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INTRODUCTION

As we approach another election season, the Foundation for Individual Rights in Education (������ýapp�ٷ�; thefire.org) remains concerned by the continuing trend towards preemptive censorship of political speech on our nation’s college and university campuses.

Major election cycles are perennially accompanied by censorship of political activity and expression on college and university campuses. As the 2016 presidential primaries proceed, FIREhas already written letters to American University and Georgetown University Law Center after each institution prevented students from campaigning for their chosen candidates on campus, claiming their institutional tax-exempt status under Section 501(c)(3) of the Internal Revenue Code required that they censor student expression. Similar reports from colleges and universities across the country continue to arise as the 2016 election season continues.

Unfortunately, censorship of political expression on campus occurs every election cycle. In 2008, faculty and staff members at the University of Illinois were told that they could not participate in a wide variety of political activity on campus, including wearing a pin or button in support of a political candidate and placing partisan bumper stickers on their cars. The same year, at the University of Oklahoma, students and faculty were notified that they could not use their university email accounts to disseminate any partisan or political speech, including “political humor/commentary.” During the 2012 presidential election campaign, a student at Ohio University was forced to remove a flyer from her dormitory door criticizing both Mitt Romney and Barack Obama and, at Christopher Newport University, a student group was prevented from protesting a campus appearance by vice-presidential nominee Paul Ryan.

These and similar cases demonstrate that the problem of college and university censorship of political speech is not new and is not going away. In fact, the U.S. House Committee on Ways and Means’ Subcommittee on Oversight held a hearing on March 2, 2016, on the dangers to political speech on campus.

In determining policy regarding political speech, colleges and universities must heed Internal Revenue Service (IRS) regulations, as well as state and federal law. However, correctly interpreted, none of these legal authorities are in conflict with the equally crucial duty to uphold the First Amendment and basic principles of free expression on campus.

In October 2004, weeks before the presidential election, FIRE issued a statement outlining ways in which universities could “prove themselves as models for democratic discourse” instead of resorting to censorship. In 2008 and 2012, we updated our statement with specific guidelines for faculty, staff, and student speakers on campuses both public and private. Now, in 2016, we again present an update of our Policy Statement on Political Activity on Campus in the interest of securing the right to political activity and expression on campus for all students and faculty who choose to exercise it.

SUMMARY

FIRE and student groups at public colleges and universities enjoy the full protection of the First Amendment and must be free to engage in political activity, expression, and association on campus. FIREand student groups at private colleges and universities are entitled to that degree of freedom of expression and association promised them in institutional handbooks, policies, and promotional materials. It is important to note that the overwhelming majority of private colleges and universities provide extensive promises of free speech in their materials and therefore should be held to standards comparable to those required by the First Amendment.

Like students, faculty at public colleges and universities enjoy a broad right to engage in partisan political speech when such expression occurs outside the parameters of their employment-related activities. This right allows for a wide variety of political speech, while the list of activities in which faculty at public universities may not participate is comparatively narrow and easily understood. Faculty may be prevented, for instance, from fundraising in class, making statements in support of candidates or a party on university letterhead, or otherwise offering oral or written public support for a candidate or party in a manner that could be reasonably perceived as attributable to the university.

Faculty at private colleges and universities enjoy the right to free speech as specified in their contracts with their employing institution. If freedom of expression is guaranteed, the faculty members of private institutions may engage in partisan political speech without impacting the tax-exempt status of their institution when such speech is not likely to be identified as officially representing the views of their employing institution. As a general rule, the presumption should be that faculty are not speaking on behalf of the university. It is, however, possible to overcome this presumption. Faculty who also serve in an administrative capacity are accordingly more likely to run afoul of rules preventing the appearance of official endorsement.

Non-faculty employees of universities do not enjoy the same political speech protections as students and faculty.

