Walla Thoughts

A CITY TATTOO POLICY

June 14, 2021

Mayor and City Council

15 N. Third

Walla Walla, WA 99362

Re: The First Amendment, tattoos, and employee speech

Dear Mayor and Council:

We are city residents who have a professional interest and expertise in U.S. constitutional law. We are writing in response to the City Attorney’s presentation to the Council and the general public on September 21, 2020 regarding the legal implications of the possible adoption by the Council of a tattoo policy.

Given the disruption caused by a Nazi tattoo approved under current employment policies, we believe it is of high importance that the Council, the administrative staff, and City employees, as well as the public at large, have a clear understanding of constitutional law in the area of tattoos and free speech, and we are thankful that the City Council invited the City Attorney to make a presentation publicly.

The presentation raised several questions for us that we believe need to be addressed. In particular, the presentation created confusion as to the precise constitutional rule that governs the situation raised in both the recent controversy and in the hypothetical case Councilmember Riley Clubb posed regarding a swastika tattoo.

On October 22, 2020 we wrote to the Mayor asking him to convey our concerns about the presentation to the City Attorney and to request that he respond to the questions raised (see attached letter). Mayor Scribner has replied that he presented our memo to Mr. Donaldson, who, to the best of our knowledge, has declined to comment.

In the absence of a response, we contacted the American Civil Liberties Union of Washington for their counsel regarding constitutional law relevant to tattoo policies for public employees in jurisdictions governed by the U.S. Court of Appeals for the Ninth Circuit.

As the attached letter indicates, the ACLU-WA agrees 1) that the questions we posed in our October 22, 2020 letter are the relevant ones to raise in this context; 2) that it is possible to frame a policy that will pass Constitutional muster in the Ninth Circuit; and 3) that a tattoo policy needs to be part of a larger package of actions to address biased policing. (To confirm the ACLU-WA’s second point here, we visited the websites for multiple municipalities within the Ninth Circuit and, although the specific content varies from city to city, all have policies regulating tattoos.)

In order to ensure clarity regarding constitutional law in this area, we now request that the Council solicit from the City Attorney his responses to the questions in our October 22 letter and make them publicly available. Because it is important that the public have trust in the City and its employees as well as confidence that all City services will be delivered equitably and free from discrimination based on race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability, the Council needs to understand what options are legally available to achieve these ends. We also hope that the Council will eventually consider adoption of a narrowly drawn tattoo policy that is compliant with current constitutional law.

Thank you for your consideration.

Jack Jackson, JD, PhD

Associate Professor of Politics, Whitman College

Timothy Kaufman-Osborn, PhD

Baker Ferguson Professor of Politics and Leadership Emeritus, Whitman College

Barbara Clark, JD

Walla Walla Mayor and City Council Member (retired)

October 22, 2020

Re: The First Amendment, tattoos, and employee speech

Dear Mayor Scribner,

We are writing in response to the City Attorney’s presentation to the Council and the general public on September 21, 2020 regarding the legal implications of the possible adoption by the Council of a City tattoo policy.

For us as city residents and constituents, the presentation raised a number of questions that we believe need to be addressed. In particular, the presentation created, for us, confusion as to the precise constitutional rule that governs the situation raised in both the past case and in the hypothetical case Councilmember Riley Clubb posed regarding a Swastika tattoo. Given that our inquiry concerns a matter of law, we are hoping that the Council will solicit a legal memo from the City Attorney addressing the questions we present.

I. Speech of Citizenry v. Employee Speech

A. It is not clear why the NSPA v. Skokie case cited by the City Attorney was central to his analysis. The First Amendment allows the Ku Klux Klan to hold rallies (see also Brandenburg v. Ohio, 1969), but it would be quite a leap to then say that Brandenburg requires the City to hire Klan members or permit its employees to walk around with swastikas at work. Critically, neither Skokie nor Brandenburg involves the regulation of speech in an employer/employee context.

B. As the City Attorney mentioned, a different constitutional standard governs the speech of public employees. The Supreme Court said in the landmark case of Pickering v. Board of Education (1968): "It cannot be gainsaid that the State has interests as an employer in regulating speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general."

