Tag Archives: speech

Clicking ‘like’ is protected by First Amendment, 4th Circuit says

The ABA Journal has an interesting case regarding Facebook and its “likes.”  If you use Facebook, it is very likely that you have “liked” a page, a comment, a photo, etc.  The 4th Circuit Court of Appeals recently held that a “like” is protected under the First Amendment.

In Bland v. Roberts, No. 12-1671  (4th Cir. Sept. 23 2013), six plaintiffs allege that because their support for the Sheriff’s opponent, the Sheriff retaliated by choosing not the reappoint them. One of the plaintiffs had “liked” the opponent’s Facebook page.

The First Amendment application for a public employee is interesting. In order for a public employee to enjoy First Amendment protection and show that the employer violated the First Amendment, the employee has to show 3 items.

  • (1) the employee was speaking as a citizen upon a matter of public concern rather than an employee about a matter of personal interest;
  • (2) the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and
  • (3) the employee’s speech was a substantial factor in the employer’s termination decision

Furthermore, the degree of the protection depends on whether the political affiliation or political allegiance is an appropriate requirement for the effective performance of the public office.  Here, the three deputies were trained as jailers and had never made an arrest.  In other words, their political support for the Sheriff’s opponent may not a requirement for their performance of their duties.  This speech includes a “like” on Facebook.  The 4th Circuit remanded the case for further proceedings.

via Clicking ‘like’ is protected by First Amendment, 4th Circuit says.

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Court orders reporter to testify in leak case re: Sterling

The Fourth Circuit Court of Appeals ruled in a 188-page decision that there is no journalist protection of sources.  The decision can be viewed here.

In this case, ex-CIA officer Sterling worked for the CIA from 1993 to Jan. 2002.  During his tenure, he provided classified information to a NT Times reporter Risen.  In 2001, Risen published two articles based on classified information provided to him by Sterling.  After Sterling’s employment was terminated, Sterling attempted to publish a book but was denied ultimately because it contained classified information.

Afterwards, and while Sterling was pursuing legal action against the CIA, Sterling again gave Risen classified information.  NY Times Reporter met with senior administration officials to discuss the impact of the story.  The recommendation was to not publish, which the NY Times agreed to.  Nevertheless, NY Times reporter Risen published his book, “State of War: The Secret History of the CIA and the Bush Administration,” which disclosed classified information.

As a result, the Attorney General sought to compel Risen’s testimony about the identity of his source.  Risen motioned to quash the subpoena on the basis that he was protected under the First Amendment or/and the federal common-law reporter’s privilege.

 

The Circuit Court of Appeals disagreed.  The court held that Risen did not have a reporter’s privilege.  The Circuit Court of Appeals relied heavily on Supreme Court cases.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court in no uncertain terms rejected the existence of a reporters’ privilege.   In Univ. of Pa. v. EEOC, 493 U.S. 182, 201 (1990), the Supreme Court explained that the “First Amendment does not invalidate every burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.”  In Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991), the Supreme Court again stated that the First Amendment does not “relieve a newspaper reporter of the obligation shared by all citizens to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source.”

Pointedly, the Circuit Court of Appeals refused to apply a “balance test” approach when deciding whether a reporter can be compelled to testify in criminal proceedings.  The court noted that in civil matters, the court recognized a reporter’s privilege which could be overcome if the 3-part test was met.

The Circuit Court of Appeals noted why this line is so important.  In criminal cases, there is a fundamental and comprehensive need for every man’s evidence.  For this reason, any shield to information has to be narrowly construed.  In a civil matter, however, the need for information does not share the same urgency or significance.

For these reasons, the Fourth Circuit Court of Appeals ordered NY Times reporter Risen to testify in the criminal trial of former CIA official Sterling charged with providing the reporter with classified information.  In so doing, the Court of Appeals held that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them.

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July 22, 2013 · 13:45

Federal funding restrictions and the First Amendment

Generally, it is well-known that under the Spending Clause of the Constitution if you want federal funding, you have to abide by the conditions/limitations imposed by the government.  For instance, you could receive a federal grant as long as you submit X reports to the government every month.  And generally, if you are opposed to these policies/conditions, you always have the option of declining the grant.

Think, for example, of the grant offered to States if they adopt the federal Affordable Care Act Medicaid extensions.  Some States have agreed to expand, while others have rejected the expansion.  The States that choose to expand will receive monetary aid, while the rejecting States will not. See the May 29, 2013 image here.

The Supreme Court has highlights a new twist.  In Agency for Int’l Devep. v. Alliance for Open Society Int’l, No. 12-10 (2013), the Supreme Court has held that in some situations these restrictions run foul of the First Amendment – Freedom of Speech.

The Alliance for Open Society case deals with a organization receiving federal funds to combat AIDS/HIV.  As a condition for this federal funding, the government required the organization to adopt policies against prostitution and sex trafficking.

Justice Roberts pointed to how the court has interpreted the First Amendment.  Pursuant to the Freedom of Speech, the government is prohibited from telling people what they must say.  See, e.g., Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 US 47, 61.  Consequently, the Supreme Court held that the requirement violated the First Amendment.