While universities and colleges that are tax-exempt under are prohibited from participating in political campaigns as institutions, individual students, student groups, and faculty members do not endanger their institution’s tax-exempt status by engaging in partisan political speech when such speech is clearly separate and distinct from the institution’s views or opinions. The presumption is that such speech does not represent the views of the university as an institution. Moreover, this presumption applies with particular vigor when speakers clearly indicate that they are not speaking for the university. The risk of appearance of institutional endorsement may be greater when the speaker is a high-level university administrator, but it decreases as one moves down the chain of command to lower-level administrators. Additionally, this risk does not apply to students or student groups, or to faculty who do not hold a position as an administrator or department head.

At public universities, partisan student groups may use institutional resources and facilities for partisan political expression and activities when the use of such resources and facilities is obtained in the same way that nonpartisan student groups obtain such use. Similarly, students and student organizations at private institutions promising freedom of speech are not prohibited by IRS regulations from using student activity fees to engage in political speech and activity. They may also use institutional resources and facilities for such speech, again provided that these resources are made available to all speakers and student groups, and they follow the same procedures observed by all other student groups seeking to obtain use of university resources.

ANALYSIS

FIRE

By law, students at public universities enjoy the full protection of the First Amendment on campus. This protection has been affirmed by decades of Supreme Court jurisprudence. The Court has stated, for instance, that “state colleges and universities are not enclaves immune from the sweep of the First Amendment,” and that there is no basis in the Court’s jurisprudence for the proposition that “First Amendment protections should apply with less force on college campuses than in the community at large.” Healy v. James, 408 U.S. 169, 180 (1972). The Court has consistently upheld the notion that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.’” Id.

When it comes to partisan expression, it is important to remember that a core purpose of the First Amendment is to protect political speech from official censorship or interference. As the Supreme Court has declared, “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Elsewhere, the Court has emphasized that “speech concerning public affairs is more than self-expression; it is the essence of self-government,” reflecting “our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” (internal quotations omitted). Given these principles, it becomes clear that the right to engage in partisan and political speech is unequivocally enjoyed by students at public universities.

FIRE at private universities are entitled to receive that degree of freedom of expression promised them in university publications like handbooks, codes of conduct, and promotional materials. Courts have held in several cases that private universities must live up to these types of promises, based on a contract theory. See ; ; . Likewise, the U.S. Court of Appeals for the Seventh Circuit has stated that “the basic legal relation between a student and private university or college is contractual in nature. The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract.“ (internal quotations omitted). Therefore, students at private colleges or universities that promise speech rights to their students are entitled to engage in a wide variety of partisan and political speech.

FIRE who attend private colleges that promise free speech rights should enjoy the same level of free speech protections as students at public colleges and universities. Given that it is difficult to attract students to schools that promise them few or no rights, most colleges promise robust free speech rights in their materials. Indeed, of the 440 colleges and universities rated in ������ýapp�ٷ�’s 2016 report on campus speech codes, only seven private institutions granted so few expressive rights as to be listed as “warning schools.” As FIREwarns prospective students, these schools clearly and consistently state that they hold certain values above a commitment to free speech.

In California, students at non-sectarian private universities enjoy the same First Amendment protection afforded their public university counterparts by virtue of California’s “Leonard Law” (California Education Code § 94367). See . Given that students at public universities enjoy the right to disseminate a broad range of partisan and political messages, private university students in California enjoy the same right by virtue of the Leonard Law.

Student Groups

Generally speaking, the freedoms afforded student groups mirror the freedoms afforded individual students. Student groups at public universities enjoy First Amendment rights of free expression and association. Student groups at private universities enjoy those freedoms promised them by handbooks, codes of conduct, and promotional materials.

Student Groups at Public Colleges and Universities

At public universities, student groups must be able to freely express the political viewpoint of their choice. Like the speech of individual students, the speech of student groups must be limited only by the very few exceptions to the First Amendment’s protection of free expression (including obscenity, intimidation, true threats, incitement, and harassment—as defined by law, not by university regulation) and by reasonable, viewpoint- and content-neutral time, place, and manner regulations. This means that student groups must be allowed to publish, sponsor, advocate, denounce, or otherwise engage in political expression as they see fit.

