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On The Front Lines

Rutherford Institute Attorneys Win Free Speech Case in Kansas

"Prevention of Hostile Work Environment Policy" Violates First Amendment Rights of City Employees

--A federal judge has ruled in favor of Topeka city employee Kyle Erickson, and others like him, who faced disciplinary action for having emblems, symbols or other "racially or sexually offensive" markings on their private vehicles under a new "Prevention of Hostile Work Environment Policy" instituted by the city administrator. Erickson displayed a mock license plate with a Confederate battle flag and the words "Heritage Not Hate" on the back windshield of his car.

Topeka's hostile work environment policy was implemented after a city employee claimed to be offended by the display of a Confederate battle flag symbol. In response to this incident, Topeka created a hostile work environment policy stating that "no car with a racially or sexually insensitive marking will be allowed to be parked on city work sites or employee parking lots. A city employee who desires to continue to display such emblems must park their car somewhere else." The policy did not specify what punishment an employee would receive if the policy was not followed. Rutherford Institute affiliate attorneys filed suit in Kansas federal court, asking that the policy be struck down as "unconstitutional on its face because of its censorship of protected speech." The city of Topeka argued that the policy was justified because it eliminated a potential hostile work environment before it had begun. In his May 2 ruling, U.S. District Court Judge Sam A. Crow held that Erickson's display of the Confederate flag as an expression of his Southern heritage was protected speech on a matter of public concern. Absent proof that speech like Erickson's was liable to disrupt the workplace, it could not be prohibited. "The Supreme Court has made it clear that the government may not prohibit speech ... based solely on the emotive impact that its offensive content may have on a listener," stated Judge Crow.

"Any broad censorship of all speech a government bureaucrat finds offensive is bound to lead to dead silence in public workplaces borne of fear," said John W. Whitehead, president of The Rutherford Institute. "The trial judge saw through Topeka's argument and struck a blow against 'Big Brother' speech policies."

The Rutherford Institute is an international, nonprofit civil liberties organization committed to defending constitutional and human rights.

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