Expressions Set To Determine Retail Transparency and Fate

By Katelyn English

Across the United States, retail sale prices inform consumers about merchandise’s monetary value. Most Americans will see a store product’s sales tag amount, ready their wallet at the cash register and consider that price as a factor in their choice of payment method.

Pew Research Center shows nearly six out of ten, roughly 58 percent of adults report having credit card bills as part of their regular expenses. Yet, a New York statute bans sellers from announcing credit card surcharge prices, stating fines and jail time as legal penalties. Some retailers see this as their truthful commercial speech, protected by the First Amendment, violated. As the law allows for original price sale inflation and a discount amount for cash purchases via price tag or word of mouth, it denies sellers the right to place on a price tag or say—surcharge— to inform customers about credit card swipe fees (Volokh).

On October 3, 2013, five retailers brought suit against New York State’s Attorney General and District Attorneys from New York, Kings and Broome Counties questioning the constitutionality of New York General Business Law section 518. The United States Court for the Southern District of New York originally presided over the case noting the statute surfaced after the lapse in Congress’s 1976 no-surcharge amendment to the Truth in Lending Act, which echoes section 518 saying, “[n]o seller in any sales transaction may impose a surcharge on a cardholder who elects to use a credit card in lieu of payment by cash, check, or similar means” (EXPRESSIONS HAIR DESIGN V SCNEIDERMAN, 975 F. Supp. 2d 430 U.S. Dist. 2013).

The court also said the credit card industry started pushing for state-level no-surcharge laws— again meaning the prohibition of sellers saying or posting the term surcharge for consumer information, not preventing them from obtaining credit card swipe charges via a cash discount scheme—creating laws in ten states similar to New York’s section 518 (Id. at 7). Further, the court points out how credit card companies decided to include contractual no-surcharge provisions in their agreements with retailers. It noted that Visa and MasterCard’s actions in recently dropping these contractual provisions led to the state no-surcharge law’s renewed importance (Id. at 8).

Why would New York retailers not want to charge higher prices for credit card transactions when they are paying a percentage for credit card swipe fees? They can and still do, but not through surcharges as section 518 holds: “No seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means” (N.Y. Gen. Bus. Law § 518). Retailers are essentially left with two options—charge the same price for cash and credit transaction payments or separate prices for cash and credit customers thus describing the difference as a “cash discount” as opposed to a “credit card surcharge” (Salzman, Pacific Legal Blog).

The district court expressed the frustration retailers faced (Id. at 8). It’s case facts show how four of the five retailers in the case charged the same price for all transactions including credit cards for fear of violating the statute. It stated only Expressions Hair Design placed a counter sign notifying its customers of a three percent charge for credit card transactions due to high swipe 3 fee charges by credit card companies. But Expressions even erred on the more cautious side removing its sign and watching its language when a customer who was a lawyer reminded the salon of New York’s no-surcharge law.

In the end, the district court ruled section 518 was unconstitutional. It applied the four-part test established in Central Hudson Gas & Electric Corp. v. Public Service Commission saying the statute deserved “heightened judicial scrutiny” due to the law’s disclosure requirement and outright prohibition on speech (Id. at 12). To meet the test, the district confirmed three test reasons—(1) the retailers’ restricted speech concerned lawful conduct and was not misleading (Id. at 13), (2) the statute does not “directly advance any interest” protecting customers from fraud (Id. at 13), (3) the statute is “far broader than necessary” to prevent fraud (Id. at 14)

However on September 29, 2015, the United States Court of Appeals for the Second Circuit held section 518 did not violate First Amendment—speech. It said the law “regulated only conduct” in that the law “simply prohibits imposing credit-card surcharges,” not “referring to them” or “engaging in advocacy related to them” (EXPRESSIONS HAIR DESIGN V SCNEIDERMAN, 808 F. 3d 118 U.S. App. 2015). The appellate court did bring up United States v. O’Brien. It concluded, however, that the plaintiffs referenced section 518 as regulating exclusively speech, whereby questioning whether the regulated conduct was “inherently expressive” implicating First Amendment protection fell on deaf ears.

Soon after, the United States Supreme Court granted certiorari to review the case. How it will rule as to “[w]hether state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or regulate economic conduct (as the Second and Fifth Circuits have held)” is up for debate (SCOTUSblog).

A time existed when commercial speech received no protection under the First Amendment. Yet, the United States Supreme Court’s attitude towards this began shifting in the 1960s to the 70s seen in the Court’s cases—New York Times Co. v. Sullivan where it held paid advertisement had First Amendment protection despite publication for profit and Bigelow v. Virginia where it ruled Virginia could not criminalize New York abortion advertisements in its state newspapers paving 4 the way for Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., a 1976 case where the Court held the First Amendment affords some protection for commercial speech when it struck down a Virginia law banning pharmacists from advertising prescription drug prices, “truthful information” solely about lawful activity (Sukhatme, Harvard Law).

More recently, the Eleventh Circuit and Eastern District of California heard cases on the constitutionality of state laws prohibiting credit card surcharges holding similarly to the district court in Expressions Hair Design v. Scneiderman.

In November 2015, the Eleventh Circuit held a Florida statute “targeted expression alone,” and that “there is no real-world difference between a surcharge and a discount” meaning the law violated retailers’ commercial free speech in defining price differences between credit and cash sales (DANA’S R.R. SUPPLY V ATTORNEY GENERAL, 807 F.3d 1235 11th Cir. 2015). In March 2015, the Eastern District of California ruled similarly on California’s law. (ITALIAN COLORS REST V HARRIS, 99 F. Supp. 3d 1199 E.D. Cal. 2015).

The Court’s cases have cemented its commitment in granting commercial speech First Amendment protection according to legal enthusiasts, such as Micah L. Berman, who have emphasized the Court’s growing interest in commercial speech’s evolution.

Berman, an assistant professor of Public Health and Law at Moritz College of Law, sums up and interprets what Mermin and Graff write in their work titled The First Amendment and Public Health that the Court’s “commercial speech doctrine is deemed ‘an amalgam of strict scrutiny and intermediate scrutiny,’ leaning ever further in the direction of strict scrutiny” (Berman, The Georgetown Law Journal). He goes further to state that many believe the Court will soon grant full protection to commercial speech, noting a majority of the Court “subscribes to the view” Justice Stevens compiled in Rubin v. Coors Brewing Co—law that deprives information from the public for its own good offends an “informed citizenry,” a primary goal of the Free Speech Clause, violating the First Amendment (Berman).

This case not only has the potential to promote consumer pricing transparency, but it also can cause the “fall in credit card swipe fees” possibly “saving retailers millions” as many economists have predicted (Jenkins and Brooks, Sedgwick LLP). The Supreme Court has the ball in its court to determine the fate of retail and how consumers can be made aware of products they purchase. Because the Court has upheld truthful information flow to inform the public time and again, New York can seemingly look forward to a tough case to win.

 

Works Cited

Berman, Micah L. “Manipulating Marketing and the First Amendment.” The Georgetown Law Journal. Web. 1 Nov. 2016.

Dana’s R.R. Supply v. Attorney General, 809 F.3d 1282, 2016 U.S. App. LEXIS 1190 (11th Cir., 2016)

Expressions Hair Design v. Scneiderman, 975 F. Supp. 2d 430, 2013 U.S. Dist. LEXIS 143415 (S. Dist., N.Y., 2015)

Expressions Hair Design v. Scneiderman, 808 F. 3d 118, 2015 U.S. App. LEXIS 21521 (2d Cir., 2015)

Italian Colors Rest v. Harris, 99 F. Supp. 3d 1199, 2015 E.D. LEAGLE (2015)

Jenkins, Kirk and Meegan Brooks. “Justices Eye Credit Card Surcharge Laws and Free Speech.” LAW360. Web. 1 Nov. 2016.

N.Y. General Business Law § 518 (McKinney 1996)

Salzman, Larry. “Defending the free speech rights of retailers.” Pacific Legal. 22 Nov. 2016. Web. 1 Nov. 2016.

Sukhatme, Neel. “Making Sense of Commercial Speech: A Theoretical Framework and a Case Study in Food and Drug Law.” Harvard Law School. 22 April 2005. Web. 1 Nov. 2016.

Volokh, Eugene. “Supreme Court’s new First Amendment price advertising case – can allow ‘cash discounts’ but forbid ‘credit card surcharges’?.” Washington Post. Washington Post, 29 Sept. 2016. Web. 2 Dec. 2016.