Student groups at public universities must also be free to determine their own qualifications for membership and leadership, thus exercising their First Amendment right to freedom of association. Public universities must recognize and allow liberal groups to be liberal, libertarian groups to be libertarian, and conservative groups to be conservative. Denying a political or ideological student organization the right to associate with other students who share the group’s beliefs deprives them of their full freedom of association, a basic right guaranteed by the First Amendment.[1] Moreover, public universities may not target particular political or ideological student groups for forced inclusion on account of their viewpoint—no matter how unpopular their views are on campus—because such viewpoint-based restrictions are an especially pernicious violation of the First Amendment.

Further, student groups at public universities may not be denied access to funds or university resources available to other groups on account of their partisan commitments. The Supreme Court noted in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 851–52 (1995), that student activity funds, when comprised of student activity fees, are “a fund that simply belongs to the students.” Therefore, activities, events, speaking engagements, and other partisan activities funded by the student activities fund are not institutional activities. When a public university decides to use student fees to fund a multiplicity of independent student groups, each student group retains its status as a private party expressing its personal viewpoint and cannot be censored by the university, nor cautioned against using allocated fees for “partisan purposes” or other political speech. If a public university denies such funding to a student organization because of its partisan message or ideology, it is engaging in unlawful viewpoint discrimination. Id. at 834.

With regard to political activity on student groups’ websites and hyperlinks to politically-oriented student groups’ websites on the university’s official website, universities sometimes attempt to limit such speech out of concern that links to student websites, or even links to third-party websites on linked student websites, might be construed as the university’s own political expression. However, a university’s official website does not automatically become implicated in a linked website’s political activity. The presumption in such cases should be that the speech is not attributable to the university, and this presumption should be overcome only where the speaker represents himself or herself as speaking on behalf of the institution to the extent that a reasonable person would believe this to be the case.

Indeed, Section 501(c)(3) of the Internal Revenue Code, discussed in further detail below, on a tax-exempt university’s official website to be free of campaign activity. Whether a university website’s links are partisan must be determined by an ad hoc assessment of all relevant facts and circumstances, including the context for the link on the organization’s website, whether all candidates are represented, any exempt purpose served by offering the link, and the directness of the link between the organization’s website and the web page that contains material favoring or opposing a candidate for public office.

Thus, even if a university’s main website linked to student organizations’ websites that actively campaigned for individual candidates, so long as the university’s website provided those links in a viewpoint-neutral manner, consistent with its exempt educational purpose, and did not appear to favor some candidates over others (by, e.g., giving favorable arrangements to websites campaigning for a specific candidate, or excluding only those websites that campaign for a specific candidate), the university would not have engaged in prohibited political activity by linking to student websites with partisan political content.

Student Groups at Private Colleges and Universities

Student groups at private universities, while not protected by the First Amendment, are entitled to exercise those freedoms promised them in university materials, literature, and policies. As is the case with individual students, the promises made by a private university regarding student groups’ rights are enforceable under a contract theory. Therefore, if a private university states in its materials that students and student groups on campus are entitled to robust expressive and associational rights, it must live up to its promise.

As discussed below, student groups at private universities do not endanger their university’s 501(c)(3) tax-exempt status by engaging in partisan speech, even if using university resources, when those resources are made available to all speakers and student groups, regardless of political viewpoint, and when partisan student groups follow the same procedures observed by all other student groups in obtaining use of university resources.

Faculty

Faculty members at public colleges and universities have traditionally been accorded robust speech rights under the rubric of academic freedom. The Supreme Court stated decades ago that “[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation,” because “[s]cholarship cannot flourish in an atmosphere of suspicion and distrust.” Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). Therefore, the Court has held that academic freedom is a “special concern of the First Amendment” and that “[o]ur nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to teachers concerned.” Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (internal citations omitted). In recognition of the essentiality of academic freedom, most colleges and universities—both public and private—have adopted the American Association of University Professors’ (AAUP’s) statements on academic freedom. This is relevant both in terms of the promises made by universities regarding professors’ academic freedom and in terms of the expectations that faculty members hold.

Further, individual state constitutions, state case law, collective bargaining agreements, and faculty resolutions may provide additional protections or rights beyond those enunciated by the First Amendment or federal case law. Faculty members at public universities are encouraged to consult these sources when considering the scope of their speech rights on campus.

