King County, Wash. is this year’s First Amendment Scrooge

UPDATED (DEC. 20, 2022): FIRE thanks our hundreds of supporters who emailed King County to urge it to abandon its unconstitutional office decoration policy. The policy singles out religious holiday decorations for suppression in virtual workspaces. 

The county’s reply to our supporters denies that the policy violates the First Amendment. They claim the policy is “content-neutral” and is necessary to avoid the appearance that King County favors any particular religion. 

Well, no.

The policy isn’t even viewpoint-neutral — let alone content-neutral — because it bans only decorations expressing religious views. To enforce the policy, the county has to look at an employee’s decorations and make a judgment about whether they express a religious viewpoint. The Supreme Court considers such viewpoint-based censorship an “egregious form of content discrimination.” 

What’s more, no reasonable person would think the religious decor in an employee’s personal workspace, real or virtual, is an endorsement of that religion by the county. Just as nobody would think the county roots for the Yankees because their logo is visible in an employee’s home office during a Zoom meeting.

FIRE stands by its call for King County to bring its holiday decoration guidelines in line with the First Amendment.

If you work for King County in Washington, you better make sure you don’t have a Christmas tree or menorah visible in the background during a work Zoom meeting. Or a nine-pointed star, for that matter. That’s according to an internal memo from the county’s human resources department that forbids employees from displaying religious symbols in their virtual workspaces. 

King County’s selective targeting of religious views for suppression violates its employees’ First Amendment right to free speech (and likely their right to free exercise of religion, as the First Liberty Institute recently pointed out).

Talk radio host Jason Rantz obtained a copy of the memo, titled “Guidelines for Holiday Decorations for King County Employees,” from a county staffer. The guidelines start by telling staff that the county “remains committed to honoring the diversity in its workforce” and that as a public institution, it “cannot appear to support any particular religion.” 

The memo goes on to say: 

Some employees may not share your religion, practice any religion, or share your enthusiasm for holiday decorations. Displays of religious symbols may only be displayed in an employee’s personal workspace. Religious symbols should not be displayed in or as a background to an employee’s virtual workspace.

A personal workspace is defined as “an area occupied by a single employee that is not generally accessible to the public,” such as an individual office or cubicle. Non-religious holiday symbols like snowflakes, holly, and pumpkins are permitted (as long as you don’t worship those objects, I guess).

King County should immediately revise its holiday decoration guidelines so they no longer single out employees based on the views their decorations express.

Here’s our memo to King County: Government employees retain First Amendment rights, even while they’re at work. And if there is one thing the First Amendment doesn’t tolerate, it’s viewpoint-based censorship. The county can’t tell its employees they can display decorations celebrating the holidays only if those decorations don’t represent anything on the county’s list of forbidden viewpoints, religious or not. The county might be treating all religious views the same, but it’s still singling out religious views vis-à-vis non-religious ones. 

You can’t ban Christmas trees while allowing Festivus poles. 

A government employer has an interest in running an efficient operation. But concern that some employees might be offended by the sight of a Christmas tree or made uncomfortable by their colleague’s dharma wheel pendant doesn’t release the county from the strictures of the First Amendment. Symbols or images expressing political beliefs (such as a pride flag or a Gadsden flag) might cause friction between employees too, and it’s unclear if the county allows those. If it does, this would be more evidence that the county is simply discriminating against religious viewpoints.

The restrictions on employees’ virtual workspaces also aren’t justified by the county’s concern about appearing to support religion — or the county’s general authority to regulate employees’ job-related speech. Earlier this year, the Supreme Court in Kennedy v. Bremerton School District upheld the right of a high school football coach to pray quietly on the 50-yard line after games on both free speech and free exercise grounds. The Court rejected the idea that everything public employees say in the workplace is “government speech subject to government control” and explained the coach was not “seeking to convey a government-created message.” It also made clear that a public employee’s private religious speech in the workplace does not automatically trigger an Establishment Clause violation. 

Similarly, the virtual backgrounds that King County employees choose — and certainly whatever words or imagery are visible in their home workspaces when they’re on a video call — are the employee’s own speech, not the county’s, and therefore retain robust First Amendment protection.

King County should immediately revise its holiday decoration guidelines so they no longer single out employees based on the views their decorations express.