Fire in a crowded theater: Is it really a free country?

Joe, a veteran and avowed atheist (turns out there ARE some atheists in foxholes), goes for his yearly physical at the local Veterans Administration-run medical clinic. He’s escorted to one of the exam rooms, where medical technician and devout Catholic Tammy takes his blood pressure and medical history prior to the doctor’s arrival.

While Joe is not surprised to see that Tammy wears a crucifix necklace, he IS surprised to note that Tammy keeps an open Bible on the counter in the room.

Joe casually mentions to Tammy that he played golf yesterday with another doctor in town. Tammy says, “He’s a nice man, but I can’t condone his lifestyle. He prescribes birth control, which is clearly a sin.”

After Joe leaves the clinic, he grows more annoyed at Tammy’s unsolicited dig at his friend. He didn’t ask for her opinion and thinks it’s inappropriate that she foisted her Catholic-inspired opinion on him in a professional setting. Further, while he’s not crazy about the crucifix, he feels that the open Bible crosses a line.

That evening, he tells his wife that he plans to complain to the V.A. His wife responds: “It’s a free country! Tammy’s got freedom of speech and freedom of religion. The First Amendment says so!”

Is Joe’s wife right? Does the First Amendment guarantee Tammy’s right to say and do what she wants at work?

First things first: We try to find the answer in the plain language of the statute:

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 U.S. Const. amend. I

Well, when you put it that way…

Note the first words: “Congress shall make no law….” So… the First Amendment applies only to acts of Congress. This means that, if we’re not talking about a government action, the First Amendment is not triggered at all.

It’s important to understand that “Congress” has been interpreted to include not only laws passed by the federal government, but to the actions of state and local governments as well. (The 14^th Amendment applies the federal Constitution to the states.) Also, subsequent Supreme Court cases have held that—in some very narrow instances--some non-government entities are considered to be “the government” for Constitutional purposes. In other words, a private company or citizen CAN violate a person’s First Amendment rights only if the private company or citizen is:

1) Serving a public function typically performed only by the government (a company town won’t allow residents to peaceably assemble) OR

2) Working with the government where the state is so heavily involved in the private activities that the state and the private actor essentially become one (state public housing project contracts with a property management company that refuses to rent to Hispanics)

Fun side note: Because I work for the government, I’m a state actor during the day and a private actor at night. Sometimes for fun, I jump in and out the door of my office and yell: “State actor inside! Private actor outside!” (Not really.)

So where does this leave Joe and Tammy?

Can Tammy’s employer forbid her to wear a crucifix to work? Can her employer forbid her to keep an open Bible on the counter? Can Tammy’s employer forbid her to offer her opinion of Joe’s friend’s lifestyle? Is Tammy, as an agent of the federal government, violating the First Amendment’s Establishment Clause? In other words, do her open Bible and religious comments mean that her government employer is promoting Catholicism?

Tammy is an employee of the federal government. She works for the V.A., so there’s no need to wonder if we have a government actor here. Still, even if we agree that the V.A. is a government actor here, it doesn’t seem possible that an employer (even a government employer) can’t tell its employees what to do.

Tammy’s freedom of speech

A government employer can restrict an employee’s speech unless the employee is commenting on a public concern UNLESS the speech would disrupt the employer’s business so much that it would outweigh the employee’s right to freedom of speech. (See Pickering v. Board of Education, 391 U.S. 563 (1968) Stated another way, we’re balancing the harm of the statement with the public’s need to hear the statement. Tammy’s statement that Joe’s doctor friend is sinning when he prescribes birth control seems to be of little public interest, and the public’s need to hear this statement is not outweighed by the harm (alienating a patient, for one thing). Tammy’s employer can restrict her speech.

Tammy’s freedom of religion

A government employee has the right to express his or her faith so long as it does not interfere with her work setting. (Draper v.Logan Cnty. Pub. Library, 403 F. Supp.2d 608) Tammy can wear her crucifix, but the open Bible might be seen as too disruptive to her work. Certainly, her comments regarding Joe’s doctor friend would be seen as disruptive. Also, it’s unlikely that Tammy’s comments regarding sin and birth control would be construed as a protected exercise of her religion. (Her religious rituals do not include offering Bible interpretations at work.)

Tammy’s establishment of a religion

A government employer can prohibit religious expression when a reasonable person would view the expression as the government’s endorsement of religion (Logan, again). Certainly, no reasonable person would interpret Tammy’s personal jewelry as the V.A.’s encouragement of Catholicism. On the other hand, I think a reasonable person could see the open Bible in the exam room or an employee’s statements as V.A.-sponsored religious expression—particularly the open Bible.

            I think Joe has some pretty strong grounds for complaints here. What do you think?