Are Bloggers Protected by Shield Laws? New Jersey Decides

By Mike Kitay

State shield laws are crucial for the journalism profession to function properly. Many states differ as to the specifics of their law, but for purposes of this article, New Jersey’s shield law will be discussed. Like all shield laws, New Jersey’s law protects journalists from having to reveal their sources to anyone including courts, grand juries, administrative agencies, and legislatures to name a few. Clearly, journalists must have a legal way to ensure their sources confidentiality, or else why would anyone trust a journalist enough to be a source? With the dawn of the internet, the journalism profession has evolved exponentially. Accompanying this evolution is the blogging revolution where anyone with an internet connection can start one and purport to be a journalist. This is not to be confused with online forums, which are another medium through which people can express their thoughts online. Two recent New Jersey Superior Court cases have taken the issue of online bloggers and posters being protected by the state’s shield law. What separates these cases is whether the court decided that the writer was acting in a journalistic capacity.
Tina Renna is a blogger, self-proclaimed watchdog, and the owner of her blog,CountyWatchers.com. She has been at the throat of Union County officials by posting stories that reveal not so flattering things about them, specifically in their official capacities. Following Hurricane Sandy, Renna published in a December blog post that 16 government officials had misused portable government owned generators, but did not name them. The Union county prosecutor then subpoenaed Renna for her sources in order to find out who these 16 employees were, all-the-while insisting that he was not interested in her sources, but in investigating the claims she made. Renna refused and argued that revealing the names could potentially reveal her sources and so fought the subpoena in a NJ Superior Court. She argued that she was protected by the state’s shield law even though she wasn’t associated with any official news organization. This is indeed the gray area of the law that this decision has partially clarified. The court agreed with Renna that she is protected under the law and Judge Karen Cassidy said that Renna “obtained material in the course of professional news- gathering activities.”(nj.com)
In another NJ Superior Court case, TMM(Too Much Media) LLC v Hale, the judge ruled against the argument for protection under the state’s shield law. This case illustrated the limits the law will stop at in protecting online posters. Shellee Hale has been on a crusade of sorts against the online porn industry ever since she was “cyber-flashed”(syllabus)one day. She has investigated the online porn industry and attempted to create a website in 2007 called Pornafia. She intended this website to be a bulletin board of sorts where the public could comment and discuss possible illegalities in the online adult entertainment industry. She never got the site up and running and instead posted multiple comments on the forums of the website Oprano. Hale posted comments about the recent revelation in the news that a potential NATS breach may have revealed online adult website customer information. NATS is a piece of software that TMM created to allow adult industry websites to “keep track of access to affiliated websites and determine what commissions are due the referring sites.”(Syllabus) She commented that TMM had broken the law and not only profited from the breach, but intimidated people who questioned them essentially. TMM then sued Hale for defamation and false light, which is basically publishing a false and offensive statement. During discovery, TMM lawyers attempted to depose Hale and she refused to answer questions because,she argued, she was protected under the state’s shield law. The trial court ordered an evidentiary hearing to determine whether Hale fell under the protection of the law. The judge decided that she did not. The Appellate Court affirmed and the case then went to New Jersey’s Supreme Court, which ultimately affirmed the Appellate Court’s decision. The Appellate Court zeroed in on the news gathering process in order to decide the matter. Was the way in which she investigated the breach comparable to normal journalistic practices? The court concluded no because “there was no mutual understanding of confidentiality between defendant and her sources.”(syllabus) She also didn’t try to get the other side’s position on the matter; she didn’t reveal herself as a reporter to her sources, and she basically regurgitated what others had said instead of formulating her own original piece of work. This is essentially how the court has kept just anyone from claiming protection under the state’s shield law. It was the way in which Hale obtained her information that ultimately determined whether or not she could be considered a journalist. The court said she didn’t follow journalism’s established best practices. The court also made a distinction between a post on an online forum, and an actual news agency. The state’s shield law said that “other means of disseminating information be similar to similar news sources to qualify.”(Leagle.com)
So one may ask what is the difference between this case and Renna’s case? What is the difference between posting on a blog or a forum? Simply put, the Hale court decided that online forums are not “similar” enough to traditional news sources. If you look at news sites, blogs, and forums, they all essentially allow people to publish information. Blogs seem to be more accepted now a-days than they used to, but that doesn’t mean they automatically fall under a state’s shield law protection. The courts in both cases seem to distill the essential factors as the means in which the information was obtained. That is after all what sets journalists apart from mere bloggers. Journalism is a respected profession that prides itself on its journey for the truth and integrity. It is about making sure that anything that is published is correct. This isn’t to say that there is a clear, delineated line between blogs and traditional online news outlets. Interestingly enough, a NJ Supreme Court decision in 2011 declared that online message boards are not included in the state’s shield law.
The Renna case brought the internet realm under the protection of the law. With the journalism profession evolving so fast, there is no way the court can deny blogs from falling under the shield laws when it is increasingly become the go to medium for news consumption. Judge Cassidy referred to the Hale case when she said, “digital news outlets, particularly blogs, are increasingly present and vital to the delivery of news to the public in our modern age.”(gossipy.co) What did the Huffington Post start off as if not a blog in essence? The Hale case that Cassidy referred to said that courts must look at past publications of the defendants. Here, Renna had a solid track record and even wrote for traditional news outlets while Hale didn’t have such a record. The question still remains, what is a news medium? Thus we come back to journalism practices. Renna argued that she and her group were the only people investigating and writing about the Union Country government and the judge agreed. After all, the media is the fourth estate and a lever of accountability for the government. Judge Cassidy actually praised Renna’s journalistic practices. The Hale case outlined three criteria in which to evaluate these cases: connection with the news media, purpose to gather or disseminate news, and a showing that the materials sought were obtained in the course of professional news gathering activities. Judges must decide these factors on a case by case basis. Also, they look at whether the defendant presented themselves as a journalist and agreed to keep their sources confidential. In the Hale case, she didn’t, while in the Renna case she did.
So how do these two court decisions affect journalism’s online future? The opposing council in the Renna case argued that Renna could have made up the 16 employees, and that their was no way to verify the truth. Yet, it is not the media’s responsibility to do the DA’s job. If indeed these employees did misuse these portable generators, then the government should be able to investigate on their own. After the decision came down, Renna blogged, “I am the first blogger in New Jersey history to be deemed protected by the New Jersey Newspersons Shield Law and an important precedent has been set which may protect and inspire other citizen journalists to watchdog their government in place of traditional journalism…”(gossipy.co) Perhaps we are living in a time where a significant transformation of the journalism profession is occurring in which the ability to tell the news is at anyone’s fingertips. Just because one doesn’t have the money to publish a newspaper or magazine or hasn’t been hired by a news agency, doesn’t mean they shouldn’t be able to partake in news dissemination. With more people performing the role of watchdog, and investigating issues other more formal news agencies are not, perhaps we will see a surge in revelations of government and corporate malfeasance. Yet, this also means the courts will be having to play a more crucial role in determining just who constitutes a journalist. Will a set of standards and guidelines be set by the courts in this regard? The courts must ensure that the integrity of this profession be guarded against an onslaught of “wanna-be journalists” whom adhere to no traditional news gathering principles. Shield laws are their way of doing so. Legislatures create them but the courts must decide whom the journalists are. Perhaps we will start to see legislatures define what a journalist is more specifically in their shield laws. In the end, it is the practices journalists have honed over the years that make the judge’s jobs a little easier in deciding these matters.
Work Cited