“What Americans Pay For – And How (III. Consumer Credit).” Pew Research Center Social Trends. Pew Research Center, 7 Feb. 2007. Web. 1 Nov. 2016.

First Amendment Rights of Public Employees

Ritomaitree Sarkar
Blog Post
Communication Law

First Amendment  Rights of  Public Employees

Public sector employees enjoy Constitutional protections in the workplace that in many cases their private sector counterparts do not. Until the middle of the last century, it was well established that public employees enjoyed free speech rights under the First Amendment, but that public employers were privileged to substantially restrict the exercise of those rights as a condition of public employment,( Adler v Board of Education, 342 U.S. 485 (1952). Over subsequent years, First Amendment protections of public employees were greatly expanded as the Supreme Court clearly established that public employers could not, as a condition of employment, require public employees to relinquish substantial rights to associate freely with others or to refrain from compelled speech (in the form of loyalty oaths, etc.).  (Wieman v. Updegraff, 344 U. S. 183 (1952); Shelton v. Tucker, 364 U. S. 479 (1960); Keyishian v. Board of Regents, 385 U. S. 589 (1967).

But firstly what do we understand by First Amendment?

The First Amendment to the United States Constitution prohibits the making of any law respecting an establishment of religion, ensuring that there is no prohibition on the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances. (“U.S. Const. Amend. I”)

So in laymen’s language this means, an American retains the right to practice a  religion of his or her choice,  to say just about anything (other than some narrow categories of speech such as obscenity and defamation), the right of a free press, and freedom to assemble peacefully anywhere. In this article I will be focusing more on one pillar of the First Amendment which is freedom of speech.

The questions we will examine here is how far does the First Amendment go to protect the speech of government employees?

Does it allow the government to use a public employee’s speech as the ground for discharge or denying a promotion?

Ironically the answer to the last question according to the Supreme Court at one time was a simple ‘Yes’.

By 1967 the Court took the position that public employment cannot be conditioned on a surrender of constitutional rights. The problem for the Court then became how to balance the government’s interest in maintaining an efficient public workplace against the individual employee’s interest in free expression. (Kevishian.)

Sometimes public employees are disciplined for speaking out against government corruption, belonging to a particular political party, criticizing agency policy or engaging in private conduct of which the employer disapproves. For example, in his book Balancing Act: Public Employees and Free Speech, David Hudson Jr. reveal that public employees have been disciplined for:

  • Criticizing a police policy that placed primarily African-American officers on the front lines of a community-policing project in certain neighborhoods. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
  • Uttering a racial slur at a dinner party. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
  • Complaining that a police helicopter unit was not operating safely. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
  • Refusing to change a college student’s grade from an F to an “incomplete” when the student had attended only three of 15 classes. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)
  • Failing to remove a religious pin from a uniform. (Balancing Act: Public Employees and Free Speech, David Hudson Jr.)

 

In one of the recent examples Robert R. Bennie, Jr., Plaintiff, v. John Munn, et al., in his official capacity as Director of the Nebraska Department of Banking and Finance, 2016 case, Robert (Bob) Bennie, like millions of Americans, was working for a private business but under government contract. What got him into trouble is that the regulators didn’t like Bennie’s political speech. Until November 2010, Bennie worked for LPL Financial (LPL). LPL is a broker-dealer, meaning it holds accounts and assets and executes financial transactions. It operates through agents like Bennie, who deal with customers. As a broker-dealer, LPL is subject to regulation by the Nebraska Department of Banking and Finance (department).

In 2010 The Lincoln Journal Star ran a story about Bennie’s role in the Tea Party political movement. The article quoted Bennie denouncing the government and politicians, including President Barack Obama. (http://journalstar.com/news/local/911/judge-dismisses-bob-bennie-lawsuit-against-state-banking-officials/article_4fd26a84-7c0f-57cb-b4e4-838ad79f39bb.html)

After the article was published Bennie noticed a change of behavior of LPL towards his work. LPL explained that since a recent internal reorganization, Bennie’s proposed advertisements were reviewed by a senior analyst. Department employees asked whether LPL had any guidelines about agents like Bennie publicly communicating their political views. After living under such restrictions Bennie contacted Nebraska Governor David Heineman and told him the department was targeting Bennie and harassing him.

Bennie then sued, arguing that the state regulators violated the First Amendment by retaliating against Bennie through their emails to his employer based on his political speech.

The emails were certainly problematic, because it implicitly pressured LPL to curtail Bennie’s speech to avoid problems with the department. The emails were also evidence of a deeper problem, as the district court found: that the state regulators “were looking for reasons to go after” Bennie and “made regulatory inquiries of LPL that were motivated, to varying degrees, by the content of Bernie’s speech.” ( George Lee, Contributor to Forbes magazine)

For the state regulators to allow their apparent disagreement with or even distaste for what Bennie had to say politically, or how he said it, to influence how the department treated him and his employer was wholly inappropriate and also absolutely inconsistent with the First Amendment. Bennie has filed a petition for certiorari by the U.S. Supreme Court.

Branti (Branti v. Finkel, 445 U.S. 507 (1980) is one of a series of cases in which the court has prevented firings based on the political beliefs of employees. Branti was one of the six assistant public defenders fired from a country defender’s office simply because they were Republicans and the newly appointed County Defender was a Democrat. The court cited that sometimes it may be permissible to use political affiliation as a basis for hiring and discharge decisions (for example no one would doubt the right of the President to hire only cabinet officers or speechwriters that share his or her political affiliation) but said that, assistant county defenders did not hold the type of decision making power that made political affiliation an appropriate consideration. ((Branti v. Finkel, 445 U.S. 507 (1980))

Ten years later in Rutan v Republic party of Illinois (Rutan v. Republican Party of Illinois (88-1872), 497 U.S. 62 (1990) a case involving the staffing of Illinois prisons, the Supreme Court extended protection for political beliefs to initial hiring decisions as well as decisions relating to promotions and transfers.

In 2006 in Garcetti v Ceballos (Garcetti v. Ceballos Supreme Court of the United States, 2006 547 U. S. , 126 S. Ct. 1951, 164 L. Ed. 2d 689) the court considered the First Amendment claim brought by a deputy district attorney in the Los Angeles District Attorney’s office who had been transferred and denied a promotion because of his statements to supervisors criticizing the credibility of statements made in affidavit prepared by a deputy sheriff.

In a 5 to 4 vote the Court rejected the employee’s claim holding that the First Amendment does not protect public employees’ for statement made pursuant to their official duties. According to Justice Kennedy, the critical fact in this case was that “his expressions were made pursuant to his duties as a calendar deputy. Considering the fact that Ceballos spoke as a prosecutor fulfilling his responsibility to advise his supervisor about how to proceed with a pending case-distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline”.

In another case Pickering v. Board of Education (Pickering v.Board of Education
391 U.S. 563 (1968
)
a public school teacher was fired for writing a letter to a newspaper critical of the local school board. In ordering the teacher reinstated the court found that a public employee’s statements on matter of public concern could not be the basis for discharge unless the statement were of the sort to cause a substantial interference with the ability of the employees to continue to do his job.

In Bob Bennie’s case, the circuit court acknowledged that the regulators’ actions were inconsistent with the First Amendment, but affirmed the ruling because two of the three circuit court judges could not find “clear error” in the trial court’s findings on the “ordinary firmness” test.  In a split decision in May 2016, the 8th Circuit upheld the dismissal of Bennie’s lawsuit, but called the banking officials’ conduct wholly inappropriate and “absolutely inconsistent with the First Amendment.” This case now will go to the Supreme Court.

There have been many instances like the above where public sector officers were subjected to harassment because of making opinionated statements regarding the government, religion etc.

In essence the U.S. Supreme Court has carved out an exception to its First Amendment jurisprudence for public employees. Basic free-speech rules that apply outside the workplace sometimes have little relevance for public employees. For instance, that as a general matter the First Amendment prohibits governmental discrimination based on the content or viewpoint of an individual’s speech. For example, a law prohibiting citizens from criticizing elected officials would be impermissible because it would discriminate on the basis of content, allowing praise of government officials but not allowing criticism.

Yet such fundamental First Amendment principles do not always apply to public employees in the workplace. For example, a public employee could be fired for saying, “My superior or co-worker is unqualified and corrupt.” Even though that employee would clearly be expressing a particular viewpoint, the Supreme Court has recognized that “many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees.”

