Supremes warn over ‘troubling’ view of free speech

By Bob Unruh


The U.S. Supreme Court may eventually bring the 9th U.S. Circuit Court of Appeals into alignment with the First Amendment on the issue of free speech.

But it won’t happen through the case of Joe Kennedy, a high-school football coach in Bremerton, Washington, who alleges his firing was due to the district’s “hostile” attitude toward his post-game prayers.

The high court announced Tuesday it declined to take Kennedy’s case.

Four of the justices said they didn’t necessarily agree with the lower court’s decision against Kennedy but concluded the free-speech issues raised by the case could not be resolved.

Justice Samuel Alito, joined by Justices Thomas, Gorsuch and Kavanaugh, said he was watching the rulings from the 9th Circuit, because its judges’ “understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”

Kennedy’s case had too many “unresolved factual questions” for it to be used effectively, Alito said. For example, the school district provided several different excuses for punishing Kennedy.

“I concur in the denial of the petition for a writ of certiorari because denial of certiorari does not signify that the court necessarily agrees with the decision (much less the opinion) below,” Alito wrote. “In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review.”

The opinion noted Kennedy claims he engaged in conduct that was protected by the Free Speech Clause of the First Amendment.

“The key question, therefore, is whether petitioner showed that he was likely to prevail on his claim that the termination of his employment violated his free speech rights, and in order to answer that question it is necessary to ascertain what he was likely to be able to prove regarding the basis for the school’s action.”

But the opinion said that’s “far from clear.”

Not only was the district judge far from clear, the 9th Circuit was worse, the justices wrote.

“If this case were before us as an appeal within our mandatory jurisdiction, our clear obligation would be to vacate the decision below with instructions that the case be remanded to the district court for proper application of the test for a preliminary injunction, including a finding on the question of the reason or reasons for petitioner’s loss of employment. But the question before us is different. It is whether we should grant discretionary review, and we generally do not grant such a review to decide highly fact-specific questions.”

The opinion said, “Here, although petitioner’s free speech claim may ultimately implicate important constitutional issues, we cannot reach those issues until the factual question of the likely reason for the school district’s conduct is resolved.”

The justices said, “While I thus concur in the denial of the present petition, the 9th Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”

“What is perhaps most troubling about the 9th Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith – even when the coach is plainly not on duty. I hope that this is not the message that the 9th Circuit meant to convey, but its opinion can certainly be read that way.”

It noted that the petitioner still has “live claims” under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964.

The case will return to district court for resolution of the Supreme Court’s concerns.

“The Supreme Court seems to understand that banning all coaches from praying just because they can be seen is wrong and contradicts the Constitution,” said Kelly Shackelford, president of First Liberty, which is representing the coach.

“We are eager to return to the district court, answer the questions the justices raised today, and give the court another opportunity to protect the right of every American to engage in private religious expression, including praying in public, without fear of getting fired.”

Kennedy wants a reversal of a lower-court decision affirming the school’s termination of him because fans and students could see him pray. Last year, a panel at the 9th Circuit ruled in favor of the school.

Kennedy has had public support from individuals ranging from President Trump and Franklin Graham to Hall of Fame football coach Bobby Bowden.

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