Advisers to unemployed can’t have official bios with Bible verses

Wednesday, December 17, 2008

Two advocates who assist employees in Michigan with unemployment benefits did not have a First Amendment right to have religious messages included in their biographies with a state agency, the 6th U.S. Circuit Court of Appeals has ruled.

In a case that implicated several First Amendment principles — including the government-speech doctrine, public-forum doctrine, establishment clause and viewpoint discrimination — a three-judge 6th Circuit panel unanimously ruled against the advocates in Grosjean v. Bommarito.

The Michigan Department of Labor & Economic Growth’s Unemployment Insurance Agency — or UIA — determines whether employees qualify for unemployment benefits. Those workers who receive an unfavorable result can appeal through the UIA’s advocacy program. This program features advocates — attorneys or others familiar with the process — who offer advice to the workers. The advocates, who are independent contractors rather than state employees, submit their biographical information on an “Advocate Profile Form” (APF).

Before December 2006, advocates could include in their profiles messages and short narratives. Andrew and Glenda Grosjean included Bible verses in their APFs. Andrew, who is a licensed attorney in California but not in Michigan where he resides, included in his listing the verse Isaiah 56:1: “Thus saith the Lord, Keep ye judgment and do justice: for my salvation is near to come.” Glenda included in her profile the verse Micah 6:8: “And what doth the LORD require of thee, but to do justly, and love mercy, and walk humbly with thy GOD?”

Some workers selected the Grosjeans because of their religious messages. However, another advocate informed the advocacy manager of the biographies’ religious content. The manager struck the biblical references, believing they were not relevant to the program. The Grosjeans then sought to include the religious-based messages without the specific citations to biblical chapter and verse. However, the UIA also objected to these proposals and then removed a number of other non-religious statements by other advocates.

The UIA then instituted a new program that did not allow personal narratives or statements like those at issue in this case. The Grosjeans sued several leaders of the UIA, contending their First Amendment rights had been violated.

A federal district court rejected the Grosjeans’ arguments and granted summary judgment to the state defendants in August 2007. The defendants had argued that they had a right to censor the Grosjeans’ religious messages for fear of a possible violation of the establishment clause, the part of the First Amendment that ensures separation between church and state. The federal district court determined that an included disclaimer made clear the statements were made by the individual advocates, not the state agency. The court determined that the speech in the APFs was private, not government, speech.

However, the federal district court still ruled against the Grosjeans because it determined that the APFs were a nonpublic forum and that the state defendants had not engaged in viewpoint discrimination. The district court accepted the defendants’ arguments that the speech was censored because it was not relevant to the services the Grosjeans were contracted to provide.

On appeal, the three-judge 6th Circuit panel also ruled against the Grosjeans. In its analysis, the appeals court separated the Grosjeans’ claims against the new APF template and the older template that allowed more personal narratives.

According to the appeals court’s Dec. 4 opinion, the new template is a form of government speech immune from traditional First Amendment challenges. Under the government-speech doctrine, the government has the right to advance its own messages without being subjected to constitutional second-guessing. The Grosjeans argued that the U.S. Supreme Court’s decision in Legal Services Corp. v. Velazquez (2001) should control. In that decision, the Court ruled that lawyers funded under the Legal Services Corporation Act could not be restricted in the type of legal representation they provided. The 6th Circuit distinguished the case, writing: “Legal advice to a client is quintessential private speech; a short bio listing one’s training, education, and experience is not.”

The appeals court said a more difficult question was presented by the older template, because “the personal narrative permitted under the old system is a glaring and significant difference.” Because the court determined that the old template was private speech or a mixture of private and government speech, the court had to apply traditional First Amendment analysis.

Just as the district court did earlier, the appeals court applied public-forum doctrine and determined that the APF list was a nonpublic forum. Under public-forum doctrine, government officials can restrict speech in nonpublic forum so long as they do not restrict speech on the basis of viewpoint and the restrictions are reasonable.

The panel determined that “the Grosjeans have failed to explain how their biblical references were relevant to their roles as advocates in unemployment-insurance cases.” The panel noted that other, non-religious statements were removed from other advocates’ listings, including: “I LOVE A GOOD FIGHT!”, “LET’S GET IT ON!”, and “SCREWED OVER.”

“The UIA’s actions conclusively show a concern that all information in the APFs be relevant, not a concern that all religious viewpoints be removed from the APFs,” the court wrote. “Because the relevancy restrictions were reasonable, content-based restrictions, the UIA did not violate the Grosjeans’ free speech and free exercise rights by excising their biblical references.”

Kevin H. Theriot, senior counsel for the Alliance Defense Fund and attorney for the Grosjeans, said no decision had been made as to whether there would be an appeal. “I don’t think we will file a petition en banc” to the full 6th Circuit, he said in a phone interview. “I don’t know for sure whether we will file a cert. petition to the U.S. Supreme Court.”

Theriot said the appeals panel missed the fact that the Grosjeans were treated differently from other advocates who eventually had their messages pulled or censored. “The court completely ignored the fact that everyone else’s ads that were censored ran for a full year except for the Grosjeans’.”

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