The reason the Supreme Court states is, public employers must maintain efficient operation of the people’s business. For that reason, it is acceptable for government employers to discipline employees for speech that undermines the integrity of the office or disrupts morale. This discipline can take many different forms, including transfer, demotion or even discharge. Unfortunately, government employers sometimes retaliate against employees for speech that concerns an important public issue a matter of “public concern,” as the Supreme Court has termed it. Because public employers and employees both have important interests at stake in these cases, the courts often are faced with the difficult task of balancing these competing interests. The Supreme Court recognizes that government employers must protect business efficiency. But the Court also has said that “the threat of dismissal of public employment is a potent means of inhibiting speech.”(Balancing Act: Public Employees and Free Speech)

If the US Supreme Court does agree to hear the Bennie case it will offer more guidance on how lower courts should proceed to balance the government’s interest in maintaining an efficient public workplace against the individual employee’s free expression.

 

Bibliography

  1. Bob Bennie legal case, the primary source of information for the blog post- http://www.forbes.com/sites/georgeleef/2016/10/15/regulators-retaliate-against-tea-party-activist-for-his-free-speech-and-get-away-with-it/#114a91cd2f68
  2. Free expression in America: A Documentary History by Sheila Suess Kennedy.
  3. Reflections on Freedom of speech and First Amendment by George Anastaplo.
  4. Rutan v Republic of Illionois- https://www.law.cornell.edu/supct/html/88-1872.ZO.html
  5. Rutan v Republic of Illionois- http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-cohen/protection-of-penumbral-first-amendment-rights/rutan-v-republican-party-of-illinois/
  6. Garcetti v Ceballos- Lexisnexis
  7. http://www.kentlaw.edu/faculty/mmalin/classes/PublicSectorSp09/CourseDocs/Garcetti.pdf- Garcetti v Ceballos
  8. https://supreme.justia.com/cases/federal/us/391/563/case.html- Pickering v Board of Education.
  9. Freedom of Speech- A Reference Guide to the United States Constitution- https://www.questia.com/library/117829328/freedom-of-speech-a-reference-guide-to-the-united
  10. Balancing Act: Public Employees and Free Speech By David L Hudson Jr

Courts and Code: Apple and the San Bernadino iPhone

By Abby DeVore, Mary Salisbury

Technology is present in nearly every aspect of modern day society. Most Americans are heavily reliant upon at least one form of technological device. According to the Pew Research Center, 92 percent of Americans own a cellphone and 73 percent own some form of desktop computer or laptop as of 2015. On every individual’s personal device are thousands of text messages, dozens of voice mails and passwords, hundreds of emails, and other personal information people save under the assumption that nobody else, including the United States government, will be able to access them. Privacy of our information, whether virtual or not, has become something most Americans and most major corporations prioritize.

On December 2, 2015 in San Bernadino, California, 14 people were killed and 22 others were injured in a shooting and attempted bombing, both acts of terrorism (Benner, Lichtblau, New York Times). In an attempt to gain knowledge about the shooting and protect against future acts of terrorism, the FBI ordered Apple Inc. to rewrite its encryption safeguards to “unlock” the shooters iPhone. Although the FBI ended up dropping its case against Apple in late March, the initial order “set off a furious public battle on Wednesday between the Obama administration and one of the world’s most valuable companies in a dispute with far-reaching legal implications,” according to the New York Times.

        Technology has undoubtedly complicated the law. The government is now faced with questions as to what qualifies as speech under the First Amendment and what forms of speech are protected in such a technologically advanced world. According to Business Insider, one of Apple’s main arguments against the FBI’s order was that the order was forcing them to rewrite their code which was created to give users privacy. Apple’s CEO, Timothy Cook, as well as the company lawyers believe this order undermined consumers right to privacy and violated their freedom of speech as the First Amendment states that one cannot force another to say or write something they do not want to.

Past cases such as Bernstein vs. the U.S. Department of State, and the Universal City Studios vs. Corley have set precedent for cases similar to Apple Inc. vs. the FBI and may have aided the Supreme Court in deciding if Apple’s argument was valid or not if the FBI had not dropped its case.

In the 1997 case, Bernstein vs. the U.S. Department of State, the Ninth Circuit Court of Appeals ruled that source code was in fact speech protected by the First Amendment and that the government did not have the power to prohibit its publication (BERNSTEIN V U.S. DEPARTMENT OF STATE, 945 F. Supp. 1279, 1997). Daniel J. Bernstein, a graduate student at the University of California at Berkeley challenged the U.S. Department of State, Energy, and Justice’s requirement that he get his creation of the mathematical algorithm he called “Snuffle” approved by the government prior to publishing its source code or discussing it at a mathematical conference. This case set precedence for many future cases in that Bernstein’s source code “Snuffle” was ruled proved to be equivalent to speech.

In Universal City Studios vs. Corley, decided by the Second Circuit Court of Appeals in 2001, Universal City Studios and others took Corley to court for posting “DeCSS,” a computer program that is designed to circumvent “CSS” (UNIVERSAL CITY STUDIOS V CORLEY, 273 F.3d 429 2nd Cir. 2001). CSS encrypts DVDs so they can only be played on authorized technology. Codes are already protected as speech under the First Amendment and laws pertaining to code such as the DMCA, Digital Millennium Copyright Act, are subjected to scrutiny and the scope of protection of code changes in most circumstances. In this case, the DMCA was held as constitutional because the DeCSS was harming plaintiffs by exposing them to piracy and creating a need to work on new, stronger safeguards. This pertains to Apple Inc. vs the FBI case because the FBI asked Apple to create something to decrypt Apple products, thus compromising the privacy and safety of Apple consumers since they assume they have a certain level of privacy from everyone, including the federal government.

The FBI dropped its case against Apple after finding another way to gain access to the shooter’s phone from an outside source, whose methods have not yet been made clear to the public. According to the Washington Post, “the stunning move averts a courtroom showdown pitting Apple against the government — and privacy interests against security concerns — that many in the tech community had warned might set dangerous precedents” (Zapotosky, Washington Post). While this ends the conflict within the courts it does not end the debate on whether the federal government can force a corporation to write code it does not want to write or the debate on what kind of privacy and security one can expect with use of technology. David Pierson, reporter for the Los Angeles Times expects this to lead to “an arms race in encryption tools” until legislation sets guidelines for both tech creators and law enforcers (Pierson, Los Angeles Times).

This case will be just one of many that will change the way privacy, security, and the rights of individuals using technology are viewed in the United States. With this case being dropped by the FBI, there is no longer a chance that it will be seen by the Supreme Court, however it sparked conversation and raised important questions regarding privacy and technology. Now, there may be more of an interest in Congress to create legislation surrounding technological security and the rights of the government.

Works Cited

Lichtblau, Eric, and Katie Benner. “Apple Fights Order to Unlock San Bernardino Gunman’s IPhone.” The New York Times. The New York Times, 17 Feb. 2016. Web. 03 Apr. 2016.

Pierson, David. “FBI vs. Apple: How Both Sides Were Winners and Losers.”Los Angeles Times. Los Angeles Times, n.d. Web. 03 Apr. 2016.

Sterbenz, Christina. “Apple Is Using 2 Main Arguments in Its Epic Fight against the FBI.” Business Insider. Business Insider, Inc, 25 Feb. 2016. Web. 03 Apr. 2016.

“Technology Device Ownership: 2015.” Pew Research Center Internet Science Tech RSS. Pew Research Center, 29 Oct. 2015. Web. 03 Apr. 2016.

Zapotosky, Matt. “FBI Has Accessed San Bernardino Shooter’s Phone without Apple’s Help.” Washington Post. The Washington Post, n.d. Web. 18 Apr. 2016.

Private Companies and Freedom of Expression

By Greg Frank and John Cole

There have been several court cases regarding the right of private employers to restrict the freedom of expression of their employees. The primary piece of legislation referenced in cases concerning this issue is Title VII of the Civil Rights Act of 1964.

Title VII of the Civil Rights Act of the 1964 states, “to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.” This law prohibits the mistreatment of applicants or employees based on religious beliefs, allowing employees to be subjected to various forms of harassment due to religious views, denying reasonable employee accommodation, and the retaliation on behalf of the employer against any employee who participates in protected activity (Liptak). Even with the current law in place for 52 years, there are still cases to this day that require the interpretation of Title VII of the Civil Rights Act of 1964.

