In a major win for protecting individual freedom of speech against government infringement, a federal district court ruled Wednesday that government workers cannot be restricted from engaging in free speech during their personal time and that policies requiring government officials to “pre-clear” messages are unconstitutional.
The case is Cochran v. City of Atlanta. Kelvin Cochran, Atlanta’s fire chief from 2010 to 2015, wrote a short Christian devotional book for men on his personal time while in office. Originally published in 2013, the book is titled “Who Told You That You Were Naked?” referencing God’s question to Adam in Genesis 3 and the fall of man. In the book, Cochran writes orthodox Christian views on marriage and sex.
Keeping with the progressive left’s idea of “tolerance,” Atlanta Mayor Kasim Reed suspended Cochran in Nov. 2014 for 30 days and required him to undergo “sensitivity training.” Reed subsequently fired Cochran on the basis of needing to tolerate diverse viewpoints, even though Cochran’s own viewpoint was not being tolerated and an investigation into the matter found him not guilty of discrimination.
Cochran filed suit, claiming he was terminated for engaging in religious speech, grounded in his Christian faith, in violation of the U.S. Constitution. The City of Atlanta’s defense was that Cochran did not follow the city’s procedural rules to pre-clear any outside employment and that Cochran’s speech left the city vulnerable to employment discrimination claims.
Showing that tolerance is not a two-way street when an individual’s personal beliefs run afoul of the government’s preferred message, the city discriminated against Cochran for engaging in religious speech out of a supposed concern that employees will feel discriminated against by personal, off-work speech.
Yet, Mayor Reed himself said in a statement also published on his social media page shortly after instituting the 30-day suspension, “I profoundly disagree with and am deeply disturbed by the sentiments expressed in the paperback [book] regarding the LGBT community. I will not tolerate discrimination of any kind within my administration.” Reed further said, “I want to be clear that the material in Chief Cochran’s book is not representative of my personal beliefs…”
Apparently, this speech was permissible by a government employee on government time, as there has been no indication Reed had to undergo any sort of sensitivity training or punitive sanction for not tolerating Cochran’s Christian beliefs. It seems only certain messages, particularly those expressing messages of Christian faith, are deemed speech that cannot be tolerated.
Thankfully, the U.S. District Court for the Northern District of Georgia upheld the Constitution and held in its opinion Wednesday that the policies of the City of Atlanta related to restricting non-work speech are too broad and allow the government to unconstitutionally discriminate against particular views.
Requiring employees to obtain permission first or “pre-clear” their speech would be tantamount to prior restraint, effectively allowing government officials to decide which speech they agree with and decline permission to individuals to engage in speech with which they do not agree. Reed’s statements show the personal bias against Cochran’s religious speech.
Alliance Defending Freedom, the organization representing Cochran, issued a statement after the federal court win.
“The government can’t force its employees to get its permission before engaging in free speech,” said Senior Counsel Kevin Theriot, who argued the case. “In addition, as the court found, the city can’t leave such decisions to the whims of government officials. This ruling benefits not only Chief Cochran, but also other employees who want to write books or speak about matters unrelated to work. Atlanta can no longer force them to get permission or deny them permission just because certain officials disagree with the views expressed.”
Jenna Ellis (@jennaellisorg) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is an attorney and professor of constitutional law at Colorado Christian University, fellow at the Centennial Institute, radio show host in Denver, Colo., and the author of The Legal Basis for a Moral Constitution.
If you would like to write an op-ed for the Washington Examiner, please read our guidelines on submissions here.