At the same time, faculty members at public colleges and universities, like other public employees, may sometimes be restricted in what they say by their employer. The Supreme Court’s 2006 decision in Garcetti v. Ceballos, 547 U.S. 410 (2006) held that “when public employees make statements pursuant to their official duties . . . the Constitution does not insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421. However, the Court’s opinion purposefully left unresolved the specific question of whether the same holds true for the speech of university faculty, noting that “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests.” Id. at 425. Given the fundamental importance of academic freedom on a university campus, the fact that free expression is vital to the unique pedagogical work of professors, and that universities are ideally continuously inundated with new and challenging ideas, there is a good argument to be made that Garcetti should not apply in the academic setting.

What remains clear is that faculty at public colleges and universities enjoy the right to engage in a wide variety of partisan political speech. Even under a broad construction of Garcetti’s “pursuant to their official duties” element, faculty members should be free to participate in political rallies on campus, express partisan messages outside of the classroom (for instance, by wearing political buttons), disseminate political speech via email, post political humor and commentary on their office doors, and more.[2] Professors taking part in such activities should be understood to be speaking as citizens on matters of public import, not as faculty members acting pursuant to their job-related duties. Confirming this understanding, the United States Court of Appeals for the Fourth Circuit held in a 2011 decision that a lower court had improperly dismissed a public university professor’s First Amendment lawsuit against his institution. The professor’s lawsuit alleged that he had been denied a promotion due to the conservative political viewpoints he had expressed in his work as a columnist. Adams v. Trustees of the University of North Carolina – Wilmington, 640 F.3d 550 (4th Cir. 2011). In so deciding, the Fourth Circuit found that the professor’s columns were unrelated to his assigned teaching duties and were clearly the expression of a citizen speaking on a matter of public concern. The appellate court further held that the expression implicated the professor’s right to academic freedom, as it is understood that faculty members will provide such commentary as a function of their role as academics.

In another important recent decision, the United States Court of Appeals for the Ninth Circuit ruled in favor of David Demers, a faculty member at Washington State University who claimed that the university had retaliated against him for distributing a pamphlet describing a plan to improve the school’s communications programs as well as excerpts of a draft of a book he was writing. The Ninth Circuit subsequently withdrew its opinion in that case and issued a modified ruling that protects the First Amendment rights of faculty at public colleges and universities even more broadly. In its modified opinion, the Ninth Circuit went beyond its original statement that “teaching and academic writing” enjoy First Amendment protection and—quoting Garcetti itself—ruled that speech “related to scholarship or teaching” (emphasis added) is also protected.

Moreover, the presumption must be that a professor’s political speech represents his or her own views, not the views of the university as a whole. This presumption is overcome only in exceptional situations, such as when a professor implies that he or she actually is speaking on behalf of the university. Otherwise, it makes little sense to attribute every faculty member’s expression to the institution, as such a diverse cacophony of voices rarely, if ever, produces a singular, coherent message. Therefore, unless a university can demonstrate that a professor’s political expression threatens the proper functioning of the university and that its interest in preventing such disruption , he or she enjoys the right to speak, even post-Garcetti.

While working, faculty at private universities and colleges enjoy the right to free expression promised them in their contractual agreements with their employing institution. Of course, when not working, private university faculty members enjoy the fullest protection of the First Amendment as private citizens.

Staff

Non-faculty employees of universities do not enjoy the same political speech protections as students and faculty. Under Garcetti, staff at public universities making political statements pursuant to their official duties can presumptively be disciplined for engaging in political speech. Again, individual state constitutions and state case law may provide for additional protections or rights beyond those enunciated by the First Amendment or federal case law. Staff members at public universities are encouraged to consult these sources when considering the scope of their speech rights on campus. Staff at private universities must follow their employer’s regulations.

It is important to note that student-employees at both public and private schools should be accorded the same speech rights in their capacities as students as their peers. Too often, colleges forget the “student” part of the student-employee equation. FIREshould not give up their rights to freedom of expression or association as a function of working for their college.