There have been some recent examples of this issue being called into question in court. At the end of March this year arguments were heard in the Zubik v. Burwell case. This was a case with seven petitioners, including Pittsburgh Bishop David Zubik and the Little Sisters of the Poor. The respondent in this case was United States Secretary of Health and Human Services, Sylvia Burwell. The clergy are objecting to a rule from the Department of Health and Human Services that states they must provide employees with free contraception or notify the government and have their employees’ health insurance plans provide independent coverage. This case, and other recent ones, deal specifically with freedom of religious expression. The passing of justice Antonin Scalia will complicate this case as the eight-justice panel could be split 4-4 on the issue after Scalia voted in favor of Hobby Lobby in the Burwell vs. Hobby Lobby Supreme Court case which was decided by a 5-4 majority.

The Burwell v. Hobby Lobby case established that for-profit corporations have the ability to opt-out of contraception coverage established in the Affordable Care Act  for religious reasons (Hobby Lobby Case). In Zubik v. Burwell, the plaintiffs are attempting to expand the religious freedom of the corporations which they believe is restricted by a two-page form that employers must fill out explaining their reasoning behind opting out (Banett). The plaintiffs believe employers should not have to fill out the two-page form which exempts them from providing the contraceptive coverage. Despite the issue of religious freedom in compliance with the Affordable Care Act having largely been settled in the Hobby Lobby case, this attempt to expand upon the Hobby Lobby decision is what has the Supreme Court listening to the case.

The Affordable Care Act  was signed into law by President Obama in 2010 and upheld by the Supreme Court in 2012. One of the key mandates in the ACA is that it requires companies to pay for insurance coverage for contraception for their employees. Hobby Lobby, which is a family owned company that specializes in arts and crafts based out of Oklahoma City, Oklahoma, argued that the store should not have to provide contraception coverage to their female employees arguing that the law infringes upon their religious liberty. In September of 2012, Hobby Lobby filed a suit in the U.S. District Court over the ACA’s mandate to provide “four specific potentially life-terminating drugs and devices” (Hobby Lobby Case). In November of 2013, Burwell v Hobby Lobby was taken up by the U.S. Supreme Court in regards to corporations having to provide contraception for their employees despite the employer’s religious beliefs. In a 5-4 vote on June 30, 2014 in the Supreme Court ruled, “the contraceptive mandate, as applied to closely held corporations, violates the Religious Freedom Restoration Act of 1993. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.” (Supreme Court).  As a result, Hobby Lobby does not have to adhere to the Affordable Care Act mandate to supply employees with contraceptive coverage because Hobby Lobby believed that providing the coverage was interfering with the religious practices of its employees (Religious Freedom Restoration Act of 1993).

Another recent case that dealt with religious freedom and employers was EEOC v Abercrombie & Fitch. In 2008, Samantha Elauf at the age of 17, applied for a job at an Abercrombie & Fitch Store at the Woodland Hills Mall in Tulsa, Oklahoma. Elauf, a practicing Muslim, wore a black hijab to the interview, but did not tell her employer why she was wearing the headscarf. Elauf was ultimately not hired because the company claimed her headscarf broke the store’s dress code or “look policy.” After Elauf was denied employment with this Abercrombie & Fitch store, she filed a claim with the Equal Employment Opportunity Commission (EEOC) that she was denied employment based on religious discrimination. The EEOC then filed a suit against Abercrombie & Fitch on the basis that they denied her employment based on religious discrimination and failing to accommodate her religious beliefs by denying her to wear a hijab. Abercrombie argued that it was up to the potential employee (Elauf) to request for accommodation. This case was first heard by the District Court and “granted summary judgement on liability to EEOC” after deciding with the established evidence that Abercrombie was on notice of Elauf’s faith when she showed up to the interview with a hijab and denying her employment was religious discrimination (EEOC). Abercrombie appealed this decision and the case was then taken to the U.S. Court of Appeals for the 10th Circuit. The Tenth Circuit Court sided with Abercrombie & Fitch ruling that the employer was not given sufficient notice of Elauf’s religious beliefs when she interviewed with her hijab and that this would cause a contradiction with the store’s dress code. The case then was heard by the U.S. Supreme Court after the Tenth Circuit ruled in favor of Abercrombie & Fitch. In an 8-1 decision, on June 1, 2015, the U.S. Supreme Court sided with the EEOC over Abercrombie & Fitch. Justice Antonin Scalia stated, “Title VII forbids adverse employment decisions made with a forbidden motive.” and continued on this point during his writing that, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” (New York Times) (Supreme Court).

In conclusion, private employers and companies have religious freedom by being able to deny the mandate in the ACA which states they must provide for contraceptive coverage, but employers do not have the right to use someone’s religious practice to determine whether they are capable of working at their company. However, with the Zubik v Burwell case ongoing, the degree to which employers have the right to provide employees with religious freedom is uncertain.

Works Cited

“Abercrombie Resolves Religious Discrimination Case Following Supreme Court Ruling in Favor of EEOC.” N.p. 28 July 2015. Web. 05 Apr. 2016.

Banett, Carter. “The Zubik v. Burwell Case, Explained.” USA TODAY College. N.p., 18 Apr. 2016. Web. 19 Apr. 2016.

Brodsky, Alexandra, and Elizabeth Deutsch. “How Civil-Rights Law Could Overturn Hobby Lobby.” Bloombergview.com. N.p., 21 July 2014. Web. 5 Apr. 2016.

“Equal Employment Opportunity Commision v. Abercrombie & Fitch Stores, Inc.” SCOTUSblog RSS. N.p., n.d., Web. 05 Apr. 2016.

H.R. 1308– 103rd Congress (1993-1994): Religious Freedom Restoration Act of 1993.” N.p., n.d. Web. 19 Apr. 2016.

“Key Features of the Affordable Care Act.” HHS.gov. N.p.,07 June 2013. Web. Apr 5 2016.

“Know Your Rights: Title VII of the Civil Rights Act of 1964.” AAUW EMPOWERING WOMEN SINCE 1881. N.p., n.d. Web. 05 Apr. 2016.

Levine, Marianne. “Supreme Court Rules against Abercrombie in Hijab Case.” Politico. N.p., 1 June 2015. Web. 05 Apr. 2016.

Liptak, Adam. “Muslim Woman Denied Job Over Head Scarf Wins in Supreme Court.” The New York Times. 01 June 2015. Web. 05 Apr. 2016.

Liptak, Adam. “Supreme Court Rejects Contraceptives Mandate for Some Corporations.” The New York Times. 30 June 2014. Web. 05. 2016.

McGough, Michael. “The Supreme Court Floats a Contraception Compromise.” Los Angeles Times. 29 Mar. 2016. Web. 05 Apr. 2016.

“Questions and Answers: Religious Discrimination in the Workplace.” N.p., n.d. Web. 05 Apr. 2016.

“SUPREME COURT OF THE UNITED STATES: BURWELL VS. HOBBY LOBBY STORES, INC.” Web. 5 Apr. 2016.

“SUPREME COURT OF THE UNITED STATES: EQUAL EMPLOYMENT OPPORTUNITY COMMISION VS. ABERCROMBIE & FITCH STORES, INC.” Web. 5 Apr. 2016.

“Title VII of the Civil Rights Act of 1964.” N.p., n.d. Web. 05 Apr. 2016.

“A Win for Hobby Lobby and Religious Freedom.” The Hobby Lobby Case. N.p., n.d. Web. 05 Apr. 2016.

Content Based Sign Restrictions in Violation of the First Amendment

By Delia Franchi and Taylor Calta

Citizens of the United States have to abide by many laws. However, when it comes to expressing one’s viewpoints, there is a constitutional amendment that protects the people. The First Amendment to the United States Constitution provides that no law may restrict the freedom of speech. With the 2016 Presidential election fast-approaching there will be signs expressing the views on which candidate should win the election. Many towns and local municipalities regulate signage, which raises an important question. What restrictions on signs in the public space, if any, violate the First Amendment?

