Archive: First Amendment and Employees and Public Officials

Who Decides the Meaning of Your Speech?

By John Ferris, Staff Member (Vol. 15)
November 29, 2016

What is your favorite item of clothing?  Whatever it may be, that item of clothing is likely something that has symbolic value to you and it expresses something specific when you wear it.  What if you wore that favorite item of clothing to work one day and were promptly told to go home and change because it offended one of your co-workers?  Is that reasonable?  Doesn’t your co-worker know that your Texas A&M “Aggies” cap doesn’t have any significant offensive meaning and that no one is even sure what an “Aggie” is anyways?

The short answer is that it does not matter.  If your co-worker perceives the symbolic meaning of your clothing to be offensive, it is enough to launch a government investigation into the meaning of your symbol unless management takes prompt action to appease your co-worker.

The situation described above is similar to what happened in Shelton v. United States Postal Service this summer.  In this case Mr. Shelton, who is an African-American, claimed that the Post Office subjected him to discrimination on the basis of race because the Agency failed to prevent one of his co-workers from wearing a cap with the “Gadsden Flag” printed on it.  Mr. Shelton claimed that the Flag had a racist meaning because it was associated with the Tea Party movement, was designed by a slave holder, and had been used in a single incident by a white supremacist organization.  In response, the management of Mr. Shelton’s local Post Office did not require the co-worker to remove the cap because they assessed that the Gadsden Flag had no significant racial connotations.

The formal complaint was dismissed by the Post Office after an internal investigation into the matter but reinstated by the Equal Employment Opportunity Commission (EEOC) on appeal.  The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against an employee because of the person’s race, color, religion, sex, national origin, age, disability, or genetic information.  The EEOC has the authority to investigate charges of discrimination against employers who are covered by Title VII (all federal agencies and most private employers with more than fifteen employees are covered).

The EEOC’s Flawed Method

While the EEOC’s decision to go forward with the case does not mean Mr. Shelton’s claim will be successful, it does mean that the EEOC thinks Mr. Shelton’s claim has potential merit.  The reason the EEOC made this assertion is because of the standard it uses for assessing racial harassment violations of Title VII.

The EEOC, in accordance with the Supreme Court’s decision in Harris v. Forklift Systems Inc., makes the assessment that racial discrimination is present in the workplace when the alleged discriminatory behavior creates a hostile environment.  The court in Harris stated that the standard for assessing a hostile environment requires: (1) An objectively hostile or abusive environment (that a reasonable person would find hostile or abusive), as well as (2) the victim’s subjective perception that the environment is abusive.

However, the EEOC, relying on cases that predate Harris, states in its enforcement guidance that the “reasonable person” standard should consider the perspective of the victim.  This charge to consider the perspective of the victim, while well meaning, creates two subjective factors for assessing workplace harassment where the Supreme Court clearly designed the standard to have one objective and one subjective factor.  This means that the objective meaning that society as a whole gives to symbols is not considered.

The Chilling of Speech by the Threat of Lawsuit

Why does this matter to you?  It matters because specific individuals get to determine the meaning of the symbols that you display rather than you or society as a whole.  When an individual employee gets to legally determine what is offensive, employers must take action to correct the situation or face legal consequences.  In EEOC cases, the consequences for employers found guilty of discrimination can be severe.  Companies with 15-100 employees can be charged up to $50,000 in compensatory and/or punitive damages and the number is as high as $300,000 for companies with over 500 employees.  This is in addition to paying court and attorney fees.

The fact that the EEOC is willing, at a minimum, to investigate discrimination claims based on one person’s interpretation of a symbol while disregarding the meaning that the vast majority of society’s members, of all races, ascribe to that symbol will have a chilling effect on the freedom of speech in the work place.  While freedom of speech in the workplace is already limited, it will likely be further constrained because no employer will be willing to risk the consequences of loss in an EEOC action.

