Can I Wear a MAGA Hat To My Government Job?
Hats and the free speech rights of government employees — a lawsplainer.
Happy New Year! In today’s lawsplainer, I want to talk to you about hats. Three specific hats are on my mind: MAGA hats, the government’s “sovereign” hat, and the government’s “employer” hat.
I’m thinking about those hats because just before the end of the year, the United States Court of Appeals for the Ninth Circuit issued a ruling touching on all three. In Dodge v. Evergreen School District, the Ninth Circuit ruled that Eric Dodge, a sixth-grade teacher from Vancouver, Washington, was entitled to a trial on his claim that school district officials violated his First Amendment rights by threatening to discipline him for wearing a MAGA hat to teacher training. It’s not a groundbreaking case; it doesn’t make any new law. But it’s worth discussing because it’s very clear and a well explained example of a much-misunderstood concept: the free speech rights of public employees.
When a public employee says something controversial, or gets disciplined or fired for speech, we hear a lot of arguments about the employee’s rights. Those arguments are not always well informed by actual law. The truth is more complicated than either “they have an absolute right to say that” or “they’re an employee, they have no rights.”
The government wears two hats in its relationship with its employees: the sovereign hat (the hat it wears when it makes its employees obey the same laws as anyone else, using laws and the justice system) and the employer hat (the hat it wears when it hires, disciplines, and fires its own employees). The First Amendment protects people differently depending on which hat the government is wearing. When it’s wearing its sovereign hat, your rights are at their maximum — the First Amendment applies with full force, and the government can only punish speech that falls into established exceptions. But when the government is wearing its employer hat, treating you as its employee, your rights are significantly limited.
Let’s look at Eric Dodge’s case to see how those limitations work. Dodge attended a mandatory cultural sensitivity training lecture with his colleagues. He wore a MAGA hat to the event, took it off when entering the lecture hall, and left it on the table in front of him. Teachers, including the university professor who was leading the training, complained that they felt “intimidated and traumatized” and a couple of teachers — one of whom cried — complained to the principal. I regret that I am not making that up. Dodge’s principal spoke to him and suggested he was causing inadvertent offense. But Dodge continued to wear the hat, and placed it on his table the next day for the second session of the training. Dodge claims the principal blew up at him and threatened his job. Dodge complained. The district investigated, and found that the principal had singled out Dodge for political expression but had not violated any policy because political expression was not one of the prohibited categories of discrimination under the relevant law. Dodge was not punished, but he sued anyway — the principal, the investigating HR officer, and the school district for violating his First Amendment rights. He sued under 42 U.S.C. section 1983, a familiar statute that provides a remedy when someone violates your constitutional rights under color of state law — that is, while acting on behalf of the state. Section 1983 lawsuits are the most common way government employee’s First Amendment rights are litigated, and they set out a straightforward test.
When a government employee claims their First Amendment rights have been violated, the first question is whether they were speaking on a topic of public concern. Speech on public issues may be protected from employer discipline; speech on private issues are not. Generally this means that if a government employee speaks on social and political issues that are subjects of debate, their speech is public; if they talk about something that’s purely private (like gripes about a co-worker, or the intricacies of some workplace issue), they’re not. Here, Dodge’s MAGA hat represented classic speech on a national political subject — a matter of public concern. If Dodge had worn a hat that said “the coffee in the faculty lounge sucks,” it would not be.
The next question is whether the government employee spoke in the course of his or her job duties, or as a private citizen. The First Amendment doesn’t protect how you carry out your job duties. The president can fire the White House press secretary for swearing at reporters or suggesting that we carpet-bomb Canada or something. This makes intuitive sense — if that speech were protected, the government couldn’t determine how any employee could do their job. The probable exception to this rule is university professors — though the Supreme Court hasn’t decided it yet, state schools probably can’t fire professors for teaching things the state doesn’t like, solely on the grounds that it’s “on the job” speech. But secondary school teachers are definitely covered. You can fire a high school teacher for advocating, say, nazism in a home ec class. Here, Dodge’s wearing a MAGA hat wasn’t part of his job — it was purely private speech. So it was potentially protected.