‘Like’ the First Amendment

By Bob Stewart

Employees fired by Hampton County, Virginia Sheriff B.J. Roberts allege that he did so because they “liked” a Facebook page. The page belonged to the candidate running against Roberts in the general election. Though the employment terminations took place about a month after the election that Roberts won, he denies his reasoning related to Facebook.

Six former employees sued Roberts for violating their First Amendment rights in Bland v. Roberts (857 F. Supp. 2d 599), in U.S. District Court. This case appears to be a fair battleground to determine whether or not Roberts fired the employees for expressing their support for his opponent, or as he contends, that unsatisfactory work performance and budgetary concerns were the reasons. However, Roberts moved for summary judgement on the basis that the Facebook “like” was not expression.

Judge Raymond A. Jackson granted summary judgement on that reason. Despite acknowledging Roberts did know about the Facebook “likes,” Jackson opined that a form of expression that simple does not rise to the level of Constitutional protection.

“Simply liking a Facebook page is insufficient,” Jackson wrote in his decision. “It is not the kind of substantive statement that has previously warranted constitutional protection.”

To be sure, this case is as nuanced as social media expression itself. In addition to the Sheriff’s claims that he had good reason to fire the employees, several other layers of protection exist, including the notion of state sovereignty. He also possesses “qualified immunity” according to Jackson. Government employees are immune to civil suits for their decisions as long as, “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Further, Roberts says he knows he does not have the right to fire employees for expression. In that case, the plaintiffs would have to prove that Roberts knew Facebook “liking” was constitutionally protected expression. But that is all immaterial to whether or not “liking” a Facebook page is actually protected expression.

The summary judgement is being appealed to the 4th Circuit Court of Appeals. Based on prior decisions the summary judgement here should be overturned. The Supreme Court of the United States ruled in Tinker v. Des Moines that wearing black armbands to protest the Vietnam War was protected “speech,” even though no specific message was spelled out (393 U.S. 503). The Federal Courts consider the medium of Facebook an adequate platform for protected speech. In Gresham v. City of Atlanta, the District Court ruled that a police officer’s Facebook posts are protected (10-CV-1301-RWS (N.D. Ga.; May 7, 2012)). The Supreme Court has developed a test that should apply in this case since the act of “liking” a Facebook page is conduct. The Court asks two questions. The first question is to determine whether there is intent to express a message. The second is to determine whether it is likely a witness will understand the message. The court clarified in Texas v. Johnson, a flag burning case, that the witness does not need to understand the exact message (Texas v. Johnson, 491 U.S. 397).

So first, Facebook users express something when they “like” a page or another user’s status or comment. They have read the information or at least know the content of the page before they “like” it. What the expressed message is can vary. So whether the expression would be understood is a fair question. Perhaps the user “likes” something because it is funny, poignant, or it is exactly what he would have written given the opportunity. In the case of a candidate’s page, or that of a group or business, it usually means an endorsement of the candidate or product. Other Facebook users know what that means generally. Evidence of this is that there are many companies, like  “Get-Likes.com” and “fbviro.com,” whose sole purpose is to get your Facebook page more “likes.” Businesses and political candidates pay money for this type of service. So it is fair to say that a “like” is expression that is meant to be positive toward the entity being “liked.” That means the First Amendment is implicated in Bland v. Roberts.

