university professors. But, you know, it's just another place where this Gart-Setti case is sort of shown up or popped up. And it extinguishes free speech claims. And to some people, that's disturbing enough. Is this a unique case? A novel case? Have you heard of anything similar to this across the country? I haven't heard anything about walls and doors. But there's certainly been questions about, you know, assignments that teachers might give to students or how they grade them. You know, the contours of this kind of doctrine in the high school and elementary context is just not clear.

10:40So, you know, there are probably some cases. I think I've come across some cases about clothing or jewelry or lapel pins or religious symbols of those sorts of things. But this is just this sort of unique factual context, I think. And it was a unanimous decision of the second circuit. Stay with me, Tim. Coming up next on the Bloomberg Law Show, I'll continue this conversation with William and Mary Law Professor Timothy Zick. We'll talk about the suit against President Trump for making money off a new paid service offering sneak peeks at his truth social posts. I'm June Grasso and you're listening to Bloomberg. Early morning on a Manhattan sidewalk, a shooting caught on surveillance video. It was an assassination style killing, and everybody saw it. Now, as Luigi Mangioni prepares to stand trial for the murder of United Healthcare CEO Brian Thompson, which he denies, a new podcast series from ABC Audio in 2020 goes inside this captivating case.

11:44I'm ABC News legal analyst Brian Buckmeyer. Listen to burden of proof Luigi Mangioni, wherever you get your podcasts. Two media organizations are suing President Trump over a new paid service at his truth social company that offers early exclusive access to his posts on US policy. The new subscription service was rolled out last month and it's charging Wall Street firms as much as $100,000 a month to trade off the market moving posts before others. The lawsuit alleges the service violates two parts of the Constitution. The first amendment right to access a president's comments on equal terms with other members of the press and public. And the fifth amendment prohibition on charging unreasonable conditions for government benefits.

12:44Truth social parent company Trump media and technology said selling fast access to traders is common in its industry and that the plaintiffs are just trying to silence the president. I've been talking to Timothy Zick, a professor at William & Mary Law School. The service called truth API will charge up to $100,000 a month for faster access to the president's truth social post. Tim, explain the basis of the suits against Trump for this new paid service. Yeah, they're putting aside securities laws and other laws that this may violate. The news organizations, the nonprofits are alleging in their complaint that when you offer this kind of early access or exclusionary access to some but not others, you violated their right to receive information in this case governmental information.

13:44So there isn't the first amendment right to receive not just a right to speak and they're invoking that rights as news organizations that follow his posts and some even analyze his posts, right? And so they're making that argument. They're also arguing that the posts that the president puts up on truth social are what are called public forum or a public forum. And that argument is you can limit speech in a public forum this kind of resource but you have to meet sort of requirements, right? There has to be some kind of important governmental interest and you have to narrowly tailor whatever restriction you have and leave open ample alternative channels for receiving this speech and they say it fails that test, it's sort of time place and manner test. And then they make a final argument that says this is an unconstitutional condition. It's essentially extortion it. You're making a benefit available but on an unconstitutional grounds because the news organizations and say we can't afford it and even if we could, we wouldn't compromise our objectivity and our professionalism by signing on as subscribers.

14:54So those are sort of three first amendment arguments that the complaint makes against so-called truth API. They haven't filed an answer yet. Have they? Truth API? Not that I'm aware of no. But then Trump media defended the program saying the information is technically public and no different from subscriptions APIs offered by other major media platforms. Well, they keep ignoring that the president is different and that his official participation in this scheme. I'll call it makes this a constitutional issue. If a private market mover or somebody who dealt in this kind of information did this, of course the first amendment doesn't apply. One of the first things these plaintiffs have to show is that there's some kind of governmental action here. And their argument is that Trump as the largest shareholder of Trump media and truth social makes that essentially a joint enterprise between a government official and private actors and that state action.

15:58That's their argument and it seems persuasive to me. The president is deeply involved here, not just as a sort of poster of note on truth social. He is truth social. And their filings, the company's filings more or less admit that if we didn't have Donald Trump posting, we'd be in big trouble. So financially, they're dependent on Trump. Trump is, you know, as I said, the largest shareholder. He signed agreements that he'll only post there exclusively at least for a time before he reposts things to other platforms. So he's deeply involved and that's what makes it different. You essentially have the president of the United States selling early access to what's called market moving information. And people are paying $100,000 and they're 10, I think, that they say they've already signed up for a reason. They financially benefit getting this information even seconds before other people get it is extremely valuable. So, you know, that's with many things in the Trump world. This is one that sort of raises unique and novel questions.