The United States Supreme Court case City of Ladue v. Gilleo, 512 U.S. 43 (1994), brought about a controversial twist to the public when it comes to signs expressing one’s views. In that case, Margaret P. Gilleo, a resident of Missouri, placed a sign in her front yard expressing her opposition to the war in the Persian Gulf.  While a sign expressing a political point of view may be considered the quintessential form of freedom of speech, it was removed because of a City of Ladue ordinance. After the disappearance of Gilleo’s two signs that she had placed on her lawn, she filed a complaint with police. The police informed her that her signs were prohibited due to a city ordinance. The U.S. Supreme Court ultimately decided the city’s ordinance was unconstitutional and in violation of Gilleo’s right to free of speech under the First Amendment.

Before the Supreme Court, the city argued that its total ban on residential signs except for those that fell within one of ten exemptions did not violate Gilleo’s First Amendment right to free speech. The Supreme Court upheld the lower courts holding that the City of Ladue’s ban on residential signs was in violation of Margaret Gilleo’s First Amendment right to free speech (Ladue).

The ruling supported the Supreme Court’s belief that a city cannot place limits on the free speech rights of residents unless there is a compelling reason. In this case, the city’s desire to decrease clutter in residential areas was an insufficient reason to justify a ban on signage, such as Gilleo’s signs expressing her opposition to the Persian Gulf War (Ladue). As a result, Gilleo’s placement of the signs on her lawn was protected.

The City of Ladue v. Gilleo case acknowledged the U.S. Supreme Court’s devotion to strict scrutiny of governmental attempts to restrict free speech rights. The case also established a guide for future cases where the balance between state regulation of signage and individual rights of expression may conflict (Ladue).

Recently, in Reed v. Town of Gilbert, 576 U.S. (2015), the United States Supreme Court considered whether content-based restrictions on signage violated the First Amendment. In 2005 the town of Gilbert, Arizona adopted a sign code that restricted the size, number, location, and duration of certain signs. Clyde Reed, the pastor of Good News Community Church,  placed 15 to 20 temporary signs in various locations in the town. The sign code compliance manager cited the church for exceeding time limits when displaying signs and for failing to include the date of the event on the sign (Reed et al. v. Town of Gilbert, Arizona).

With religious content seeming like the only reason for the restrictions, Reed and the church filed suit in the United States District Court for the District of Arizona in March, 2008. The church claimed that the sign code violated their freedom of speech under the First Amendment. The District Court granted summary judgment in favor of the town. The United States Court of Appeals for the Ninth Circuit affirmed that ruling, holding that the town ordinance was a content neutral restriction on speech and did not violate the First Amendment. The church then appealed to the Supreme Court of the United States (Reed v. Town of Gilbert, 707 F.3d 1057, 2013 U.S. App. LEXIS 2715 9th Cir. Ariz., 2013).

On June 18th, 2015 the Supreme Court reversed the Ninth Circuit and held that “a town ordinance that places different limits on political, ideological and directional signs violates the First Amendment” (Liptak). Justice Clarence Thomas held that Gilbert’s Sign Code restrictions did not survive strict scrutiny because the ordinance was not tailored to further a compelling government interest.

At the start of this article the question was posed whether restrictions on signs in the public violate the First Amendment. Any restrictions by municipalities must be content neutral, narrowly tailored, and be for a compelling government reason. It will be interesting to see how municipalities with signage restrictions meet that legal criteria.

Works Cited

“Ladue v. Gilleo – The Facts Of The Case, The Lower Courts Rule, The Supreme Court Rules.” – City, Speech, Free, and Residential. N.p., n.d. Web. 05 Apr. 2016.

Liptak, Adam. “Limits on Church Signs Ruled Unconstitutional.” The New York Times. The New York Times, 18 June 2015. Web. 05 Apr. 2016.

REED ET AL. v. TOWN OF GILBERT, ARIZONA, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Reed v. Town of Gilbert, 707 F.3d 1057, 2013 U.S. App. LEXIS 2715 (9th Cir. Ariz., 2013)

“City of Ladue v. Gilleo 512 U.S. 43 (1994).” Justica Law. N.P., 2015. Web. 07 Apr. 2016.

Revenge Porn and the First Amendment

By Megan Dorantes

With the digital age came the ability to easily share information with countless viewers, making the Internet a new public platform. As such, speech on the Internet usually falls under protection of the First Amendment, giving every American the right to post whatever they want, unless the material is obscene or a ‘true threat.’

Unfortunately, the Internet fosters a market for revenge pornography. Revenge pornography is when “someone posts nude or sexually explicit photos without the consent of the person depicted”(Desai). This frequently occurring cyber-crime disproportionately targets women, who make up 90 percent of the victims with their harasser being an ex-partner (Desai). Bringing a civil suit against revenge pornography is a struggle for most women, emotionally, financially, and physically.  And, as of 2015, only two states have enacted anti-revenge pornography laws, so there is little a civil suit could actually stand on (Desai). However, the creation and tailoring of laws specifically addressing revenge porn get a lot of pushback.

A major opponent of revenge porn laws is the American Civil Liberties Union (ACLU). Its stance is that First Amendment was created to “protect fair trade of ideas”(Desai), and that revenge porn laws would be prohibiting the sharing of these ideas. This played out in the 2015 case Patel v. Hussain (NO. 14-14-00459-CV), in which Nadia Hussain sued former boyfriend Akhil Patel for posting sexually explicit photos that Hussain had sent him during their relationship. Hussain claimed defamation from the release of her private photos, but the jury found them to be “substantially true,” classifying it as a valid idea to share on the public forum, protected by the First Amendment (Patel v. Hussain NO. 14-14-00459-CV).

Additionally, the First Amendment failed to protect Jennifer Vander Tuig in the 2013 case People v. Rosa (No. F063748). Vander Tuig had sent nude pictures of herself to her husband, Rosa. After the divorce, Rosa posted some of those photos online along with Vander Tuig’s personal contact information, resulting in threats, attacks, and solicitations. Because of the lack of specific laws, the court convicted Rosa on charges unrelated to the First Amendment: stalking, identity theft, and false impersonation (People v. Rosa No. F063748).

California and New Jersey are the only two states with revenge porn laws currently on the books. California’s bill puts emphasis on the point of consent, so victims like Hussain are better protected. In her case, Hussain sued Patel for posting her private, nude photos online, however, Patel claimed the copyright law protected him. The claim held in court because Patel took the pictures of Hussain, giving him ownership, and in turn, the First Amendment right to publish the photos at his will (Patel v. Hussain NO. 14-14-00459-CV). Despite Patel taking some of those videos and pictures unbeknownst by Hussain, copyright laws made her consent for publication unnecessary because she legally couldn’t claim ownership, and therefore control of imagery of her body. California is attempting to combat these rulings by focusing on consent instead of creators, giving the victim more legal ground (Desai).

California’s bill is a productive step in anti-revenge porn legislation, but it still fails to protect the 80 percent of cases that involve self-taken pictures. The law reads that it is a misdemeanor for “any person who photographs/records by any means the image of the intimate body part/parts of another identifiable person” (Desai). The law needs to be expanded to protect “selfies,” pictures the victims took themselves. Otherwise, those victims fail to be protected under the First Amendment. Without protection current law enforces victim-blaming and the idea that the victim should have known that public dissemination is a risk when taking such photos (Desai).

In a continually evolving tech world, digital and cyber crimes are becoming more prominent and should be further acknowledged and integrated into our laws. Tailored anti-revenge porn legislation needs to be provided under the protection of the First Amendment, especially when the crime affects half of the population. The government must deem revenge pornography the type of low-value speech that goes unprotected by law, or maybe even claim that the protection of women is a compelling state interest, allowing revenge porn to be regulated. Either way, the First Amendment must be expanded in order to fully protect victims in our current technological landscape.

Works Cited

Desai, Snehal. “Smile for the Camera: The Revenge Pornography Dilemma, California’s Approach, and Its Constitutionality.” Hastings Constitutional Law Quarterly (2015): n. pag. LexisNexis Academic [LexisNexis]. Web. 14 Apr. 2016.

Patel v Hussain. 14-14-00459. Court of Appeals of Texas, Fourteenth District, Houston. 2016. LexisNexis. Web. 28 March 2016.

People v. Rosa, No. F063748, 2013 WL 941728 (Cal. Ct. App. Mar. 12, 2013), review denied (June 19, 2013).

Salicious Statements In The Classroom: Do Student’s Rights Extend to Racy Essays About their Teachers?