In response to this situation the EEOC should revise its harassment enforcement guidelines and stop relying on cases that existed before the new standard in Harris was laid down by the Supreme Court.  The Court was aware of the previous decisions that incorporated various forms of the victim’s perspective and in a unanimous decision it deliberately chose the objective “reasonable person” standard with no victim caveats.  This change would go a long way towards providing employees with reliable standards for the freedom of speech in their work place while still providing discrimination protection to those who need it.

Coping with Unprecedented Connectivity: Citizens and Police

By Alexander (Alex) M. French, Staff Member (Vol. 14)
May 25, 2016

On April 4, 2015, a North Charleston Police Officer shot and killed Walter Scott. Michael Shlager, the responding officer, reported that he pulled Scott over for a broken tail light. Scott fled on foot and Shlager pursued. Shlager claimed that Scott grabbed Shlager’s Taser and that Shlager shot Scott in self-defense. A bystander’s video showed a conflict far different than Officer Shlager’s report. The video shows Officer Shlager shooting an unarmed Walter Scott in the back as Walter Scott ran away. The video also shows the officer walk back to where the scuffle occurred, pick an object off of the ground and drop it near Scott’s body, many believe this unidentified object was Shlager’s Taser. The sad case of Walter Scott and Michael Shlager shows both the growing importance of video footage as evidence and as a means to hold police officers accountable for their misdeeds.

Most legal conflicts between police departments and citizen-journalists follow a very similar pattern. First the officer arrests the recording citizen for harassment, stalking, or wiretapping.  Second, the police department drops or reduces the charges. Finally, the journalist brings a 42 USCA 1983 civil lawsuit against the police department for violating their First Amendment rights. Most of the case law on this subject comes from 42 USCA 1983 cases on appeal. See e.g.,Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Gravolet v. Tassin, 2009 WL 1565864 (E.D. La. 2009); Robinson v. Fetterman, 378 F. Supp. 2d 534, 538 (E.D. Pa. 2005);.

When an officer arrests a person that is recording him, the would-be journalist’s First Amendment rights are immediately implicated.  When a citizen records a police officer, two legal questions emerge: (1) to what degree are the citizens’ First Amendment rights protected and (2) how reasonable are the officer’s subsequent actions? These questions suggest that one of the problems faced by both police officers and citizen journalists is lack clarity, which can result in the arrests of citizens and bad publicity for police departments. This blog post suggests a solution to strengthen citizens’ First Amendment liberties and to clarify when citizens have a right to record police.

Journalists Interest vs. Law Enforcement Interest

The ubiquity of smart phones in the U.S. creates a universe of opportunities for society, including the opportunity to hold police accountable for their inappropriate actions. The constant presence of recording devices also creates the chance to hold criminal defendants accountable for their actions and exponentially increases the amount of objective evidence admissible in court. However, this opportunity for public accountability comes with its own attendant anxieties and burdens, which usually fall heavily on police officers.

The current state of the law regarding the recording of police officers is that a citizen-journalist has some First Amendment right to record police officers in the pursuit of their public duties, though courts are split on the extent of that right.  In some jurisdictions, the journalist must be “peaceful” and his recording not be performed in the “derogation of any law.Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 1999). In others, the right to videotape public police activity is “subject to reasonable time, manner and place restrictions[.]” Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).  Finally, despite any First Amendment concerns, “police may take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations.” Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 607 (7th Cir. 2012). These limitations are considered to test if an officer was justified in arresting a journalist.

Whenever a police officer and a journalist interact, there are many interests at play. On the one hand, the journalist has some First Amendment right to the information he gathers (especially if that information is about the government), seeAm. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 597-598 (7th Cir. 2012),  and an interest in holding citizens and officers accountable. On the other hand, the State has an interest in protecting the privacy and safety of its citizens and police officers. If the law hews too close to the government’s interests, then some police officers will suppress journalistic activity for convenience sake. If the law hews too close to the journalists’ interests, then police effectiveness could be impaired as soon as a citizen pulls out a cell phone. Further complicating this problem is the reality that smart phone ownership is increasing. Any attempt to “put the genie back in the bottle” will be, at best, a waste of scarce law enforcement resources.