The question for the Supreme Court then focused on whether the government can still impose that requirement as a condition for receipt of federal funding.  The Supreme Court explained,

As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds….

At the same time, however, we have held that the Government “‘may not deny a benefit to a person on the basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit.'”… In some cases, a funding condition can result in an unconstitutional burden on First Amendment rights.

This is a fine line being followed by the Supreme Court.  The Supreme Court distinguished cases where the government infringes the Freedom of Speech with cases where Congress is merely deciding not to subsidize certain actions/scenarios/circumstances.

The Supreme Court explains these different scenarios as follows:

We explained that Congress can, without offending the Constitution, selectively fund certain programs to address an issue of public concern, without funding alternative ways of addressing the same problem.  In Title X, Congress had defined the federal program to encourage only particular family planning methods.  The challenged regulations were simply “designed to ensure that the limits of the federal program are observed,” and “that public funds [are] spent for the purposes for which they were authorized…

The regulations governed only the scope of the grantee’s Title V projects, leaving it “unfettered in its other activities.”  … The TitleX grantee can continue to . . . engage in abortion advocacy; it simply is required to conduct those activities through programs that are separate and independent from the project that receives Title X funds.” … Because the regulations did not “prohibit[] the recipient from engaging in the protected conduct outside the scope of the federally funded program,” they did not run afoul of the First Amendment.

(italics and marks in original).

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ACLU challenges NSA surveillance

On June 11th, the ACLU filed a lawsuit challenging the NSA’s surveillance program.  The ACLU lawsuit alleges that the program violates the First Amendment rights or free speech and association, the right to privacy under the Fourth Amendment, and that the surveillance program exceeds the authority provided by the Patriot Act.

ACLU, a customer of Verizon, made the following comments:

This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens.

It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation.  The program goes far beyond even the permissible limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy.

The complaint can be accessed here.

via ACLU Files Lawsuit Challenging Constitutionality of NSA Phone Spying Program | American Civil Liberties Union.

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D.C. Circuit Strikes Down NLRB Notice Rule

In NAM v. NLRB, No. 12-5068 (D.C Cir. May 17, 2013), the D.C. Circuit Court of Appeals struck against the NRLB notice rule.

The background is as follows.  On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule regarding notice posting.  76 Fed. Reg. 54,006.  That final rule provides:

All employees subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…”

39 C.F.R. 104.202(a).  The final rule also declares that failure to post this notice is an unfair labor practice (ULP).   In other words, if an employer fails to put up a NLRB notice, the employer violates the National Labor Relations Act (NLRA).  This is essentially the focus for the Court of Appeals.

The court explained that under Section 8(e), the Board cannot find non-coercive employer speech to be an ULP or evidence of an ULP.  The Court of Appeals found that the NLRB’s final rule did both.  The court states,

Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice.  See 29 C.F.R. 104.210, 104.201.  And the Board may consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of antiunion animus in cases in which unlawful motive [i]s an element of an unfair labor practice.’ 76 Fed. Reg. at 54,035-36; see also 29 C.F.R. 104.214(b).

(as in original).

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No Probable Cause vs. 1st and 4th amendment?

This is an interesting decision, allowing the first and fourth amendment claims of Port Militarization Resistance, an anti-war group, to go ahead.

The lawsuit arose when allegedly two civilian U.S. Army employees (Towery and Rudd) spied on the anti-war members and secretly disrupted protests.  The anti-war group was protesting the use of sea ports in Washington State for shipments of military supplies to Iraq and Afghanistan.

The lawsuit alleges defendants befriended the anti-war group and “influenced and directed” tactics to disrupt protests without cause, and that defendants broke into a confidential attorney-client list serve.

The district court dismissed most of the claims, but allowed First and Fourth Amendment allegations against Towery and Rudd to go ahead, despite their motion for qualified immunity.  The Ninth Circuit Court of Appeals affirmed.

The Ninth Court stated,

“It is clearly established that intentionally enabling arrests without probable cause in order to suppress speech violates the First Amendment,” the unsigned and unpublished opinion from Seattle states.

“Plaintiffs have pled a plausible violation of their clearly established First Amendment rights,” the ruling states. “Plaintiffs have alleged that defendants ‘deterred or chilled the plaintiff’s political speech’ and that such deterrence motivated defendants’ conduct.”

via Courthouse News Service.

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Teamsters President Jimmy Hoffa

Teamsters President Jimmy Hoffa Labor Day Speech

“We got to keep an eye on the battle that we face: The war on workers. And you see it everywhere, it is the Tea Party. And you know, there is only one way to beat and win that war. The one thing about working people is we like a good fight. And you know what? They’ve got a war, they got a war with us and there’s only going to be one winner. It’s going to be the workers of Michigan, and America. We’re going to win that war,” Jimmy Hoffa said to a heavily union crowd.

“President Obama, this is your army. We are ready to march. Let’s take these son of bitches out and give America back to an America where we belong. . .”

via Adjunct Law Prof Blog: Teamsters President Jimmy Hoffa Labor Day Speech.

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