The 4th Circuit should overturn the summary judgement and remand the case back to the District court to hear the case on its merits. There is fair reason to believe that Roberts was ultimately justified in his actions, or at least not liable. But the court should consider the case, not throw it out on an incorrect technicality.

 

Photographers face legal issues while photographing planes

By Jamie Joseph

Bill Madeira and a friend are local amateur photographers that like taking pictures of planes. In 2005, they were taking pictures of planes landing at Philadelphia airport from a public road when he was approached by a police officer who asked for ID’s.

Madeira and his friend gave the officer his ID. Seeming satisfied, the officer went away.

Fifteen minutes later, four squad cars and a helicopter surrounded them and put Madeira and his friend in the back of a cruiser. When asked why they were being arrested, the officer replied “Don’t you know what’s going on in this country?” This was probably a reference to the September 11 attacks and war on terror.

Madeira and his friend were held until midnight without being given the chance to call a lawyer or being told why they were being held. Madeira contacted the local chapter of the ACLU and reported the incident. The city settled out of court giving them $2,500.00 each.

But why did police arrest them in the first place? There is no law, federal, state or local regarding taking photos of airplanes from a public space. There are laws restricting photography of maintenance factories, oil refineries and other so called ‘9/11 targets.’ But since 9/11, even with the development of Homeland Security and the passing of the Patriot Act, there is no mention that taking photos of planes is illegal or should even be considered a threat.

Homeland Security policy makes no mention of a ban on photographing of airliners or airports, although certain landmark sites and federal buildings are off limits. The DHS notes that while they have no specific rules against taking photos at the airport or any public access, it does strongly discourage anybody from taking pictures of TSA employees and it’s security area, specifically the x-ray machines. The only rule here is that any photography must not interfere with the operations of the TSA at the airport. Also, airports around the country have their own rules about where and when photography is allowed.

Philadelphia airport has certain rules against photography and video recording. For photography, it must not interfere with the operations of the airport including and especially the TSA, as mentioned by the DHS, but also no photos taken at Philadelphia airport may be used for commercial use. Does this include using the photos for one’s personal blog or website like airliners.net or phlairline.com? Under the airport rules, the answer is no. But video of anything in the airport must have specific permission from the airport Special Events and Photography coordinator, Richard McMullin.

But still, there is no law prohibiting photographers from taking pictures of planes from a public space. But what about from inside the plane?

Many airlines have policies that basically prohibit any sort of recording or still photography. United Airlines website says ‘The use of still and video cameras, film or digital, including any cellular or other devices that have this capability, is permitted only for recording of personal events.’ It also goes on to say other passengers must concede to being recorded and any recording of the staff must be given permission to by United Airlines. The highest authority on any in-air aircraft is the pilot.

Earlier this year, while boarding in New York, a United Airlines pilot refused to hear the story of Matthew Klint, a travel writer and on this flight, a business class passenger taking photos of his seat, was told to get off the flight, destination Istanbul, Turkey.

Klint was embarrassed and filed a report with United Airlines. Not hearing back, he took his story to his website and soon, news outlets were picking up the story across the country. United Airlines has since responded and are working with Klint to fix the problem.

In an interview with NPR in 2005, Brian Roehrkasse a spokesman for the DHS, says photos can be used surveillance for organizations like al-Qaeda to conspire and attack the U.S.

Even if that makes sense to some, it would be nearly impossible to not find a picture of the statue of liberty, or the White House on the internet. Even a plane landing is a sight that looks the same no matter where in the world its landing, at least it does to me. Probably looks the same from the inside too, just a hunch.

So where does that leave this issue? If I want to take my new Canon 7D camera and go down to the airport area and take photos of planes, there is a possibility I may be thrown stopped and frisked like Robert Cheney was, another person who was also stopped by police by Philadelphia airport while he was outside taking photos of airplanes from a public road.  Should regulations be created to guide photographers or videographers about what they can and can’t photograph?

With cameras now available on pretty much every phone, and so many people flying, I say ‘yes’.  Both professional and amateur photographers need more well-publicized guidelines.  However, these regulations should be consistent with the rights afforded us by the First Amendment. Being arrested on a public street, (as Mr. Madeira was), for photographing a plane landing runs afoul of that freedom.  Having clearer guidelines about where and what is a threat to public or national security will not only help shutterbugs but conserve law enforcement’s time and resources.

The Revamped Stolen Valor Act

By Jillian Mallon

On Jan. 3, 2006, the 109th Congress of the United States enacted the Stolen Valor Act of 2005 (S. 1998 (109th): Stolen Valor Act of 2005). This act was designed to protect  the reputation and significance of medals or decorations awarded by the president or the Armed Forces of the United States such as the Medal of Honor, the Navy cross, the Purple Heart, and so forth. The act dictated that if a person claimed that he or she won a medal that he or she did not win, that person would have to pay a fine and serve up to six months or one year in jail.

Not one person was convicted under the Stolen Valor act until Xavier Alvarez in 2007. Alvarez was an elected water district board member in California who made claims at a public meeting that he was a retired U.S. Marine who had been awarded the Congressional Medal of Honor. The FBI obtained a taped recording of the meeting and charged Alvarez with two counts of violation of the Stolen Valor Act (United States Courts , “U.S. v. Alvarez: Stolen Valor or Stolen Freedom of Speech?”, 2013). Alvarez’s lawyer claimed that the Stolen Valor Act was invalid under the First Amendment right to freedom of speech. The case was eventually appealed by the government to the Supreme Court which heard oral arguments concerning the case on February 22, 2012.