17:02There's no first amendment case involving anything like this. So the plaintiffs in the lawsuit are relying on traditional doctrines and the courts will have to figure out how those apply if they apply. I mean, Trump has so blurred the line between what's governmental and what's personal that it's hard to tell. His annual financial disclosure report showed that he took in more than a billion dollars last year from new crypto businesses that his administration regulates. And his digital finance company sold hundreds of millions of dollars worth of special souvenir, Trump mean coins to his fans and possible seekers of federal favors, including a billionaire fighting a federal lawsuit that was later settled. Yeah, you know, the defenders, the company defenders, as you said, want to call this, you know, nothing out of the ordinary, but it's extraordinary for the president or, you know, his cronies to profit.

18:06I mean, that's who's going to sign up, right? He's trying to benefit somebody himself, of course, and his company. So, yeah, it more than blurs a line, it just destroys it. It's just sort of like treating the president as some other, you know, some ordinary markets participants when it comes to pronouncements on things like tariffs and foreign policy and other things that affect the markets. I mean, we've already seen what sort of the polymarkets and the sort of betting markets, how problematic it can be to have people close to him who have access to information in advance. And we probably only scratch the surface of who's making money off the president's information because what he says does move markets. We know that. So, have they asked or have they gotten a preliminary injunction yet? They've asked for one. I don't think they've gotten one. I don't think the case has gone very far yet. It'll take a second. And I just want to mention that in addition to the president, the lawsuit also names his deputy chief of staff, Daniel Scavino, and his executive assistant, Natalie Harp, as defendants.

19:16It's been great having you on to him. Thanks so much. That's Professor Timothy Zick of William and Mary Law School turning out to other legal news. You may remember back in March when Tiger Woods was arrested after his SUV clipped a truck and rolled over on its side on a beach side residential road near his home on Jupiter Island. So, at this time, I do believe all the pockets he's earned here. And you're under that unknown substance. So, at this time, you're under arrest for the UI. Yes, sir. A sheriff's report said deputies found two pain pills in his pocket and he showed signs of impairment. He did a breathalyzer test which came out negative, but refused to take a urine test. He pleaded not guilty to the original DUI charge. Woods changed his plea in a Florida court today, pleading no contest to a reckless driving charge. A judge ordered his driver's license be suspended for five years. Here's Florida State Attorney Thomas Bacadol.

20:22His license is suspended for a period of five years and as you heard the judge indicate him, you shouldn't drive. And if anybody in the world, if I can send any message to Mr. Woods, it's simply this, of all the people in the world who should not get behind the wheel of the car. It's the gentleman who is one of the most recognizable faces on the planet. Woods is still one of golf's most influential figures and as recognizable as any athlete in the world. He's had a remarkable fall since winning the 2019 Masters for his 15th major. His career has been derailed by multiple back and knee injuries, car crashes and dependence on pain medication. The prosecutor in the case said two toxicologists found there was insufficient proof of his impairment and determined that Woods had built up a pharmacological tolerance after years of using pain pills. At today's hearing, Woods also pleaded no contest to refusing to submit to testing after the crash and was fined $1,500.

21:29A no contest plea is not an admission of guilt but means the accused will offer no defense. The plea is treated as a conviction in the criminal justice system. Woods has been involved in four crashes over the years. He took a leave from the golf tour after the 2009 crash and again after the latest crash and has yet to return to tournament play. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street Time. I'm June Grasso and you're listening to Bloomberg. Get essential news on the people and companies pushing the tech sector to new frontiers. Hi, I'm Ed Ludlow. Join me for Bloomberg Tech, a daily podcast focused exclusively on technology, innovation and the future of business.

22:37Every weekday we bring you the latest insights on Silicon Valley's top companies and conversations with tech's biggest decision makers. Listen to Bloomberg Tech on your commute home and stay ahead of the news cycle. Subscribe today on Apple, Spotify or anywhere you listen.