C. The Court’s doctrine in this area has been elaborated in cases subsequent to Pickering such as Connick v. Myers (1983), and Garcetti v. Ceballos (2006). In the Garcetti case, Justice Kennedy articulated a two-step First Amendment inquiry when the Government is the employer and the speaker is the employee:

1) Is the employee speaking on a matter of public concern? “If the answer is no, the employee has no First Amendment cause of action.”

2) If the speech is on a matter of public concern, is there an “adequate justification” in restricting the employee’s speech? This requires “a delicate balancing of the competing interests surrounding the speech and its consequences.”

D. The interest of the State as employer does not appear to be confined to a narrow standard of “efficiency.” For example, in Rankin v. McPherson (1987), the Supreme Court explained that the “mission of the public employer” was a State interest to be weighed and that “attention must be paid to the responsibilities of the employee within the agency. The burden of caution employees bear…will vary with the extent of authority and public accountability the employee’s role entails.” In Rankin, the Court suggested that a clerk with no contact with the public would have more leeway for controversial speech. In that case the plaintiff “was not a commissioned peace officer, did not wear a uniform, and was not authorized to make arrests or carry a gun.” The implication is clear: the State’s interests in regulating the employee’s speech would have been greater if she was a police officer rather than an employee with duties that “were purely clerical.”

II. The Rule/Rulings of the Ninth Circuit

In the September 21 presentation, the City Attorney made several references to the fact that Walla Walla is located in the Ninth Circuit. It is true that the Ninth Circuit provides First Amendment protection to both tattoos and tattoo parlors (see Anderson v. City of Hermosa Beach, 2010). But this in no way alters the critical distinction between speech in an employer/employee context and speech by the citizenry in general. It is unclear if the City Attorney was referencing any Ninth Circuit cases involving the State as a public employer and a speech claim by a public employee.

Questions for City Council and the City Attorney:

1) Are the tattoo questions in the current police background check referred to by the City Attorney constitutional? If yes, would it be constitutional to ask the same questions about tattoos and memberships of applicants for other City positions that include direct contact with the public and/or discretionary decision-making?

2) Does the doctrine developed in Pickering, Connick, Rankin, and Garcetti govern the free speech situation raised by the past Nazi tattoo and/or the hypothetical case raised by Councilmember Riley Clubb (an applicant for a police officer job with a swastika tattoo)?

3) If these cases govern, are the tattoos:

a) private expression or do they constitute speech by a citizen “addressing a matter of public concern”? Would a tattoo that, according to the employee, represents a personal memorial to a friend rise to the level of speech addressing a matter of public concern?

b) If a swastika tattoo did qualify as speech addressing a matter of public concern, what State interests might be in play? Is there a State interest in maintaining public confidence in the frontline workers who deal directly with the public and make discretionary decisions, including police officers? Is there a State interest in ensuring that such employees are committed to the 14^th Amendment’s command that no person shall be denied the Equal Protection of the law? Is there a State interest in ensuring a non-hostile work environment for racial and religious minorities?

c) In a small city the size of Walla Walla where police officers and other frontline city employees are well known in the community during their off-duty hours, would the exposure of such inflammatory tattoos in public places while off duty also have a damaging effect on the public’s confidence in the employee’s fair administration of city services?

4) Under Rankin, is it true that more exacting standards may be required for police officers and other frontline employees than for city employees whose duties are “purely clerical”?

5) Are there Ninth Circuit cases ruling on the free speech claims of public employees that offer particular guidance in this area? If so, can the City Attorney direct the City Council and the public of Walla Walla to those Ninth Circuit decisions?

6) Has the City Attorney considered Stephen Allred’s law review article titled Rejecting the Tattooed Applicant, which analyzes numerous cases relating to municipal tattoo policies and finds ample grounds for regulation by cities (see Stephen Allred, Rejecting the Tattooed Applicant, Disciplining the Tattooed Employee: What Are the Risks?, 67 Lab. L. J. 475 (2016))?

Given the utmost importance of having a clear understanding of the constitutional law in this area, we ask that City Council seek answers to the questions we have posed here. We also ask that these answers be made public.

Thank you for your consideration,