Colleges and Universities as 501(c)(3) Organizations: Political Activity

In ������ýapp�ٷ�’s experience, colleges and universities often cite their tax-exempt status as justification for banning political activity. Accordingly, it is important to clarify exactly what political activity is and is not prohibited by the Internal Revenue Code, and how to know the difference.

Background

Private colleges and universities usually operate as 501(c)(3) nonprofit organizations. This means that, as nonprofit institutions incorporated exclusively for educational purposes, they are exempt from paying federal income tax under . Although public colleges and universities are exempt from federal income tax as government instrumentalities under , many also apply for exempt status under Section 501(c)(3).

Section 501(c)(3) restricts qualifying nonprofit organizations from participating or intervening, directly or indirectly, in a political campaign on behalf of, or in opposition to, any candidate for public office. 26 C.F.R. § 1.501(c)(3)-1(c)(3)(ii)–(iii). The IRS has defined prohibited political activity as including, but not limited to, candidate endorsements, contributions to political campaigns, public statements of favor or opposition to a candidate made on behalf of the organization, distributing statements of others favoring or opposing a candidate, or allowing a candidate to use an organization’s assets or facilities if other candidates are not given an equal opportunity. Section 501(c)(3) also restricts qualifying nonprofits from dedicating a substantial part of their activities to attempting to influence legislation. 26 C.F.R. § 1.501(c)(3)-1(c)(3)(iv). An organization found to be in violation risks losing its tax-exempt status and the imposition of excise fines. Whether a 501(c)(3) organization has engaged in prohibited political activity is an ad hoc determination contingent upon examination of “all of the facts and circumstances of each case.” See Rev. Rul. 78-248, 1978-1 C.B. 154.

Application to the Campus Community

Despite the seeming severity of the restrictions on political activity imposed by the requirements of Section 501(c)(3), however, it is extremely important to note that these prohibitions apply to the institution itself and those reasonably perceived to be speaking on its behalf, not to individual students, faculty, or staff engaged in clearly individual, unaffiliated activity. In 2002 continuing education materials, the IRS made clear that “[i]n order to constitute participation or intervention in a political campaign . . . the political activity must be that of the college or university and not the individual activity of its faculty, staff or students.” (Election Year Issues 2002).

There is a greater risk that an individual’s political activity may be attributed to the university as a whole , but this risk diminishes greatly when one moves down the chain of command to lower-level administrators, and it almost disappears completely when one reaches the political activity of students and faculty members who do not also serve as administrators or department heads. As such, many of the fears expressed by administrators at private colleges and universities about partisan student and faculty political activity impacting the university’s tax-exempt status are unfounded.

With respect to students specifically, the IRS has noted that “[t]he actions of students generally are not attributed to an educational institution unless they are undertaken at the direction of and with authorization from a school official.” Election Year Issues 2002 at 365. Consistent with this principle, agency administrative rulings have highlighted several educational contexts in which the partisan political activity of students—even where supported by institutional resources such as funding and staff assistance—does not amount to institutional conduct where there is no evidence of control or influence over students’ activities or message. See (university did not violate 501(c)(3) where political science class required students to work on a campaign of each student’s choosing); (university did not violate 501(c)(3) by providing funds and other resources to student-run newspaper that published op-ed favoring candidate).

Furthermore, as agency educational materials note, “Colleges and universities frequently make facilities available to student groups and others.” Election Year Issues 2002 at 378. While the IRS makes an ad hoc determination on institutional political activity in each case, factors specifically include “whether the facilities are provided on the same basis that the facilities are provided to other non-political groups and whether the facilities are made available on an equal basis to similar groups.” Id.

In sum, to determine the potential impact of student and faculty political activity on a university’s tax-exempt status, some important guidelines should be remembered. First, the political activity of students and faculty, unless reasonably perceived as communicating an official institutional position, generally does not impact tax-exempt status. Second, the use of institutional resources and facilities by student groups for partisan purposes is allowable as long as the groups pay the normal fee (if any) and obtain the use of the resources and facilities through the same process used by all student groups.

