In California, several authorities protect the right to freedom of expression.  First and foremost, the First Amendment to the U.S. Constitution sets the minimum standard of protection.  California lawmakers and government agencies cannot create any law, regulation or ordinance to diminish the protection afforded by the First Amendment.  They may, however, expand the protections.

California's Constitution also protects free expression.  Article 1, section 2, subdivision (a) states,

Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge the liberty of speech or press.

Some courts have determined that the free speech clause in California's Constitution is broader in some areas than the free speech clause of the First Amendment, such as in its application to private property.  However, California's Supreme Court has emphasized that it is not broader in all of its applications, thus California courts may draw on both state and federal precedent to conducting constitutional free speech analyses.

In addition to the state and federal constitutional protections afforded to speech in California, the Legislature has enacted specific statutes to ensure that free expression protections are extended to groups or individuals in circumstances or locations where speech might not otherwise be completely protected.  For instance, the Legislature has enacted California Government Code section 3203, which limits the restriction public agencies can place on the "political activities" of their employees.  These types of protections are discussed in more detail below.

The purpose of this workbook is to discuss the various free expression protections afforded to an employee of California public agencies.  It is also intended to explain how public agency governing boards and officials may regulate such expression.  When using this workbook it is important to consider that it is only a guide and cannot be relied upon for definitive legal advice regarding a specific situation.  Free expression analyses are fact-intensive and the absence or addition of a particular fact can change an entire analysis.

Topics Include:

• 42 U.S.C. § 1983 Free Speech Claims
• Analyzing Free Expression 
  • Is the Expression Constitutionally Protected?
  • Forum Analysis
  • Forum Analysis Chart
  • Imposition of Reasonable Time, Place, and Manner Regulations
• Employee Expression
  • First Amendment Protection of Employee Speech
  • Retaliation Claims and the Five-Element Test
  • The Duty to Investigate Employee Speech
  • Off-Duty Conduct
  • Constitutional Right to Petition
  • Policy Making Employees and Patronage
  • Contractor and Third Party Claims
  • Free Speech Protection Under the California Constitution
  • Free Expression Implications of Stay-At-Home Orders Related to COVID-19
• Political Expression
• Religious Expression
• Expression on Union and Labor Relations Matters
• Employee Use of Computers and the Internet
  • Employer Electronic Communications Policies
  • Policy Drafting Considerations
  • Employee Use of Social Media
• Whistleblower and Other Statutory Laws Protecting Employee Speech
  • Anti-Retaliation Law in Discrimination and Protected Classification Statutes
  • Whistleblower Statutes
  • Working Conditions
• Limiting Expressive Personal Appearance:  Dress Codes, Tattoos, and Body Piercings
  • Creating a Policy to Avoid Hostile Work Environment Claims
  • Case Studies on Hostile Work Environment
  • Policy Must Consider Protection of Employee Safety
  • Policy Must Not Unduly Infringe Fourteenth Amendment Liberty Interest in Appearance
  • First Amendment Concerns May Subject the Dress Code to Higher Scrutiny
  • Case Studies Concerning First Amendment Rights of Employees – Dress and Tattoos
  • Religious Practices of Employees Must be Reasonably Accommodated as Long as to Do So Would Not Subject the Employer to Undue Hardship
  • Dress Codes and Tattoo/Piercing Policies Must Not Discriminate on the Basis of Race or Have a Disparate Effect on Those of a Particular Race
  • Enforcement of Dress Codes May Be an Issue Which Requires Meeting and Conferring with the employees’ Union
• How to Create Dress Codes to Deal With Your Specific Needs
  • Elements of a Dress Code Policy
  • Sample Dress Code Policy
  • Sample Tattoo Policy
  • Sample Piercing Policy

Freedom of expression is guaranteed to the people of the United States by the First Amendment to the United States Constitution, which provides:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances."

Although the First Amendment uses the word "speech", its protections expand beyond what people typically identify as speech, i.e., spoken and written word.  "Freedom of speech" is "the right of people to express their opinions publicly without governmental interference, subject to the laws against libel, incitement to violence or rebellion, etc."  Thus, verbal and written speech are merely two of many expressive forms of communication protected by the First Amendment.  Courts have broadened the term "speech" to include all types of expressive activity, whether verbal, written, or symbolic.  Consequently, what many refer to as "freedom of speech" is also sometimes referred to as "freedom of expression."  The terms are essentially interchangeable and are used interchangeably throughout this workbook.