The Supreme Court decided that the Stolen Valor Act was unconstitutional. The court opinion stated that content-based regulations of the First Amendment right to free speech have only been permitted in cases of defamation, libel, slander and fraud, among other rare occurrences. Though these cases usually involve misleading the public with false speech, the Supreme Court argued that in the case of United States v. Alvarez there was only false speech involved and no “legally cognizable harm”. The opinion went on to explain:

“Even when considering some instances of defamation or fraud, the court has instructed that falsity alone may not suffice to bring the speech outside the First Amendment; the statement must be a knowing and reckless falsehood” (United States v. Alvarez, 2012 WL 2427808 [June 28, 2012][No. 11-210]).

Misleading the public with false information is in fact a knowing and reckless falsehood. Xavier Alvarez knew that he hadn’t won the Congressional Medal of Honor when he announced it at a public meeting. The First Amendment should not protect untrue speech even if it exhibits no harmful threat. Lying about having a medal may not be such a serious crime that it can be justly punished with three years of probation and a $5,000 fine the way it was in Alvarez’s case. However, lying should not be protected by the First Amendment because it is knowingly false speech.

This year, 2013, a new version of the Stolen Valor Act is being drafted. NevadaCongressman Joe Heck has said that this Stolen Valor Act of 2013 will be more effectivebecause it will punish those who lie about receiving medals or rewards in order to benefitfrom these false claims instead of just the lie itself (Congressman Joe Heck Press Releases, “Heck Introduces Stolen Valor Act to Protect Integrity of Military Awards”,January 15, 2013). This act should be in place to protect the public from false statements. The new act will limits the punishment that a person who violates the act recieves. While the old act recommends an unspecified amount of fines and imprisonment, the new actsuggests a fine or no more than a year in prison (The American Legion, “SenateIntroduces Stolen Valor Act of 2013”, February 5, 2013).

Sources:

http://heck.house.gov/press-release/heck-introduces-stolen-valor-act-protect-integrity-military-awards

http://heck.house.gov/sites/heck.house.gov/files/Stolen%20Valor%20Act%20of%202013.pdf

http://www.govtrack.us/congress/bills/109/s1998/text

http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf

http://www.uscourts.gov/EducationalResources/ClassroomActivities/FirstAmendment/first-amendment-stolen-valor/facts-case-summary.aspx

http://www.legion.org/legislative/213744/senate-introduces-stolen-valor-act-2013

The Constitutionality of Internet Filters in Public Schools

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By Becca Washburn

The Governor Mifflin School District of Shillington, Pennsylvania responded to the complaints made by the American Civil Liberties Union (ACLU) after it was discovered that the district’s schools block websites that are LGBT positive while there were no blocks on anti-LGBT websites. The school district has announced it will remove the blocks instead of trying to challenge the claims made by the ACLU that this viewpoint discrimination was unconstitutional, so the case will not be brought to court.

This is far from the first time a public school was accused of using website filters to unfairly block access to a full range of information for students. A similar case was found in Camdenton, Missouri, in PFLAG v. Camdenton R-III School District, No. 2:11-cv-04212 (2012), where the district court declared the unbalanced blocking was unconstitutional.

Censorship via online filtering programs has become commonplace in public libraries and schools. In a world where harmful material can be found with just a few keystrokes, governmental protections put in place to stop children from accessing content like pornographic images have become necessary. One of the most recent federal protections was CIPA, or the Children’s Internet Protection Act of 2000, which calls for website filtering in public areas.

The Supreme Court ruled in United States v. American Library Association, 539 U.S. 194 (2003) that the withholding of E-rate grants, which provide funding for school technology, was not unconstitutional when it comes to upholding CIPA in public libraries. The same is said of the use of filters in public schools. The ruling stated that Congress has the right under the Taxation and Spending Clause (U.S. Const., art. I, § 8) to use its funding as it saw fit and that includes whether or not to give the E-rate funds to public libraries and schools if such places do not comply to federal requirements.

However, the Supreme Court has never upheld viewpoint discrimination as constitutional. R. Trevor Hall wrote in his article, “Examining the constitutionality of Internet filtering in public schools: a US perspective” about the Board of Education, Island Trees Union Free School District No. 26 v. Pico (No. 80-2043) 638 F.2d 404 (1982) case, where the court recognized that school libraries do not necessarily have the right to remove books, just because the administrations disagree with the content (p. 229). By blocking access to only one half of an argumentative topic, such as gay marriage, schools districts like Governor Mifflin go too far with CIPA filtering requirements. Under CIPA, schools are legally required to filter out harmful content to protect minors. Things that are considered harmful include:

“any picture, image, graphic image file, or other visual depiction that taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex…; …and taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors” (CIPA, 2000)

According to Barbara Jansen’s article, “Internet Filtering 2.0,” while more students today have access to the Internet at home, there is still a significant number that rely on school access for projects and independent research (p. 49). In an age where the Internet has become a major source of research for students of all ages, First Amendment rights groups meticulously watch for cases where schools may overzealously block materials that might not require restriction under CIPA’s guidelines.

