A. If a person who provides classroom instruction in a public school engages in speech or conduct that would violate the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio:
1. For the first occurrence, the school shall suspend the person, at a minimum, for one week of employment, and the person shall not receive any compensation for the duration of the suspension….
2. For the second occurrence, the school shall suspend the person, at a minimum, for two weeks of employment, and the person shall not receive any compensation for the duration of the suspension….
3. For the third occurrence, the school shall terminate the employment of the person….
B. For the purposes of this section, “public school” means a public preschool program, a public elementary school, a public junior high school, a public middle school, a public high school, a public vocational education program, a public community college or a public university in this state.
What a silly bill. First, what’s the point of this sort of micromanagement by the legislature? I would guess that in most schools, teachers’ vulgarities will get them disciplined by administrators even without a state statute. Moreover, I would assume that such discipline can be more finely calibrated than the statute suggests — is it really obvious that a high school teacher who swears in the classroom three times in his career (perhaps given some extenuating provocation) must be fired?
Second, the FCC standards are notoriously vague, as this Second Circuit decision (now being reviewed by the Supreme Court) laid out. The standards have shifted dramatically over time, and by subject matter. I assume that even under the FCC’s current, more restrictive, standards a classroom discussion at Arizona State’s law school on the “Fuck the Draft” case can use the word “fuck,” but who knows, given the FCC standards?
Now, to be sure, the government acting as employer has considerable authority to restrict its employees’ speech, even when the restrictions are vague, at least outside the context of university teaching. (For cases striking down as unconstitutionally vague certain restrictions on speech in university teaching, see Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996); Silva v. University of N.H., 888 F. Supp. 293 (D.N.H. 1994).) And some such restrictions are necessary. Even government employers must be free to discipline employees for rudeness to coworkers or to members of the public, even without a clear definition of “rudeness.” Likewise, teachers who say cruel things to their students should be disciplined even without a clear definition of “cruel,” and the same may apply to inappropriate vulgarities. But this sort of judgment, it seems to me, is best handled through internal employment decisions that are based on administrators’ judgment of what works for this particular job, at this particular grade level in this particular subject at this particular school, not through the legislature calling on administrators to apply federal communications law standards that are confusing even to communications lawyers.
Third, the bill on its face potentially applies even to off-the-job speech (and “conduct”), since it covers any “person who provides classroom instruction in a public school” without limiting it to action while providing classroom instruction in a public school. That, though, is a comparatively minor drafting glitch that could be easily fixed in the legislative process — unlike the other problems I identify. [UPDATE: Just to be clear, by “potentially” I mean that the language can be so interpreted, not that it will necessarily be so interpreted; the glitch is in the ambiguity, not in the language unambiguously applying to off-the-job speech.]
Now I’m not saying such a bill would necessarily violate the First Amendment, at least setting aside the possible vagueness problems at the university level, and limiting the bill to on-the-job speech. Public employers are entitled to speak, for instance by teaching particular subjects to students in a particular way. To speak, they need to hire employees to speak for them. The employers must therefore have the right to dictate what employees who speak on the employer’s behalf say, and to fire employees who turn their government-provided platform into the employee’s own show rather than the government’s. (I think that’s true even as to public universities, possibly setting aside some heightened vagueness concerns. For good institutional reasons, such universities give their professors a good deal of flexibility, but if UCLA demanded that I teach a particular set of topics in my class, or teach them from a particular viewpoint, or teach them without using certain words, I think UCLA would be within its constitutional authority.)
But that the state may do this doesn’t mean it should do this — and here, I see no good reason for the state to enact such a law, and good reasons for it not to.