By David Zisser

On March 16th, 2013, Joseph Corlett, a former student at Oakland University (a public university in suburban Detroit) filed a claim in the U.S District Court in Detroit. The suit stems from the suspension of Mr. Corlett. While enrolled in an English course (English 380: Advanced Critical Writing), Corlett was tasked with writing an essay “about anything”. Corlett chose to submit a racy piece entitled “Hot For Teacher,” in which he elaborated on the sexual desires he had towards the courses instructor, Pamela Mitzfield.

The university deemed the essay to be “intimidating behavior”, and acted swiftly. Corlett was suspended for a year, with re enrollment only being an option after he completed a course in sensitivity training. Corlett’s suit alleges that he was merely completing a homework assignment, and that his First Amendment rights were violated. Additionally, he is claiming to have suffered from anguish and humiliation due to being forced to leave the school. Corlett is suing the university for $2.2 million.

Previous cases of sexual harassment in universities exist that are not entirely dissimilar to the suit being brought to the courts by Corlett, albeit in the previous cases the circumstances were reversed, and it was the teacher, not the student contesting consequences of alleged harassment.

Specifically relevant is the case of Silva v. University of New Hampshire. In it, Donald Silva, a tenured faculty member used sexually suggestive language in the process of teaching his class. Particularly, he stated “Belly dancing is like jell-o on a place with a vibrator under the plate.” Later eight of his students would come forward and complain of sexual harassment. Silva was placed on leave without pay following the complaints. After losing an appeal to the university, Silva filed a claim in federal court. The courts sided with Silva, stating “The court finds that Silva’s classroom statements advanced his valid educational objective of conveying certain principles related to the subject matter of his course.”

On the flip side, in Rubin v. Ikenberry Louis Rubin, a tenured professor at the University of Illinois notorious for disclosing his sexual past and telling various dirty jokes in the classroom, lost his suit against the university after he was terminated for the aforementioned speech. The court asserted that his comments were “exceedingly remote from the First Amendment’s concern with protecting socially valuable expression.”

Another relevant facet of Corlett’s allegation is the University of Oakland’s policy on sexual harassment. In it, sexually explicit language or writing (as well as lewd pictures or notes) are included as examples as unacceptable conduct. This language as you can see is quite vague, and the case the aforementioned issue of Silva v. University of New Hampshire deals with a matter similar to this. Specifically, the courts ruled that the university’s sexual harassment policy “as applied to Silva’s classroom speech is not reasonably related to the legitimate pedagogical purpose of providing a congenial academic environment because it employs an impermissibly subjective standard that fails to take into account the nation’s interest in academic freedom.”

Ultimately, the court will be forced to determine the value of Corlett’s speech. Sexually explicit speech in a college environment has been both protected when the speech was ruled to have value, and stripped of its protection when it was frivolous and without merit. Additionally, they will be faced with the challenge of determining whether or not the Oakland University policy on sexual harassment is constitutional, and whether or not the policy was properly applied to Corlett’s essay. If it can be proved that the speech has educational value since it was in the context of an assignment, it is likely that the courts will rule in favor of Corlett.

Cursing at the Cops: ‘Fighting Words’ Cases?

By Taylor Farnsworth and Tyler Falcone

The relationship between law enforcement and the citizens they are sworn to protect is one that is complicated, confusing, and fragile. The spectrum of outcomes from interactions between police and the public can range from a simple warning or a slap on the wrist, to something as severe as the loss of life. The latter has been the topic of heated discussion in the wake of the killings of Mike Brown, Eric Garner, and Tamir Rice by police officials just this year, and along with a number of other concerns raised, the issue of what is appropriate behavior when interacting with police is one that is receiving significant attention. While freedom of speech grants US citizens the privilege to speak freely without fear of punishment, there are still types of speech that go unprotected under the First Amendment. Fighting words, or “words seen as so vile or obnoxious that they are sure to incite a violent reaction,” (Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)) are one type of unprotected speech. Court cases dealing with fighting words are few and far between, and rulings on what constitutes fighting words seem to vary case to case. What is troubling about the seemingly circumstantial and subjective nature of these court rulings is that it becomes difficult to determine what is appropriate or, more importantly, legal when interacting with law enforcement officials.

The 2011 case of the State of Ohio v. Frazier, 2011-Ohio-3189 deals with Dorthea Frazier and her confrontation with police after the arrest of her son. Cody Frazier, the son of Dorthea, was stopped by the police after a brief vehicle pursuit and arrested less than 100 feet away from the home of Dorthea’s sister and Cody’s aunt, Shawn Weems. Dorthea and her sister were at Weems’s residence at the time of Cody’s arrest, and approached the scene to find out what was happening. As Dorthea approached, she began shouting expletives such as, ““What the f*** are you doing?” directed at her son and, “What the f*** are you arresting my son for?” directed at one of the arresting officers. While Dorthea was losing her temper, her sister made an attempt to calmly engage in conversation with an officer on the scene, Lieutenant Brian Simcox, to find out what had led to Cody’s arrest. Dorthea then interrupted the conversation by yelling, “You f***ing crooked a** cop,” and “You’re a b****,” at Lt. Simcox. Simcox then gave Frazier six to eight verbal commands to be quiet and calm down as she continued to shout expletives. The crowd around the scene grew to between 50 to 70 people who were “beginning to get agitated and it was – it was close to being a bad situation” (State of Ohio v. Frazier). Another officer who was on the scene, Brent Bauknecht, said, “The verbal abuse is one thing. Her yelling and screaming, cursing was enticing the crowd even more, which, for me, was making it more of an officer safety issue than so much her being loud and disorderly” (State of Ohio v. Frazier, pg 2).

Due to the concerns raised by the growing crowd and Dorthea’s lack of cooperation with police, the officers decided to place her under arrest. Frazier made an attempt to avoid and resist arrest and in the process, broke her arm. She was then charged with one count of resisting arrest and one count of disorderly conduct.  The matter was taken to trial in January 2009, and Frazier was found guilty of disorderly conduct and was sentenced to 30 days in jail and a $100 fine.

In April of 2010, Frazier filed a notice of appeal, claiming that her speech did not reach the level of fighting words and should not have been punishable by law. To make her point, Frazier relied on a previous Ohio Supreme Court decision in the 1993 caseState v. Lessin. In State v. Lessin 1993, 67 Ohio St. 3d 487, the appellant, Cheryl Lessin, was charged in the burning of an American flag, and was found not guilty under the protection of the First Amendment. The court deciding in Frazier’s appeal found that Lessin’s circumstances were different from Frazier’s, in that Lessin’s flag burning was a protected form of political protest. The court ruled that Frazier’s repeated cursing and yelling at officers did in fact rise to the level of fighting words with no communicative value, negating her First Amendment protection.

Frazier’s encounter with the police can be compared to the landmark fighting words case, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Chaplinsky was arrested on charges of disturbing the peace after screaming phrases like, “You are a God damned racketeer” and “a damned Fascist,” to local sheriffs attempting to quell Chaplisnky’s rant on the corruption of organized religion.  While the circumstances of the interactions were starkly different – Chaplinsky was arguing for his right to preach on his beliefs as a Jehovah’s Witness and Frazier was coming to the defense of her son –both involved altercations with police that led to arrests due to the language directed at officers on the scene, and both convictions were upheld.

An article from The Foundation of Individual Rights in Education, or The FIRE, titled “Misconceptions About the Fighting Words Exception,” explains other cases dealing with fighting words that had been brought to trial. Author Sean Clark writes on a case Gooding v. Wilson, 405 US 518 (1972), in which Vietnam protestor Johnny Wilson screamed phrases like, “You white son of a b***, I’ll kill you,” and “I’ll choke you to death,” in the faces of police officers trying to break up anti-Vietnam protests. After being convicted of breaching the peace under a Georgia state law, he appealed and the case was taken to the US Supreme Court. The Supreme Court overturned the conviction on the grounds that Georgia’s statute was overbroad and too vague, prohibiting free expression. Despite the seemingly severe nature of Wilson’s threats, his speech was not direct enough to fit into the narrow confines of the fighting words doctrine.

Arguments have been made that charges of fighting words are simply outdated, and losing any legitimacy they once held in courts. Jeffrey Rosen writes in article on LegalAffairs.org that, “during the past few decades, it has been criticized for being out of sync in a multicultural age: The doctrine’s definition of fighting words is said not to take into account the unique perspective of women, racial minorities, and gays and lesbians, some of whom may be less likely to respond to insults with physical violence. But a brief excursion into the historical roots of the fighting-words doctrine provides even stronger reasons for abandoning it. Legal bans on fighting words grew out of 19th-century efforts to discourage the practice of dueling, and they evolved from a Southern culture of honor and hierarchy that’s very different from modern American democracy” (Rosen). These facts alone show some of the shortcomings and subjectivity of the fighting words doctrine, and makes it easier to understand why such a doctrine could becoming less relevant in today’s culture.