The Consent Requirement

Most state wiretapping and eavesdropping laws have a positive consent requirement that makes them especially susceptible to abuse by police. For example, in North Carolina, a person is guilty of wiretapping if they record a conversation between two people “without the consent of at least one party to the communication[.]” Under this statute, if a third party bystander records a confrontation between an officer and a citizen, the bystander has committed a crime and may be arrested at the officer’s discretion. Unscrupulous officers can easily use this law as a justification to arrest almost anyone who records a police action and seize their camera. In order to prevent unnecessary conflicts between journalists and police, state legislatures should presume consent to recording when a citizen-journalist is recording the public activities of a police officer in an antagonistic situation with a citizen.

Adding the aforementioned provision to police recording statutes would have three benefits. First, the addendum would protect citizen-journalists in the cases in which the citizen pulls out his camera and records an officer arresting a third party, because the citizen-journalist would be presumed to have consent to record the interaction and the wiretapping statute would not apply.  Second, this addendum would protect citizen-journalists in cases of secret recording of blatant police misconduct, as consent would be presumed in those cases as well. Finally, this addendum circumvents any situations in which the police are restrained in their work, because the presumption of consent is shattered as soon as the police officer requests that a journalist stop recording his interaction.

We are all facing the reality that our actions could be recorded and then posted to YouTube.  The First Amendment implications regarding citizen-journalists recording police officers are only a natural extension of that reality. Given the ambiguity surrounding citizen-journalists’ First Amendment rights and police officers’ authority, conflict is inevitable.  The best outcome for all stakeholders (judge, police, or journalist) is to limit legal conflict through legislative amendments to current wiretapping and eavesdropping statutes.

Occupational Speech: The New Hazard?

By Kathryn H. Van Wie, Staff Member (Vol. 11)
April 14, 2013

Since 2002 Texas-licensed veterinarian and Ph.D. Microbiologist, Dr. Ron Hines, has been helping pets and pet owners by giving online advice. Hines offered his advice for a $58 flat fee— or for free to those who could not pay— to pet owners around the world, often helping those who otherwise are without access to veterinary advice. After suffering from a debilitating injury that left him unable to practice, Hines began posting pet-care advice online. Pet owners responded by seeking advice from Hines, where he estimates he has helped more than 700 pet owners.

Although no client ever complained about Hines’ advice, in March 2013 his online practice was shut down and the Texas Board of Veterinary Medical Examiners suspended his license and imposed fines against him. Unknowingly, Hines had been committing a crime for 10 years under a Texas statute, which prevents a veterinarian from giving advice solely over the Internet. Veterinarians must physically examine the animal before administering professional advice. The law does not, however, limit its applicability to Texas or to those who otherwise have access to veterinary care. Rather, the law precludes Hines’ clients from around the globe from relying on his advice, although they have no alternative to help their pet.

Advocates for Hines, including the Institute for Justice, argue that the First Amendment protects the right to seek advice from an expert, wherever they may be. This implicated not only the unsettled question regarding regulated Internet speech, but also the government’s power to control direct speech with clients through occupational licensing.

The Supreme Court held in Holder v. Humanitarian Law Project that professional conduct falls outside of the First Amendment’s scope of protection. Nevertheless, the Court has not addressed directly whether professional speech demands First Amendment protection. Restrictions of commercial speech would affect professionals in legal, financial, and medical fields, whose professions rely on administering advice through speech. In addition, the Court has not agreed on what constitutes commercial conduct versus speech. Hines argues that any advice he gave was “pure speech” because his advice was never followed with any conduct, such as medical procedures or distributing medication.