In California, several authorities protect the right to freedom of expression.  First and foremost, the First Amendment to the U.S. Constitution sets the minimum standard of protection.  California lawmakers and government agencies cannot create any law, regulation or ordinance to diminish the protection afforded by the First Amendment.  However, they may expand the protections.

California's Constitution also protects free expression.  Article 1, section 2, subdivision (a) states,

Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge the liberty of speech or press.

Some courts have determined that the free speech clause in California's Constitution is broader in some areas than the free speech clause of the First Amendment, such as in its application to private property.  However, California's Supreme Court has emphasized that it is not broader in all of its applications, thus California courts may draw on both state and federal precedent to conducting constitutional free speech analyses. (Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 353, 367.)

In addition to the state and federal constitutional protections afforded to speech in California, the Legislature has enacted specific statutes to ensure that free expression protections are extended to groups or individuals in circumstances or locations where speech might not otherwise be completely protected.  For instance, the Legislature has enacted Education Code sections 66301 and 76120 to protect speech by students at California community colleges.  These protections are discussed in detail below.

The purpose of this workbook is to discuss the various free expression protections afforded to individuals on California community college district campuses.  It is also intended to explain how district governing boards and officials may regulate such expression.  When using this workbook it is important to consider that it is only a guide and cannot be relied upon for definitive legal advice regarding a specific situation.  Free expression analyses are fact-intensive and the absence or addition of a particular fact can change an entire analysis.

Topics Include:

• Analyzing Free Expression
  • Is the Expression Constitutionally Protected?
  • Forum Analysis
  • Forum Analysis Chart
• Student Expression
  • Students Enjoy the Same Free Expression Rights on Campus As They Do Off
  • Key Policy Items to Review
  • Practical Application on Campus
• Free Press:  College Newspapers
  • The Education Code Prohibits Prior Restraints on Student Press
  • Permissible Restraints on Student Publications
• Employee Expression
  • Academic Freedom
  • First Amendment Protection of Employee Speech
  • Religious Expression at Work
  • Employees’ Personal Expression Regarding Union Issues
  • The Duty to Investigate Employee Speech
  • Off-Duty Conduct
  • Use of Computers and the Internet
  • Protection for District Employees That Defend Students’ Speech Rights
  • Free Expression Implications of Stay-At-Home Orders Related to COVID-19
• Limiting Expressive Personal Appearance:  Dress Codes - Employees
  • Creating a Policy to Ensure Employee Safety
  • Policy Must Not Unduly Infringe Upon an Employee’s Fourteenth Amendment Liberty Interest in Appearance
  • First Amendment Concerns May Subject a Dress Code to Higher Scrutiny
  • Cases Concerning Employees’ First Amendment Rights in Appearance or Dress
  • A Policy Must Reasonably Accommodate Religious Practices Except When Doing So Creates an Undue Hardship
  • Dress Codes and Tattoo/Piercing Policies Must Not Discriminate on the Basis of Race or Have a Disparate Effect on Those of a Particular Race
  • Dress Code Policies May Be Different for Men and Women But Cannot Impose a Greater Burden on One Gender or Stereotype a Gender
  • A District Must Negotiate With Employee Unions Regarding Dress Codes
  • Practical Considerations – Academic Freedom
  • How to Fashion Dress Codes to Deal With Your Specific Needs
• Student Dress Codes
  • The College Campus And Public Forum Principles
  • Regulating Disruptive Clothing and Appearance
  • Apparel Restrictions Must Serve a Compelling Interest
  • Dress Codes Must Be Narrowly Tailored
  • Key Components of a Student Dress Code
• The Public’s Expression on Campus
  • Public Access
  • Use of District Facilities:  The Civic Center Act and Equal Access
  • Union Use of District Facilities:  Email And Mailboxes
  • Restricting Access To School Premises
  • Disturbance of Public Board Meetings
• District Liability for Free Speech Claims
  • First Amendment Guarantee
  • Taking Precautionary Measures