Ultimately, the courts give broad digression to the schools in deciding what is safe for its students. In Governor Mifflin School District’s case, the blocks pick the sites up as websites about “sexuality,” which could be considered too broad a filter. Other famous cases like Bethel School District v. Fraser, 478 U.S. 675 (1986) have defended schools’ decisions to do what they considered necessary to keep the peace at their institutions. The balance of free speech and the protection of minors will most likely keep tensions high in academic settings, with most of the support of the court going to the schools.


References
Jansen, B. A. (2010). INTERNET FILTERING 2.0: CHECKING INTELLECTUAL FREEDOM AND PARTICIPATIVE PRACTICES AT THE SCHOOLHOUSE DOOR. Knowledge Quest, 39(1), 46-53.

Migdail-Smith, L. (2013, March 15). Mifflin says Internet filters eased to address speech rights; ACLU weighs in. Retrieved from http://readingeagle.com/article.aspx?id=459086

Trevor Hall, R. (2006). Examining the constitutionality of Internet filtering in public schools: a US perspective. Education & The Law, 18(4), 227-245.

Is a Salacious Journal Sexual Harassment or Free Speech?

Brust_1 Brust_2

By Amelia Brust

Former Oakland University student Joseph Corlett filed a suit against the Detroit-area institution for $2.2 million and four credits, claiming his First Amendment rights were violated when in 2011 the school suspended him from taking classes until winter 2013. Corlett was suspended for a journal, entitled “Hot for Teacher,” he submitted in his English 380 writing class for an assignment. The journal contained writings in which Corlett described being sexually attracted to his teacher. Corlett stated the writings, which include a description of his teacher as “Tall, blonde, stacked, skirt, heels, fingernails, smart, articulate, smile,” were a “whimsical exaggeration,” and that previous writings he had done for the class on similar themes had earned him A’s. Corlett said the assignment’s instructions were described as requiring the work to be “raw” and possibly things people might not want to hear.

Oakland University suspended Corlett saying his writings violated the school’s sexual harassment policy, which includes “but are not limited to, sexual assault and unwelcome:  sexual propositions, sexually graphic comments about a person’s body, touching, patting, pinching, leering, persistent sexual jokes or comments, and displays of sexually graphic pictures.”[1] As reported by the Detroit Free Press[2], emails sent by the teacher to university officials said Corlett “has made his gun obsession obvious to other colleagues and has managed to make himself known in negative ways to so many other females on campus, I am feeling increasingly uncomfortable and unsafe.” Corlett maintains he has never threatened anyone.

Albeit unusual, the nature of this case is not unprecedented. The wording of organizations’ sexual harassment policies are a common thread in such cases. The 2010 case of Lopez v. Candaele (630 F.3d 775)[3] saw a student at Los Angeles Community College argue for his First Amendment rights against a teacher. In this case, Lopez had made a speech in class about his personal religious views and marriage views, but was interrupted by his teacher. Lopez was cited under the school’s sexual harassment policy, which he argued was “unconstitutionally overbroad and vague.” Although Lopez could not seek damages, for he lacked evidence of injury from the event, the U.S. Ninth Circuit Court of Appeals granted him a preliminary injunction to further pursue the argument.

In 2008, the Third Circuit Court of Appeals upheld a 2007 decision by the Eastern Pennsylvania District Court that Temple University’s then-sexual harassment policy was too broad and was unconstitutional, as written in DeJohn v. Temple University (537 F.3d 301 (3d Cir. 2008).[4] The plaintiff, Christian DeJohn, said his views on women in the military were punished under the policy, and was awarded a ceremonial $1.00 for his free speech claim, which begs the question of whether Corlett will be awarded his full demands even if he wins. Judges in both cases referenced Davis v. Monroe County Board of Education (526 U.S. 629 1999), which determined sexually harassing speech must be “severe, pervasive and objectionably offensive such that it undermines the victim’s educational experience and denies equal access to an institution’s resources and opportunities”.

Outside the courts, in 2001 Tufts University heard and ultimately dismissed claims of sexual harassment brought against a student conservative magazine that published a satirical cartoon and article of a student campus leader. As before, the university’s loosely worded sexual harassment policy was cited as a reason for the dismissal.[5]

Really, the court will need to determine if what Corlett wrote is protected as classroom speech among adults, or if it indeed crossed the line. The difficulty in making such a determination is the context of the writing assignment in which the comments were made, as well as the constitutionality of the school’s policy.  As Saundra Schuster, for NCHERM, writes, “Unfortunately, many public institutions begin with publication of their student sexual harassment policy using the broader language of sexual harassment from the employment context, and then they embellish the context to incorporate prohibition of expression that reinforces the institutional mission related to civility and respect.”[6] If it the speech is not protected, Corlett would likely lose out on any damages or lost credits, and the teacher could then, file a sexual harassment suit against him or, more likely, against the university who did not adequately prevent the harassment. If that were the case, the teacher in question could seek damages under Title VII of the Civil Rights Act of 1964[7], which holds employers liable for a “hostile work environment” in which sexual harassment persists with an employer’s knowledge.

