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Derek Shaffer, executive director of the Stanford Constitutional Law Cener, is quoted in The Wall Street Journal Law Blog about a case in which a state trouper is suing to be reinstalled in his old job after having been fired because he belonged to an organization affiliated with the KKK:
We knew this was a great First Amendment case, but we just couldn't for the life of us remember the law on it. So we called up Derek Shaffer, a con law prof at Stanford, to help us dissect the case. (Oddly enough, Shaffer was recently quoted in an Omaha World-Herald article about Nebraska’s flag burning law.)
"One of the two questions involved here," said Shaffer, "is what to do with a binding arbitration decision. It's quite difficult to get arbitration decisions overturned. A lower court judge has thrown out the arbitration decision, but the [supreme court] might say that’s not possible." (Click here for a discussion on the Arbitration blog about common grounds for vacating an arbitration decision.)
"Now we get to the con law question," continued Shaffer. "There is First Amendment jurisprudence that entitles public employees to certain rights of speech and association. First you ask whether the employee’s speech is speech on a matter of public concern. I'd assume that this speech, whatever some might think of the merits of speech associated with the KKK, is speech of public concern. And if that’s the case, then the second step is to balance the employee’s speech interest against the employer’s interest in regulating the workplace. Given that this is a law enforcement officer, and given the nature of the KKK’s message, I’d think the state has a strong interest in ensuring that law enforcement officers aren’t perceived to be racist."
Shaffer said precedent might be a case called Pickering, in which a teacher was fired for griping to a newspaper that the school was spending too much money on sports.