Originally appeared in the CAS Weekly Newsletter.
Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

I hope that you can help me out of a jam. Last week, during an otherwise uneventful day, a crowd gathered at the middle school where I am principal. They had signs and were banging on pots. Normally, such carrying on would annoy me, but the vibe was festive and I went out to see what was going on. As it turns out, the crowd was largely parents and teachers who were demonstrating against the governor’s proposed cuts in education funding for the school district.

Happy to support the cause, I joined in and even borrowed a pot to bang on. I had great fun, and it reminded me of being in college. After about an hour, the demonstration came to an end, and I went back inside to another day at work.

I didn’t think another thing of the demonstration until the local paper came out the next morning with a big picture of me (with my name and title in the caption) on the front page under the headline “Noisy Demonstration Disrupts School.” I figured that this was not good, and the phone rang shortly thereafter to confirm my premonition. My superintendent was fit to be tied that I had joined in the demonstration, albeit for a good cause. The superintendent asked rhetorically whether I had asked to see their permit for the demonstration (there was none), and he scheduled a meeting in his office tomorrow “to review my actions.” Do I have some sort of free speech claim to get out of this mess?

Thank you,
Running Scared

Dear Scared:

Your best bet here is to go hands-up and admit a lapse in judgment. Pushing back with a free speech claim will only antagonize the superintendent. There are several concerns here.

First and foremost, school property is a place of business, and the superintendent and the board of education have the authority to decide how property dedicated to use for school purposes will be used. When you saw a demonstration on school property, you should have alerted the superintendent to determine whether that use of school property was authorized.

Second, school boards and superintendents must be careful about what uses they permit for school property. To be sure, you were pleased to bang on a pot to protest education-funding cuts. But school districts cannot pick and choose based on the content of speech. Once the district opens up school property to demonstrations for one cause, it will have opened up a forum for speech, and it cannot then discriminate against other groups on the basis of their speech. Rather, the school district would be obligated to permit demonstrations by other groups, even those with unwelcome messages.

Third, you did not have any “free speech” rights to join in. On your own time, you have the right to demonstrate and otherwise speak out on matters of public concern (as long as your speech does not disrupt the operation of the school district). However, in this case you were at work, which decidedly is not a forum for free speech.

One may hope that by reciting this multi-part mea culpa at the upcoming meeting with the superintendent, you will be forgiven. Good luck to you.