Although not binding, a three-justice opinion in Lowe v. SEC implied that the First Amendment does not protect advice where a client is seeking an expert opinion. Relying on Lowe, the Eleventh Circuit held a Florida statute regulating an interior designer’s professional speech was not overbroad because it regulated “direct, personalized speech with clients” which has “a merely incidental effect of protected speech.” Again, a lower court applied Lowe, finding a blogger who gave dieting advice on the Internet acted illegally under dietitian-licensing laws. The Supreme Court, however, has not since recognized the language in Lowe.

Up to a third of the U.S. working force is currently affected by licensure requirements, with that number likely to continue to grow. Thus, if the Court were to find under Lowe that advice is not speech, thus not protected under the First Amendment, the implications would extend far beyond Hines and unauthorized practice of veterinary medicine. As more professions are regulated, further speech will be regulated without protection of the First Amendment.

Libel per se: The First Amendment and Limited Recourse for Public Officials

By Gina C. LeBlanc, Articles & Notes Editor (Vol. 12)
February 3, 2013

Scholars have long recognized the marketplace of ideas rationale for the immunity that citizens of the United States enjoy from liability for expressive speech. This theory was addressed by Justice Holmes in his dissent in Abrams v. United States in which he stated: “when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas . . .”. The introduction of the doctrine of seditious libel, however, undercut this foundational First Amendment theory and buttressed a controversial First Amendment limitation: that is, the extent to which opinion speech, political or otherwise, can be suppressed when it fallaciously brings a public official into disrepute. When an opinion contributes little value to advancing public debate or transaction of ideas, the expression itself arguably becomes subordinate to the substantial interest a public official has in being insulated from reputational harm.

This tension is particularly applicable to state-elected judges as highlighted in a recent North Carolina Court of Appeals decision. On April 9, 2010, the defendant, Edward Lee Rapp – media strategist for North Carolina State Senate candidate Bettie Fennell – posted a blog entry on Facebook titled “Dirty Politics by The Good Ol’ Boys.” The post criticized the platform of Fennell’s opponent, William Rabon. More significantly, the post alleged that Ola M. Lewis, Senior Resident Superior Court Judge of Judicial District 13B in North Carolina, was “in clear violation of the seventh canon of the North Carolina Code of Judicial Conduct” (hereinafter “the Code”) for her vocal support of Rabon’s candidacy for a State Senate seat. Shortly thereafter, Rapp received a letter from Lewis’ attorney which refuted this assertion and cited to Canon 7B(2) of the Code (PDF) which states in pertinent part: “A candidate, including an incumbent judge, for a judicial office that is filled by public election . . . is not prohibited from soliciting public support from anyone.”

Following receipt of this letter, Rapp again took to social media on April 12, 2010 and posted another blog entry titled “Apologies, Corrections, Explanations and Amplifications on my Blogs.” In this post, Rapp apologized for his mistaken comment regarding Lewis’ violation of the Code, but framed his apology by stating that he was simply not the proper authority to make such judgments, that “proper disciplinary proceedings” would have been more appropriate, and that he was merely voicing his opinion in conjunction with a conversation he had with his attorney friend who agreed that there was “probable cause” for action to be taken against Lewis on the basis of her expressive conduct. Lewis subsequently filed a complaint alleging that Rapp’s publications were libelous per se. As to the April 12, 2010 post, the North Carolina Court of Appeals found that a genuine issue of material fact existed for jury determination with regard to actual malice, and remanded the case to trial court for which oral arguments began this past Wednesday.