Sean Clark writes in his article, “Gooding was the nail in the coffin—if the fighting words exception has any real vitality left at all (and many commentators, including Nadine Strossen, think it is essentially dead) the Supreme Court has effectively limited the exception to only include abusive language, exchanged face to face, which would likely provoke a violent reaction.” His critique is understandable when it is discovered that Gooding shouted phrases like, “You son of a b****, I’ll choke you to death,” and, “if you ever put your hands on me again, I’ll cut you all to pieces” (Gooding v Wilson 405 US 518) while assaulting police. If these words do not constitute fighting words it becomes hard to imagine what it would take to fit the criteria.

A common characteristic of these cases is that they all involve altercations between police and the public. As government officials, free speech and criticism on the workings and dealings of police officers is a constitutionally protected right granted to every American, which could be why it seems so difficult to get a conviction to hold up. In light of recent events involving police and the killing of unarmed civilians, the importance of appropriately interacting with law enforcement is more relevant than ever, and while the fighting words doctrine continues to change, it is important to understand what is acceptable, and what could result in jail time, or worse. While fighting words have not been directly attributed to the incidents involving Mike Brown, Eric Garner, or Tamir Rice, the overall theme of interacting properly with authorities is prevalent. Other questions also arise, such as when is it appropriate for who to say what? In other words, are these rulings objective, or do the setting, time period, and people involved more directly influence whether or not a conviction will stick? Frazier was supposedly convicted due to the potential her words had at inciting the crowd around her to violence; Chaplinsky was convicted for disturbing the peace when he was merely speaking out on organized religion; both involved cursing at police officers. Wilson was legally protesting the war, but then assaulted and directly issued death threats to officers attempting to break up the protest. Were Wilson’s direct threats on authorities’ lives less of threat than Dorthea Frazier cursing and criticizing police and the work they were doing? An interesting afterthought is that Frazier and Chaplinsky were both minorities, and both had some of the only upheld convictions in fighting words cases. Sean Clark writes in his article that the fighting words doctrine has gone down a “twisted legal path”, and that the Supreme Court has had to continuously “narrow the fighting words doctrine and extend First Amendment protections to offensive or vulgar speech” (Clark). It is clear that courts are continuously redefining the fighting words doctrine, and it will be interesting to see how they continue to do so in the future.

Sports Franchises Call a Foul on Social Media

By Max McGee, Jon Dimuzio and Caralyn Dienstman

When Tyler Andersen of Jacksonville, Florida attended the 2013 NASCAR Daytona 500 on February 24th 2013 in Daytona Beach, Florida, he thought it would be another exhilarating eventful day that the young Florida State student would get to have during his college years. Looking back at that day, exhilarating is definitely a term that may be more of an understatement (Tompkins).

A car crash that injured 14 cars on the final lap and injured 33 spectators transpired right in front of Tyler and he did what any person would have done in this day and age. He took out his smartphone and documented what had occurred feet in front of him. He uploaded the video to YouTube (Tompkins).

NASCAR claimed copyright infringement, which prompted YouTube to take the video down, but the website soon reversed its decision.

NASCAR Vice President of Digital Media Marc Jenkins flat out admitted it used the assertion of a DMCA (Digital Millennium Copyright Act) copyright violation to have the video removed knowing full well no violation had been committed.

We found a way to get into contact Andersen on Twitter and we exchanged private messages of what he could recall from that day of controversy. Anderson stated, “You expect a few wrecks and some big ones with it being Daytona but you never expect something like that. Especially one that causes harm to the fans.” In this particular scenario, and many instances similar to it, social media poses a threat to the sporting industry. It is this threat caused by the recent social media phenomenon that has lead to fans signing over rights of their still images and video’s they gather from various games over to national athletic organizations like NASCAR.

The act of whipping out a smartphone at a moments notice to record any given live phenomenon has become almost second nature for most millennials. Uploading classic images and videos on social media, is a quick and easy way to gain attention and keep the public in the loop. Images such as those from a 2004 brawl that broke out during an Indiana Pacers vs. Detroit Pistons game, demonstrated the epitome of this behavior. The event has since been nicknamed the “Malice at the Palace” is immortalized online. The repeating .gif file is only a few clicks away to anyone with Internet access thanks to the fans and phones that were present to capture the epic moment. It seems copyright infringement actions are one way for professional sports teams to keep control of its product – however under the fair use exception, this tactic doesn’t always give clubs the control they want (Tompkins).

The Fair Use Doctrine outlines exactly what is acceptable when reproducing particular work. Under the Fair Use Doctrine four factors are considered when determining if an image or video has been uploaded fairly. The four factors considered include the following (Tompkins):

  •   “The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes”
  •   “The nature of the copyrighted work”
  •   “The amount and substantiality of the portion used in relation to the copyrighted work as a whole”
  •   “The effect of the use upon the potential market for, or value of, the copyrighted work”

Going off of these four factors, the Daytona crash should not have been taken off of YouTube as it qualifies as “fair use.” Anderson posted video that was not intended to gain commercial profits or to exploit the NASCAR brand, but rather to report on a news incident. Although, Anderson had not originally intended to witness a horrific accident at a sporting event, he did, and therefore “fair use” should have been applied.In order to protect various works, the copyrighting laws hones in on creativity while not applying to ideas, systems and factual information conveyed. Focusing on those “fair use” credentials, NASCAR should not have removed the video from YouTube.

Controversy arose in this situation since Anderson was under the agreement that all footage captured belonged to NASCAR, because it was stated on the back of each his ticket. At the time the crash occurred, Anderson was unaware of this particular policy. Anderson said, “I’ll be honest with you. I didn’t know. But then again I wasn’t expecting that to happen. And I wasn’t the only fan either…I just got tweets telling me it was taken down by NASCAR for copyright.” Journalists and sporting leagues alike want to be able to protect their works and publications in order to make revenue. When it comes to sporting events, different organizations will take different approaches when it comes to regulating various social media and status updates.

The Premier League in the UK took more instantaneous action to control its images during the World Cup in Brazil. Although, legal action was threatened, similar to the Daytona event, there were too many postings for the league to monitor. Instead, videos were taken down from Vine, a smartphone app that enables users to upload six-second video clips. Officials of the Premier League came across clips of goals or highlights from random games on social media that were posted within seconds from when the action was actually broadcasted. The Premier League aggressively monitored the almost live posting to protect the value of the Leagues brand and the commercial rights associated with the brand (Wood).

Although copyright infringement during sporting events has been a long-lasting issue, the rise of Twitter has brought the issue to a whole new level. Erik Manassy, was one of the first die-hard sports fans to join Twitter back in 2006 when the site was first established. Manassy, a Jets fan, Tweets under the name “@e_man,” a handle that currently has over a million followers. Therefore, @e_man is capable of tweeting at least once every thirty seconds. Each tweet tracks and comments on players and plays alike. In 2011 Trustees of Columbia University published the Sports Leagues New Social Media Polices in the Columbia Journal of Law & Art. According to the Sports Leagues New Social Media Policy, “leagues can claim infringement where uploads originate from copyrighted material.”  If a follower is essentially tweeting a play-by-play of the game, then this could qualify as copyright infringement and is not protected under the Fair Use Doctrine. However, if posts are displaying facts then this is considered fair use. In this particular case the NFL went after Twitter, the hosting sight, rather Manassy’s millions of followers who had uploaded tweets. A notice and takedown features of the DMCA were invoked and the NFL succeeded in getting the tweets of the game broadcast, according to jetsrant.com (Hull).

According to ABCNews, There may be no use of film or tape of a game in any manner while that game is in progress.  The network telecasting the game has exclusive rights to that game while it is in progress. The website states that “These Film/Tape Usage Guidelines apply only to distribution via over-the-air or non-standard television. There can be NO use of film or tape of a game on any other media platform including, but not limited to, on a wireless platform or on an internet or online site EXCEPT that such film or tape may appear on an internet or online site only if it is part of a single, non-archived, online “simulcast” of a television station’s regularly scheduled news programming.  “Wireless platform” includes, but is not limited to, cellular, personal communication services and other methods of providing content to handheld digital devices, paging, specialized mobile radio and wireless internet (including Wi-Fi). (ABC News)

In plain English this means that if you are not the media, you should not be filming the game with your wireless device.