Public Employees and Free Speech

By Joié Johnson-Walker

A New York City guidance counselor was fired just days before receiving tenure for risky photos floating around the internet from her past modeling career.
Last Fall, Tiffani Webb, a “highly regarded” guidance counselor at Murray Bergtraum High School for Business Careers is suing the Department of Education of New York for “wrongful termination, sex discrimination and violation of her First Amendment Rights” according to an exclusive from the NewYorkPost.com.
Webb, now 37, modeled in seductive lingerie during her late teens and early twenties. When pursuing her career in education, she stopped. According to the NewYorkPost.com, “Webb disclosed her former career when first hired. Yet she was investigated by the DOE three times.”
This issue became a matter of concern when a student allegedly found a picture, one that was not authorized by Webb for release, online and shared it with the former principal Andrea Lewis.
According to the NewYorkPost.com, an employee of the DOE reported that Webb was dismissed for “conduct unbecoming.”
A three-member chancellor’s committee voted on Webb’s dismissal in a 2-1 rule. The dissenting member argued, “Her professional work as a guidance counselor has been outstanding, and she should not be punished for something that happened years ago.”
Webb is not the only public school employee facing this issue. Public employees across the nation are being let go for media posted across the internet. Many public employees are arguing violations of their First Amendment rights.
In 2008, Stacy Snyder, a student-teacher from Millersville University was denied her Certificate to Teach after students found her personal Myspace page. The defendants claimed that they “cautioned the student teachers to not refer to any students or teachers on their personal webpages” Snyder v. Millersville University, C.A. 07-1660, U.S. District Court for the District of Eastern Pennsylvania (2008).
Although the pictures found were not the sole result of Snyder’s denial, it is believed that they played a major role in the defendants case on why Snyder was “unsatisfactory.”
Snyder argued that the First Amendment allowed her the right to free expression through her MySpace. However, the presiding judge found that the defendants did not violate Snyder’s First Amendment right to free expression because her posts were not issues of “public concern.”
Pickering v. Board of Education, 391 U.S. 563 (1968) found that “the interests of the [employee] as a citizen, in commenting on matters of public concern” must be balanced against “the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees.”
It seems that Tiffani Webb is going to have a hard time fighting this case because government employees are only protected under the discretion of public concern.
There is a thin line between freedom of expression and matters of public concern for those employed by the state. The question is, how much flexibility does a state employee have in the matters of individual liberty?

Government v. Religion on the Playing Field

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By Tasia Morgan

American public schools are institutions where people hold diverse, religious, cultural, and political views. Perhaps the one issue that has generated the most controversy is speech. In East Texas, Kountze High School recently found itself in the conflicts that can occur when government regulations and freedom of religion collide. Whether or not football teams and cheerleaders can promote religion at public school events has stirred up quite a controversy at Kountze High School. After officials of the district banned them from utilizing Bible excerpts in their pep-rally, these students took legal action arguing that their banners are merely an expression of freedom of speech that is supported by their First Amendment right.

While these students have the right to freedom of expression, according to a Supreme Court ruling inSanta Fe Independent School Dist. v. Doe – 530 U.S. 290 (2000) the school district does have the power to reinforce the separation between church and state. Therefore, at a public institution, the school district can no longer recognize these banners as freedom of expression because it places an infringement on the rights of those students who do not believe in Christianity and violates the Establishment Clause also supported under the First Amendment. In other words, “…religious messages [become] endorsed by the school, the school district and the local government” which does not implement a fair working environment for those who do not believe in the religion being endorsed (“Faith, Football and the First Amendment”).

As of now, the district court in Matthews v. KISD has granted to plaintiff cheerleaders and football players a temporary injunction so they can keep using the Bible verses. However the full case will be heard in June.

Cases dealing with public school and religion have had a history of different outcomes around the country. For example, in Adler v. Duval County School Board, the U.S. Court of Appeals for the Eleventh Circuit decided that the “Federal appellate court’s opinion and judgment was reinstated holding that the defendant school system’s policy of permitting a graduating student, elected by her class, to deliver an unrestricted message of her choice at graduation ceremonies was not facially violative of the Establishment Clause” (Adler v. Duval County School Board).  This opinion was strictly enforced for two reasons:

  •          The speech was not subject to particular regulations that confined the topic of the student’s message and
  •          The policy by its terms did not invite and encourage religious messages

Therefore, the Plaintiffs were not being intentionally neglected or ostracized because the school was not directly encouraging the promotion of one religion (Alder v. Duval County School Board). In the case of Indian River School District v. Doe, “the school board had a long-standing policy of praying at its regularly scheduled meetings, which were routinely attended by students from the local school district.” Contrary to the Alder v. Duval County School Board outcome, the Plaintiffs won the case based on the violation of the Establishment Clause. Because the school implemented a policy that required prayer, this without question, violated those who did not practice Christianity (Indian River School District v. Doe).

Using these cases as a reference, the court may likely side with the football players and cheerleaders rather than the side of those students who do not support the banner signs. This outcome is more likely to follow through due to the school’s absence of involvement. The school district or board did not actually request these cheerleaders and football players to display their religious signs nor did they create a policy that enforced the students to do so. Instead, this act was strictly on the basis of free expression, these athletes made the decision to use these excerpts without the intent to exclude others. With this, their form of expression did not force non-Christian students to participate in their religious messages (it was seen, not heard). Essentially, they created these signs to provide inspiration rather than conflict, which is why most people utilize religion in the first place, for guidance.                                                                                                                                                           List of Sources

NY Times Articles

“Faith, Football and the First Amendment – NYTimes.com.” The New York Times – Breaking News, World News & Multimedia. The NY Times, 22 Oct. 2012. Web. 18 Mar. 2013. http://www.nytimes.com/2012/10/22/opinion/faith-football-and-the-first-amendment.html?ref=firstamendment

