The U.S. Supreme Court's Agency Approach to the First Amendment Rights and Duties of Public Employees

• Pages: 54-59
• Date: 01 January 2025
• Author: Daniel Harris

54 THE BRIEF❭ Winte r 2025

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VOLUME 54, NUMBER 2, WINTER 2025. © 2025 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY

NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION.

PUBLISHED IN

THE BRIEF,

VOLUME 54, NUMBER 2, WINTER 2025. © 2025 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY

NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION.

ZIMMYT WS/ISTOCK/GETT Y IMAGES PLUS VIA GET TY IMAGES

e U.S. Supreme Court’s Agency

Approach to the First Amendment

Rights and Duties of Public

Employees

By Daniel Harris

Because agency law fell out of favor in the legal academy

more than a century ago, modern scholars generally over-

look the agency basis of many legal rulings and doctrines.1

They are missing a lot. As illustrated by two recent U.S. Supreme

Court decisions, agency principles come into play whenever

courts must decide whether to attribute the acts of an individual

to an articial entity and, therefore, often guide jurisprudence in

contexts normally associated with other areas of law.2

By way of background, the law of agency denes what it

means for one person (an agent) to represent another person (a

principal).3 Its cardinal precept is that the act of an agent within

the scope of the agency is treated as the act of the principal,

whereas the act of an agent outside the scope of the agency

belongs to the agent personally.4A key corollary of public sector

agency law is that the acts of government agents are govern-

mental acts only if the agent exercised some actual authority

delegated to the agent by the government. Apparent authority

does not count.5

Twice in the last three years, the Supreme Court has used

these ideas to dene the First Amendment rights and duties

of public employees. A 2022 decision involved a high school

football coach who was red because he knelt in prayer at the

50-yard line after football games, contrary to orders from the

school district.6 The Court held that the coach was engaged

in private speech protected by the First Amendment, and not

speech on behalf of the government that the government had

a plenary right to control, because the coach was not acting

to fulll “his duties as a coach,” even if “a reasonable observer

could (mistakenly)” have thought otherwise.7The Court said

that the coach could have been red if he had misused his

authority as a coach to coerce others to join him in prayer but

found no evidence he had done so.8

A 2024 decision involved a city manager who posted about

his job on his personal Facebook page, blocked a critic of

pandemic restrictions from responding to his posts, and then

was sued by the critic for allegedly engaging in government

censorship violative of the critic’s First Amendment rights.9

The Court held that liability depended on whether the city

manager had actual authority from the government to post

about his job on behalf of the government and had purported

to use that authority in the relevant posts (factual issues left

for the lower court after remand).The Court emphasized that

actual authority was required; the mere appearance that the

city manager had been acting in a governmental capacity was

not enough.10

Taken together, these two decisions establish the rule that

the First Amendment rights and duties of public employees

depend largely on whether the public employee was acting in