To be clear: As long as partisan political activity on campus by students and student groups is neither privileged nor hindered by the institution, and as long as partisan political speech by students and faculty does not overcome the strong presumption that they do not speak for the institution, then the tax-exempt status of universities and colleges will not be affected.

College and University Misinterpretations of Section 501(c)(3)

Despite the existing IRS guidance, many colleges and universities take an overly-cautious, overly-restrictive approach to Section 501(c)(3) compliance, severely limiting or banning student partisan speech on campus or interpreting the use of any university resource by a student or student group as implicating the university in the activity.

Some institutions simply ban campaign activity by students and student groups on campus outright, as was the case at Georgetown University Law Center at the time of ������ýapp�ٷ�’s February 2016 letter to the school. Other schools refuse to recognize partisan student organizations, thereby denying them access to resources and facilities reserved for groups with official recognition. This was the case at American University in late 2015, when it refused recognition to “FIREfor Rand”—supporting the presidential candidacy of Senator Rand Paul—because of its affiliation with a national partisan organization. Fortunately, the university reversed that decision after FIREwrote a letter on behalf of the group. Other institutions prohibit entirely the use of university facilities or resources for partisan political activity of any kind, as at the time of this statement’s release.

Another common approach by colleges and universities allows student organizations to reserve physical space on campus for campaign-related activities, under the same rules applicable to all organizations, but disallows an organization involved in partisan activity from receiving student activity fees or other funding from the college. Many schools allow the reservation of facilities by partisan student organizations, but ban the use of any other type of university resource, such as university email, internet networks, postage, copiers, printers, telephone lines, food services, and other services or equipment. Both approaches unfairly burden partisan political organizations by restricting their access to resources that similarly-situated non-political student organizations may utilize.

A few colleges and universities have implemented policies that provide broad opportunities for students to engage in partisan activities and expression while effectively safeguarding their institution’s tax-exempt status. For example, recognize that “[p]artisan activities by individual students in no way jeopardize the College’s tax-exempt status, as long as those activities do not unfairly appropriate College resources or public facilities.” FIREare expressly permitted to show individual support for candidates, use their institutional email accounts for partisan purposes, and distribute campaign literature in public spaces. Muhlenberg’s policy similarly presumes that the partisan activities of recognized student groups do not jeopardize its status “as long as those activities are not construed to express the position of Muhlenberg College.” Although student groups are prohibited from engaging in partisan fundraising, they are permitted to make partisan endorsements, publish partisan editorials, and host partisan political events.

CONCLUSION

FIRE, student groups, and faculty at public and private universities enjoy a robust right to engage in political expression on campus. This is as it should be; political speech is a unique and vital component of democratic participation in the United States. Accordingly, the ability to create, engage, support, critique, refute, and verify the content of speech are necessary civic skills crucial to the health of our democracy. As the Supreme Court has observed: “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy, 354 U.S. at 250.

But too often—and particularly in election years—FIREconfronts censorship of political expression on campus. The proffered administrative rationales vary from case to case, but they usually revolve around profoundly mistaken ideas about the university’s legal obligations. As we have described here, interpretations that circumvent the function of a university as a “marketplace of ideas” are usually wrong.

Whenever students, student groups, and faculty members are prohibited from engaging in the political issues of the day, our democracy suffers. FIREurges universities and colleges to carefully consider the unique function our institutions of higher education play in fostering debate and discussion on the most important issues of our time, and to greet with deep suspicion any legal interpretation or contrivance that would undermine this crucial role.

NOTES

[1] In Christian Legal Society v. Martinez, 561 U.S. 661 (2010), the Supreme Court held that a public university’s law school did not violate the First Amendment in denying recognition to a student group that sought to accept only those students that shared its beliefs as voting members or leaders. However, this narrow decision rested solely on the school’s unique “all comers” policy, which required all student groups to accept all students, regardless of belief. While the Court deemed such a policy constitutional, it did not mandate the use of such a policy and insisted that those schools maintaining such a policy enforce it evenly. FIREbelieves that “all comers” policies are prohibitively difficult to administer and deny students the opportunity to associate around shared beliefs.

[2] However, state laws may vary in terms of the protections they afford to political speech in the workplace.