Fernandez, Manny. “Governor Perry Backs Cheerleaders in Fight Over Religious Banners – NYTimes.com.” The New York Times – Breaking News, World News & Multimedia. The NY Times, 18 Oct. 2012. Web. 18 Mar. 2013.http://www.nytimes.com/2012/10/18/us/governor-perry-backs-cheerleaders-in-fight-over-religious-banners.html?_r=0

Related Source

“At the Mercy of the Majority | ACLUTx.org – The American Civil Liberties Union of Texas.” ACLUTx.org – The American Civil Liberties Union of Texas. American Civil Liberties Union of Texas, 13 Sept. 2012. Web. 18 Mar. 2013.http://www.aclutx.org/2012/09/13/at-the-mercy-of-the-majority/

“Santa Fe Independent School Dist. v. Doe.” LII | LII / Legal Information Institute. Cornell University Law School. Web. 18 Mar. 2013.http://www.law.cornell.edu/supct/html/historics/USSC_CR_0530_0290_ZO.html

Related Cases

Adler v. Duval County School Board, 250 F.3d 1330; 2001 U.S. App. LEXIS 8880; 14 Fla. L. Weekly Fed. C 691. LexisNexis Academic. Web. Date Accessed: 2013/03/18.

Indian River School District v. Doe, 653 F.3d 256; 2011 U.S. App. LEXIS 16121. LexisNexis Academic. Web. Date Accessed: 2013/03/18.

SANTA FE INDEPENDENT SCHOOL DISTRICT v. JANE DOE, 530 U.S. 290; 120 S. Ct. 2266; 147 L. Ed. 2d 295; 2000 U.S. LEXIS 4154; 68 U.S.L.W. 4525; 2000 Cal. Daily Op. Service 4865; 2000 Daily Journal DAR 6477; 2000 Colo. J. C.A.R. 3558; 13 Fla. L. Weekly Fed. S 425. LexisNexis Academic. Web. Date Accessed: 2013/03/18.

CAUSE NO. 53526. Hardlin District Clerk. Oct. 18, 2012.

https://www.oag.state.tx.us/newspubs/releases/2012/101812court_order.pdf

More on Religious Messages in Public Schools…

By John

A high school in East Texas has come under fire for having its football players come out and break through a banner with biblical passages written on them. After an anonymous community member alerted the Freedom from Religion Foundation about the practice at Kountze High School action was taken against the cheerleaders who were spearheading the campaign. There is a trial set for June 24, 2013 and an injunction had been put in place until then to stop them from putting scripture on the banners.

The state has taken the side of the cheerleaders. The Attorney General’s office had a statement saying, “Those banners, which the cheerleaders independently produce on their own time with privately funded supplies, are perfectly constitutional. The State of Texas intervened in this case to defend the cheerleaders’ right to exercise their personal religious beliefs – and to defend the constitutionality of a state law that protects religious liberties for all Texans.”

In 2000, the U.S. Supreme Court decided Santa Fe Independent School District v. Jane Doe (530 U.S. 290) ruling that schools could not play student led prayers over the intercom before football games. In the “bong hits for Jesus” case,  Morse v. Frederick 511 U.S. 393 (2006)  the Court ruled that schools could punish students for pro-drug messages at a school-sponsored function, even if it isn’t on campus. This may be used as precedent along with the Santa Fe case in which students were using school property and facilities to play the announcements it was seen as the school promoting religion. Morse may be used to show that the school can limit religious speech even if they aren’t promoting it because it conflicts with their interests as a public institution.

It is expected for the courts to be cautious on this matter. The Texas state constitution allows for students to freely express their religious beliefs without discrimination but the issue of allowing for the expression in school complicates the matter. Although the state and the cheerleaders will argue the school isn’t promoting the scripture and that they are doing this on their own, I don’t think the court will rule in their favor. If you look at the reasoning in Santa Fe, the Court said even that in that case the prayers were “on school property, at school-sponsored events” and I think they’ll use this reasoning to disallow the scripture on the banners in

I think this is sound reasoning. The school may not directly be sponsoring the cheerleaders’ actions but it is occurring on their property during a school sponsored event that represents the general student body. The problem is that it isn’t clear if the school is endorsing religion or not by allowing this during a school sponsored event. If it is ruled they are this is unconstitutional. Obviously it won’t be until June before we find out what happens but I think that the banners will be banned.

Off-Label Promotion of Drugs is Now a Matter of Free Speech

Caruso_1 Caruso_2

By Joanne Caruso

In recent years, the pharmaceutical industry has experienced numerous lawsuits alleging illegal promotion of off-label drugs, resulting in the payment of billions of dollars to the federal government. But a recent decision by the federal appeals court has ruled that such promotion, in fact, is actually a matter of free and protected speech, and could potentially change the way prescription drugs are marketed and promoted in the United States.

Caronia v. United States focused on Alfred Caronia, a former sales representative of Orphan Medical who was criminally prosecuted for promoting off-label uses for Xyrem, a Food and Drug Administration-approved drug to treat narcolepsy (Fauber). Caronia was reported to have promoted Xyrem for off-label uses for other conditions such as fibromyalgia and insomnia, which were uses that were not approved by the FDA. While physicians are free to prescribe an approved drug for any use, it is illegal for drug manufacturers to market off-label uses for drugs that have not been specifically authorized by the FDA under the Food, Drug, and Cosmetic Act 21 U.S.C. § 301 et seq (2002). The very act of promoting off-label uses could serve as evidence that a manufacturer had directly intended to sell a “misbranded” drug that would “be used for purposes not listed in the label” (Thomas).

