Academic journal article The University of Memphis Law Review

Constitutional Law-Maldonado V. City of Altus: Forbidden Languages and an Examination of English-Only Legislation and Its Relation to the First Amendment

Academic journal article The University of Memphis Law Review

Constitutional Law-Maldonado V. City of Altus: Forbidden Languages and an Examination of English-Only Legislation and Its Relation to the First Amendment

Article excerpt

Historically, people around the world have viewed the United States as a "melting pot"1 of cultures, a place where all people come for freedom and equality. Due in part to this belief, the United States has seen a sharp increase in immigration in recent years.2 Of these immigrants, over half arrive from Latin America,3 and many of them do not speak English or have a limited grasp of the English language.4 In response to this influx of immigrants, various states, municipalities, and private businesses are seeking to limit the languages witii which tiieir employees communicate at work5 through controversial statutes and policies.6 Naturally, employees have challenged these actions on a number of bases. A common ground for many challenges to English-only restrictions is that these policies violate individuals' First Amendment free-speech rights as guaranteed by the United States Constitution.7

One such First Amendment based challenge occurred in January 2006 when the United States Court of Appeals for the Tenth Circuit examined a municipal policy that sought to deter its employees from speaking in languages other than English in the workplace.8 The municipality instituted the policy in a purported effort to pre-empt possible safety issues that could arise because of employees' inability to communicate clearly with their peers because of a language barrier. Using the Supreme Court's test for retaliatory free speech, or post hoc cases, the court held that the city's English-only policy did not violate municipal employees' First Amendment free-speech rights because the employer had no motive to quash speech on a "matter of public concern," which means the policy did not prohibit municipal employees from exercising their constitutional rights and speaking about issues of importance to the general public. Maldonado v. City of Altus, 433 F.3d 1294, 1313 (lOtii Cir. 2006). The Tenth Circuit erred by applying the test for retaliatory free speech claims instead of die test for prior-restraint claims because the policy at issue served as a prior restraint on the employees' speech and not as a response to past behavior.

The First Amendment of the United States Constitution assures the people of the United States that "Congress shall make no law . . . abridging the freedom of speech."9 Courts have used this guarantee to establish distinct lines of federal jurisprudence in relation to government restrictions on language choice.10 The first, and most well-known, line of jurisprudence developed in the early twentiedi century when a series of United States Supreme Court cases upheld the right of individuals to use foreign languages in the face of statutes designating English as the official written and spoken language of a particular jurisdiction.11 The Supreme Court summarized its view in this line of cases when it stated early on that "the protection of the Constitution extends to all, to tiiose who speak other languages as well as those born with English on the tongue."12 The second line of cases, which developed as an outgrowth of the first line, called upon federal appellate courts to determine to what extent English-only policies are constitutional when applied to government employees in the course of their employment.13 Finally, in a third line of cases, a number of federal courts examined the validity of state laws that denied non-English speakers the right to state services in a language other than English.14 While the issues within these three lines of jurisprudence resonate today, this Comment focuses on the second line discussed above-English-only restrictions in the context of government employment.

The landmark case concerning the intersection of free speech rights and governmental employment is Pickering v. Board of Education,15 in which me United States Supreme Court held that the plaintiffs dismissal from his job violated his First Amendment constitutional right to free speech.16 In Pickering, the school board dismissed the plaintiff from his public school teaching position following a letter he sent to the local newspaper which criticized the county school board's use of funds in the building of two new schools. …

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