Next, to show a violation of the First Amendment, a public employee must show that the state actor (whether a supervisor or organization) engaged in an “adverse employment action” against the plaintiff as a result of their speech. Sometimes that’s easy — the employee is disciplined or fired. Other times, as in this case, it’s less clear. An “adverse employment action” is an action that would chill or silence a person of “ordinary firmness” from speaking out. So — a disapproving look from your boss isn’t enough, but a threat to fire you is. Here, the Ninth Circuit found that the principal’s alleged threats against Dodge were enough to qualify, but the HR investigator did nothing that qualified.
Next the plaintiff must prove that his or her speech was a “substantial motivating factor” in the employer imposing the adverse employment action. It doesn’t have to be the only reason — just a substantial part of the decision. Here, it was undisputed that the principal acted because of Dodge’s MAGA hat.
If the plaintiff proves all of that, the burden shifts to the government employer to justify the action. Under the so-called “Pickering balancing” test (named after the 1968 Supreme Court case that established this doctrine) the government must establish that it had a legitimate administrative interest in preventing or punishing the speech that outweighed the employee’s interest in exercising their First Amendment rights. This is the point at which employer-hat analysis diverges widely from sovereign-hat analysis. When the government is wearing its sovereign hat and wants to punish a citizen, there’s no such balancing of interests; the speech is either protected or it falls into an exception. The government can show a legitimate administrative interest by showing that the speech actually disrupted workplace function, impaired discipline or workplace harmony, or impeded the government agency’s ability to do its job.
If that sounds subjective, it is. But the more the employee’s speech resembles core First Amendment expression (like political speech), the harder it is for the government to make this showing. In Dodge’s case, the Ninth Circuit found that his wearing and possessing a hat with a popular political motto was core First Amendment speech and that, though a few people might have been offended (notably, even the very liberal Ninth Circuit strongly implies these people were unreasonably sensitive), there was no proof of actual disruption. The training went forward, there was no riot, there was no evidence that the business of the school suffered.
There’s a couple of things you should notice about that test. First, it encourages what amounts to a heckler’s veto by government employees and citizens who don’t like another government employee’s speech. Had other teachers, parents or students pitched a huge fit, held marches, boycotted class, or otherwise disrupted the school, the analysis could have gone differently. That’s a perverse incentive to censor. Another thing to notice is that the MAGA hat was an extremely mild mainstream common expression to almost everyone. It may be offensive to the sort of university professor who teaches cultural sensitivity training, or to the sort of teacher prone to cry over hats, but — and I use the word very deliberately — normal people are not unhinged over it. They may not wish to be friends with someone who wears a MAGA hat but they do not view their existence as threatened by someone owning one. More extreme speech can have very different results, particularly when the public employee is in a job that depends on public trust. So there’s a long line of cases where police officers’ participation in racist groups is accepted as a basis to fire them, because it disrupts the polite fiction that law enforcement officers are not racist and their testimony against people of color can be credited. Had Dodge worn a “Jews Will Not Replace Us” hat, the result would have been different.
There’s one last thing to know about public employees’ First Amendment rights. Even when they’re violated, there may not be a remedy. That’s thanks to a judicially created doctrine called “qualified immunity,” which says that state actors aren’t liable for violating rights that aren’t “clearly established.” In theory, this means if a court substantially expands the boundaries of a constitutional right, a government employee isn’t held liable for not anticipating that expansion. In practice, it means that government employees have a privilege to be rather ignorant of the rights of others. Here, the trial court found that Dodge’s First Amendment right not to be threatened with termination for wearing a MAGA hat wasn’t “clearly established,” so the principal was protected by qualified immunity. The Ninth Circuit disagreed, finding that it was very well established that the government can’t punish state employees for private political expression. Qualified immunity analysis generally goes better for plaintiffs in First Amendment cases than in cases involving other rights. First Amendment precedents are read broadly, whereas federal courts tend to indulge in “well, we haven’t ruled you can’t shoot a left-handed man in green socks on a Tuesday” in considering Fourth Amendment rights. Remember: this entire defense of qualified immunity is simply fabricated out of thin air by courts.
So: the end result for Eric Dodge is that he gets to go to trial on his claim against the principal (or, much more likely, get a settlement). His rights as a public employee are not a bright-line sort of thing, but they are determined by a series of factors that are known, using precedent that is known. Bear that in mind next time someone starts yelling about a public employee having inviolable free speech rights or none.
“the polite fiction that law enforcement officers are not racist”
Speaking a s resident of the other Vancouver, please don't carpet-bomb Canada. We are mostly nice and even our politicians are not too radicalized. Thank you. And sorry for interrupting.