In 2005, Caronia was under federal investigation for his statements. He was later caught on tape promoting the off-label uses of Xyrem to a doctor who was working with the government. He was convicted in 2008 and appealed the charges to the Second Circuit Court of Appeals in Manhattan (Thomas). He claimed that his truthful and non-misleading off-label promotions constituted protected speech under the First Amendment and that these charges ultimately sought to restrict and criminalize his speech (Fauber).

On December 3, 2012 in a 2-1 decision, the Second Circuit Court of Appeals agreed, stating that “the government clearly prosecuted Caronia for his words––for his speech,” and that his rights under the First Amendment had been violated (Thomas). In reaching their decision, the court cited the Supreme Court case Sommell v. IMS Health 564 U.S. _____ (2011) which also dealt with the restriction of speech and information in the medical world. The Vermont law prohibited the sale of physician drug records so that the information could not be used by drug companies to more directly market and target particular drugs to physicians. This restriction of the flow of information to physicians regarding other drug possibilities silenced the marketed speech of the drug companies and the law was overturned (Thomas). The topic of commercial speech was also contested in the case Citizens United v. Federal Election Commission 558 U.S. _____ (2010) when the Supreme Court ruled that the restriction of expenditures from corporations and unions had the same effect as directly restricting political speech (558 U.S. 4 (2010)).

The final decisions in both of these cases worked to secure First Amendment protections to manufacturers and corporations, while providing the foundation for Caronia’s appeal. The majority concluded that Caronia did not possess an intent to deliberately promote misleading or false information regarding Xyrem, and that simply promoting truthful, off-label uses for a drug was protected speech and did not violate the FDCA (Kelton and Fauber). Through this decision, the Second Circuit Court of Appeals became the first court to recognize truthful and non-misleading off-label promotion as constitutional, while false off-label speech could constitute a criminal offense (Sack).

Gerald Masoudi, a former chief counsel of the FDA, noted that the truthful discussion of off-label uses of drugs is quite legitimate within the medical community and that the decision in Caronia will force the FDA to focus on off-label cases in a new way. “It’s going to make the FDA focus on the kinds of speech that are more likely to harm consumers, such as false or misleading marketing, versus something that is not approved.” The Pharmaceutical Research and Manufacturers of America also agreed with the court’s decision and believe that this ruling will help to provide a more current and accurate flow of information from professionals to patients (Thomas).

Yet others disagree. While the decision in Caronia may prove to be a great victory for the pharmaceutical company, some doctors worry about the increased health risks that this decision could pose to the public. Because off-label uses for drugs can now be freely promoted within the Second Circuit, side effects and risks to patients could be an even greater unknown since the drug was not approved by the FDA for that particular use. Dr. Steven Nissen, a cardiologist with the Cleveland Clinic, explains that this issue is simply not a matter of free speech but “is the medical equivalent of yelling fire in a crowded auditorium.” This sentiment echoes the potential danger this decision could bring to public health, while the overall strength of the FDA could weaken over time if the off-label promotion of drugs is legally permitted (Fauber).

So what does this mean for the future of free speech as it applies to the pharmaceutical industry? Because off-label promotion is no longer illegal in the Second Circuit, drug manufacturers are free to market their drugs for uses not approved by the FDA. There will be less restrictions and potentially less fear of criminal prosecutions, as long as the information provided is considered truthful. But this decision could also pose problems to future cases as what is deemed “truthful” and “non-misleading” may be considered too broad (Sack). It is believed that the government will most likely ask for the case to be heard again in the federal appeals court and the case could make its way up the Supreme Court in time. While the Second Circuit’s decision only reaches New York, Vermont, and Connecticut, it could have even greater national effects on public health and safety, as well as on how drug promotion will be approached in the future, if it does reach the Supreme Court (Thomas).

Sources:

Fauber, John. “Off-Label Drug Marketing Is ‘Free Speech,’ Court Rules.” ABC News. ABC News Network, 05 Dec. 2012. Web. <http://abcnews.go.com/Health/Drugs/off-label-drug-marketing-free-speech-court-rules/story?id=17883930>.

Kelton, Erika. “Off-Label Pharma Prosecutions Won’t Be Silenced By First Amendment Decision.” Forbes. Forbes Magazine, 04 Jan. 2013. Web. <http://www.forbes.com/sites/erikakelton/2013/01/04/off-label-pharma-prosecutions-wont-be-silenced-by-first-amendment-decision/>.

Sack, Jonathan. “Does Misdemeanor Misbranding Survive Caronia?” Forbes. Forbes Magazine, 11 Dec. 2012. Web. <http://www.forbes.com/sites/insider/2012/12/11/does-misdemeanor-misbranding-survive-caronia/>.

Thomas, Katie. “Ruling is Victory for Drug Companies in Promoting Medicine for Other Uses.” The New York Times. The New York Times, 03 Dec. 2012. Web. <http://www.nytimes.com/2012/12/04/business/ruling-backs-drug-industry-on-off-label-marketing.html?_r=1>.