Given that she was engaged in her own re-election campaign, did Lewis have a constitutional right to endorse the candidacy of Rabon notwithstanding her capacity as a state official? Did Rapp’s statements about Lewis qualify as a constitutionally protected opinion, even if relayed under the cloud of a falsehood? In North Carolina, libel per se exists when a publication alone, among other circumstances, tends to impeach a person in that person’s trade or profession. However, the First Amendment places limits on the extent to which a public figure can recover for defamation. The United States Supreme Court has held that generally, “statements of opinion relating to matters of public concern which do not contain provable false connotations are constitutionally protected.”New York Times v. Sullivan presumably heightened the standard of proof for a public official-plaintiff, and established that in order for a public official to recover in a libel action, s/he must prove that the defamatory statement was made with actual malice, i.e. with knowledge that it was false or with reckless disregard as to whether the statement was false. The policy justification for this limitation is based on the above-mentioned marketplace of ideas theory, and the need for a “robust and wide-open debate of public issues.” Whether Rapp’s commentary constitutes socially useful speech is up for debate. Nevertheless, Lewis will have the difficult task of proving that the connotations in Rapp’s blog post were not only false, but were relayed with actual malice. Since Rapp’s refutation of the knowledge element was accepted by the Court of Appeals, Lewis will have to rely on evidence tending to show that Rapp acted with reckless disregard for this falsehood in order to show actual malice – an enigmatic task to say the very least.

The trial of Lewis v. Rapp will unquestionably be laden with First Amendment arguments on both sides. For instance, while formal legal restraints on expression do exist, a plaintiff in a position similar to Lewis’ might argue that the truth of the libel should be an absolute defense. This perspective is reinforced where reputational harm stemming from the falsehood could be fatal to an individual’s profession, as in the case of Ola M. Lewis who would be re-elected to her judicial post based primarily on her reputation, history of conduct in her official capacity, and personal integrity. On the other hand, Rapp is constitutionally entitled to engage in political speech, which should in turn contribute to the “robust and wide-open debate of public issues” — an imperative to fruitful debate in political campaigns. Furthermore, Rapp argued in his April 12 response that “office holders cannot appear to be private citizens.” A subsidiary First Amendment discussion that may ensue is the vehicle through which the allegedly defamatory statement was made: cyberspace. In the realm of cyberspace, should the standard enumerated in New York Times v. Sullivan apply? Should it matter whether the defendant exercises “editorial” control? Case law in this area is not as well-established as it is in the realm of print media.

This case will provide an opportunity for the court to address important remaining questions: how do courts tend to reconcile actual harm caused to a public official while still affording First Amendment protections to an alleged perpetrator? Does proof of actual harm require the public official to demonstrate pecuniary loss or something more? If the former, would monetary damages be a more appropriate remedy than granting an injunction? Finally, did the falsity of Rapp’s statements alone make his First Amendment argument a moot point? In considering these questions, the deliberations in this case have the potential to be a catalyst for North Carolinians to reconsider First Amendment protections as applied to judicial candidates in the realm of political campaigns.

Social Media and Teachers’ First Amendment Rights

By Samantha L. Thompson, Staff Member (Vol. 11)
October 22, 2012

New York City guidance school counselor Tiffani Webb was fired from her job at Murry Bergtraum High School after racy photos of her in lingerie showed up on the Internet. Although this is only the latest in a recent string of educators losing their jobs for online behavior, Webb’s situation is slightly different; the pictures were taken over seventeen years ago, before she became a government employee. Additionally, as the Huffington Post reports, she disclosed her previous modeling career before she was hired by the Department of Education twelve years ago. She had been investigated three times by the DoE, but due to her excellent reviews and track record had always been cleared to work again. In December 2011, just days before she was to be tenured, Webb was fired for “conduct unbecoming” of a DoE employee. A three person panel cited the fact that “[t]he inappropriate photos were a accessible to impressionable adolescents,” in dismissing Webb. She is now suing the Department of Education for wrongful termination, sex discrimination, and violation of her First Amendment rights.

With the rise of social media’s prominence in our society, teacher’s personal lives have been put under a microscope. Educators across the United States have been fired for online behavior. Some of the behavior makes a better case for termination. In Pennsylvania, a teacher was fired (and then later reinstated) for divisive, insulting blog posts about her students. In her personal blog she called her students “rude, disengaged, lazy whiners,” “frightfully dim,” and one student “[j]ust as bad as his sibling.” Other online behavior, however, such as when 24-year-old Ashley Payne was pressured into resigning after posting a picture of herself on vacation holding a beer, raises more eyebrows within the community. A Georgia Superior Court Judge ruled against Payne when she sued to be re-instated.