On YouTube’s website, they have statements regarding to what happens if there are copyright infringements. It says, “If you are a company and own exclusive rights to a large amount of content that requires regular online rights administration, you may want to apply for access to YouTube’s Content ID system or to our Content Verification Program.

From these various policy statements from organizations such as ABC News or YouTube, it seems the onus is on the individual league or franchise to police possible copyright infringements. Considering that almost everyone has access to use of social media that may be an exercise in futility.

Citations

ABC News. ABC News Network, n.d. Web.

Hull, Michelle R. “SPORTS LEAGUES’ NEW SOCIAL MEDIA POLICIES.”Columbia

Journal of Law & the Arts Spring (2011): 10-12.Http://www.wilmerhale.com/. Web.

Tompkins, Al. “Daytona Crash Video Tests Fair Use, Copyright for Fans and q   Journalists.” N.p., n.d. Web. 18 Dec. 2014.

YouTube. YouTube, n.d.

Wood, Pete. “The Premier League’s War against Its Fans Is

Unwinnable.”Http://www.theguardian.com/. N.p., n.d. Web.

The First Amendment Down on the Farm: the “Ag-Gag” Controversy

By Leah Ference and Alyssa Luchette

The name “ag-gag” is, in and of itself, indicative of what seems to be popular opinion on the issue of the bills that seek to police the act of recording on farms across the country. The term, coined by Mark Bittman in a 2011 article for the New York Times,[1] refers to laws which seek to protect the Agricultural industry (“big Ag”) by “gagging” journalists and other whistleblowers who would otherwise seek to report the conditions that animals are subjected to while living on farms.

Essentially, the laws, which claim to work to “protect family-owned and corporate farms,”[2] prevent citizens from taking pictures, video, or audio recordings on farms across the country, as well as from lying on job applications to work on farms “undercover” for the purposes of obtaining this information. In the past, journalists and other whistleblowers have released videos and documentaries featuring footage taken from farms, often depicting cruel and/or illegal conditions for animals. Animal rights activists release the footage in order to raise awareness, and this kind of reporting and dissemination of information has proven essential for that purpose.

In his book Eating Animals, Jonathan Saffran Foer outlines the difficulties he had trying to get even basic information out of the farm facilities, including seven unsuccessful attempts to obtain legal access, or even information, from Tyson Foods.[3] With these kinds of roadblocks in the way for the press, they are left with no options other than to go undercover. Beyond that, the ag-gag laws punish the general collection of information, not just undercover operations. The first person arrested under an ag-gag statute, Amy Meyer, was on public property in Utah when she decided to film the operations at Dale Smith Meatpacking Company in February 2013 [4]. So while other meatpacking operations have successfully sued undercover journalists for trespassing, this woman was on the public street, so there is no property issue present, and she was therefore arrested for generally collecting information.

A sponsor of HB683, an ag-gag bill that was introduced in Pennsylvania in early 2013, claims that “there has to be a certain degree of privacy when you own a farm,”[5] but his view, as illustrated by the nickname of the bills, seems to be the minority. The PA bill failed, and the ASPCA website lists only seven states which currently have ag-gag laws in effect.[6]

Arguably, the main First Amendment issue at hand concerning ag-gag laws is that making it a felony to videotape farms is a violation of the right to freedom of the press. Yale Law student Lewis Bollard’s award-winning essay argues that because ag-gag laws “significantly restrict the flow of information in the public domain,”[7] they disrupt the core values of freedom of speech. The public cannot discover the truth of the matter if the press is not allowed to report on it, and the ag-gag laws prohibit promotion of stable change by hiding the slaughterhouse policies that the public would not agree with.

Bollard argues that strict scrutiny should be applied to those laws since they are aimed directly at suppressing speech, the First Amendment being one of the most important rights guaranteed under the U.S. Constitution. Citing the Supreme Court’s decision in a 1993 case regarding religious animal sacrifice, he concludes that ag-gag laws are “underinclusive for any goal other than penalizing undercover investigators,”[8]because they specifically target reporting on farm operations, and do not expand their restrictions to other aspects of or participants in the process. His argument is that the laws are too narrowly tailored, instead of targeting the general act of trespassing on the farm’s private property; ag-gag laws specifically target the press’s ability to report on the day-to-day operations of the facility, and therefore specifically prohibit expressive speech. Natasha Khan explains that because they are specifically targeted at “whistleblowers,” these bills “create a chilling effect on what the public learns about animal cruelty;”[9] which also unconstitutionally limits freedom of the press.

Because of the widespread media disdain for these laws and the relatively low success rate at passing them, the chances that they will become commonplace in states across the country are arguably quite low. Animal rights groups such as the ASPCA routinely post updates on which states currently have legislation that has been introduced, and ask that their supporters campaign against the bills being signed into law.[10] Often, even states which do manage to pass ag-gag type laws only succeed in prohibiting whistleblowers from lying on applications in order to gain entry into farms for the purposes of filming illegal or unethical activity.[11] It is therefore likely that most attempts to pass laws that criminalize reporting of these activities will ultimately fail.

Sources:

Bittman, Mark. “Who Protects the Animals?” New York Times, April 26, 2011. Accessed November 2, 2014. http://opinionator.blogs.nytimes.com/2011/04/26/who-protects-the-animals/?_r=0.

Khan, Natasha. “Bill Would Limit Whistleblower Activities on PA Farms.” Public Source. March 21, 2013. Accessed November 2, 2014. http://publicsource.org/investigations/bill-would-limit-whistleblower-activities-pa-farms#.VFblxPnF8p9.

Safran Foer, Jonathan. Eating Animals, (New York: Back Bay Books, 2009), page 84.

“Animal Legal Defense Fund Files Historic ‘Ag Gag’ Lawsuit.” ALDF. Accessed December 3, 2014. http://aldf.org/press-room/press-releases/animal-legal-defense-fund-files-historic-ag-gag-lawsuit/

“Ag-Gag Bills at the State Level.” ASPCA. Accessed November 2, 2014.https://www.aspca.org/fight-cruelty/advocacy-center/ag-gag-whistleblower-suppression-legislation/ag-gag-bills-state-level.

Bollard, Lewis. “Ag-Gag: The Unconstitutionality of Laws Restricting Undercover Investigations on Farms.” Yale Law. January 1, 2012. Accessed November 2, 2014.http://www.law.yale.edu/documents/pdf/News_&_Events/BollardLewis2012Hogan-SmogerEssayContestWinner.pdf.

[1] Bittman, Mark. “Who Protects the Animals?” New York Times, April 26, 2011. Accessed November 2, 2014. http://opinionator.blogs.nytimes.com/2011/04/26/who-protects-the-animals/?_r=0.

[2] Khan, Natasha. “Bill Would Limit Whistleblower Activities on PA Farms.” Public Source. March 21, 2013. Accessed November 2, 2014. http://publicsource.org/investigations/bill-would-limit-whistleblower-activities-pa-farms#.VFblxPnF8p9.

[3] Safran Foer, Jonathan. Eating Animals, (New York: Back Bay Books, 2009), page 84.

[4] “Animal Legal Defense Fund Files Historic ‘Ag Gag’ Lawsuit.” ALDF. Accessed December 3, 2014. http://aldf.org/press-room/press-releases/animal-legal-defense-fund-files-historic-ag-gag-lawsuit/

[5] Khan, Natasha.

[6] “Ag-Gag Bills at the State Level.” ASPCA. Accessed November 2, 2014. https://www.aspca.org/fight-cruelty/advocacy-center/ag-gag-whistleblower-suppression-legislation/ag-gag-bills-state-level.

[7] Bollard, Lewis. “Ag-Gag: The Unconstitutionality of Laws Restricting Undercover Investigations on Farms.” Yale Law. January 1, 2012. Accessed November 2, 2014. http://www.law.yale.edu/documents/pdf/News_&_Events/BollardLewis2012Hogan-SmogerEssayContestWinner.pdf.

[8] Bollard, Lewis.

[9] Kahn, Natasha.

[10] ASPCA article, see citation #4.

[11] ASPCA article.