There is no doctrine governing acceptable online behavior for teachers. Courts are left to decide on a case-by-case basis what is or is not legal grounds for termination. Under Pickering v. Board of Education (391 U.S. 563 (1968)), the Supreme Court held that in the absence of proof of a teacher knowingly spreading false information, he or she has the right to speak out on issues of “public importance” without worrying about termination. Pickering was later distinguished by Garcetti v. Ceballos(547 U.S. 410 (2006)), which held, in a 5-4 opinion by Justice Anthony Kennedy, that public employee statements made pursuant to their employment are given no First Amendment protections; in order for public employee statements to receive protection, statements must be made in their role as private citizens. Courts have attempted to parse these decisions into modern doctrine governing online behavior, but little progress has been made.

Teachers are striving to find a balance between participating fully in social media and censoring their activities as to not offend students or employers. The prominence of social media has left many citizens, not just teachers or public employees, wondering for how long your past will be able to haunt you and affect your future. In this day and age when everything is documented, it seems as if no one can afford to make a mistake.

While the exact nature of permissible teacher online behavior has yet to be determined, it is clear that there must be guidelines outlining acceptable online activities. The issues emanating from social media have taken the courts into new, unprecedented territory. How courts handle this issue under the umbrella of First Amendment protections is surely to be a prominent issue in the near future.

Facebook, The Workplace, and Free Speech

By Deborah A. McDermott
September 3, 2012

Daniel Ray Carter, Jr., was fired for “liking” a page on Facebook. This was not a pornographic, racist, or other website prohibited by workplace rules. It was a Facebook page for a candidate who was challenging his boss, the sheriff of Hampton, Virginia. In mid-August, Facebook and the ACLU filed amicus briefs (PDF) supporting Carter’s constitutional right to express his opinion, signaling this case’s potentially precedent-setting nature.

Carter filed a lawsuit claiming that his First Amendment rights had been violated, which is now before the U.S. Court of Appeals for the 4th Circuit. Mr. Carter’s “speech” raises substantial constitutional questions and creates the appearance of impermissible retaliation for “criticism” of the sheriff’s (his employer’s) office. But Carter’s criticism was tacit to the extent that is arguably not criticism.

The ACLU’s interest was triggered by the United States District Court for the Eastern District of Virginia, Newport News Division’s ruling that “liking” a page does not warrant protection because it does not involve “actual statements.” The ACLU worries if this ruling is upheld, a host of Web-based, simple mouse-click actions, such as re-tweeting (clicking a link to post another’s tweet on your Twitter account), will not be protected as free speech.

The Supreme Court has consistently held (Pickering v. Bd. of Educ., 391 U.S. 563 (1960) and its progeny) that public employees are protected by the First Amendment when they engage in speech about matters of public concern. These rights can be overcome only when the employee’s interest in the speech is outweighed by the government’s interest in the orderly operation of the public workplace and the efficient delivery of public services by public employees.

The Supreme Court has also held that public employees retain their First Amendment rights when speaking about issues directly related to their employment, as long as they are speaking as private citizens (Garcetti v. Ceballos, 547 U.S. 410, (2006)). By posting through his personal Facebook page, Mr. Carter was “speaking” in his own voice and not on behalf of the local Police Department.

Under current law, it appears as though the Hampton, Virginia sheriff’s actions are unconstitutional because Carter used computer technologies to communicate matters of public concern, the election of a sheriff. As new technologies emerge, the law often struggles to keep pace. The First Amendment must be interpreted to protect these new forms of communication. As Rebecca K. Glenberg, legal director of the ACLU of Virginia argues, “Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.”