Tag Archives: campaign

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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Campaign donation issue reopened

On Tuesday, the Supreme Court agreed to hear McCutcheon v. Federal Election Commission, 12-536.   The gist of this case deals with the constitutionality of the two-year ceilings that federal law sets on what an individual can give during a campaign for the presidency or Congress, in donations to candidates, to political parties, or to other political committees.

The Supreme Court did not explicitly promise whether it would reconsider its decision in Buckley v. Valeo (1976).  Since Buckley, the government had more leeway to control contributions to candidates or political organizations than over spending by candidates or by independent political activists.

In 2010, the Supreme Court decided a hotly controversial decision in Citizens United v. FEC.  In Citizens United, the Supreme Court declared unconstitutional any limit on spending during federal campaigns by corporations or labor unions, so long as they spent the money independently of a candidate or candidate organization.

In McCutcheon, McCutcheon wants to be able to give more contributions than the two-year overall limits.  McCutcheon’s contributions, if he could go over the limit, would have exceeded the two-year ceiling by $26,200.

Under federal law, the ceiling for the 2011-2012 campaign season was $2,500 per election to any candidate or a candidate’s campaign organization, no more than $30,800 per year to a national political party, no more than $10,000 per year to a state political party, and no more than $5,000 to any other political committee.

The two year ceiling for that same period, which is the issue in this case, is set at $177,000 overall.  That is broken down into $46,200 to a candidate for federal office and $70,800 to non-candidate entities.  The second amount was restricted in that no more than $46,200 could be given to a state party or a non-candidate committee.

via Campaign donation issue reopened : SCOTUSblog.

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Filed under Appellate, civil rights, courts, Judges, legal decision, rules, Supreme Court, union

Campaigners Can’t Lie in MN

Minnesota can prohibit political campaign workers from swaying an election by intentionally lying about a candidate or ballot question, a federal judge ruled.

The Minnesota Fair Campaign Act makes it a gross misdemeanor for anyone “who intentionally participates in the preparation, dissemination, or broadcast of paid political advertising or campaign material with respect to the personal or political character or acts of a candidate, or with respect to the effect of a ballot question, that is designed or tends to elect, injure, promote, or defeat a candidate for nomination or election to a public office or to promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.”

It drew a challenge in 2008 from the 281 CARE Committee and the Citizens for Quality Education, which campaign against ballot initiatives that seek increased funding for school districts through bond increases and tax levies.  The groups claimed that the law violated their right to free speech and chills their ability to participate in rigorous political debate.  A federal judge in Minneapolis dismissed the complaint for lack of standing, but the 8th Circuit reversed in May 2011.

On remand, U.S. District Judge Ann Montgomery granted summary judgment to the defendants, who consisted of two county attorneys and the state attorney general.

“Plaintiffs correctly note that our countrys forefathers used rancourous[sic], sometimes false statements to influence voters or even gain material benefits for themselves,” Montgomery wrote.

“But whats past is not always prologue. Over a century ago, the Minnesota legislature implemented minimal, narrow restrictions against knowingly false speech about political candidates in an effort to protect the debates between honestly held beliefs that are at the core of the First Amendment. For nearly a quarter of a century, these restrictions have also applied to statements regarding ballot initiatives. The ballot provisions in Minn. Stat. § 211B.06 reflect a legislative judgment on behalf of Minnesotan citizens to guard against the malicious manipulation of the political process. The court finds that the provisions at issue are narrowly tailored to serve this compelling interest.”

Though Minnesota Attorney General Lori Swanson had sought dismissal on the basis of qualified immunity, Montgomery deemed this question moot.

via Courthouse News Service.

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Union Decertification Case Law

The D.C. Circuit Court of Appeals, in SFO Goodnite Inn v. NLRB, ____F.3d____ (D.C. Cir. Nov. 20, 2012), enforced  a National Labor Relations Board order finding a California hotel improperly withdrew recognition from a UNITE HERE local, rejecting the hotel’s argument that it lawfully relied on anti-union petitions signed by a majority of its employees.

In the decision, the court approved the NLRB’s interpretation of Hearst.

[T]he Board has now articulated a clear line for applying the Hearst presumption of taint in “the narrow circumstance where an employer unlawfully instigates or propels a decertification campaign, and then invokes the results of that campaign to justify its unilateral withdrawal of recognition from its employee’s representative.”

The Board explained that the Hearst presumption applies where the employer is directly involved in advancing a decertification petition, whereas the Master Slack test applies where the employer committed unfair labor practices unrelated to the petition that may have contributed to the erosion of support for the union.

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Filed under courts, District Court, labor, legal decision, NLRB, union

Alito Defends Citizens United

ustice Samuel A. Alito Jr. says opponents of the Supreme Court’s Citizens United decision have waged a successful public relations campaign, even if their point is misguided.

Opponents have targeted Citizens United for its holding that corporations have a First Amendment right to expressly support political candidates with independent spending. Speaking on Thursday, Alito pointed to the public relations campaign against free speech rights for corporations that has gathered steam since the decision, report the Associated Press and The BLT: The Blog of Legal Times.

“It is pithy, it fits on a bumper sticker, and in fact a variety of bumper stickers are available,” Alito said at a Federalist Society dinner. He pointed to two examples: “End Corporate Personhood” and “Life does not begin at incorporation.”

Alito said there may be arguments for overturning Citizens United, but not on the basis that corporations lack First Amendment rights. Media corporations already have such rights, the court has made clear, when they were fighting libel suits or seeking the right to publish the Pentagon papers, Alito said.

Alito also did some reminiscing during the speech as he talked about his constitutional law class at Yale Law School with Charles Reich, who had written several books about the decline of society. Reich thought “redemption could be found in the college hippie,” Alito said. Reich spent lots of time on the difficulties of legal practice, but little time on constitutional law, Alito said. “I was forced to teach myself.”

via Alito Defends Citizens United, Says Opponents’ Bumper Stickers Are Pithy but Misguided – News – ABA Journal.

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Stericycle vs Novotel at NLRB

In Stericycle, Inc., the Board reversed its Novotel rule for dealing with union-backed employment law suits before an election.

At issue is whether union assistance with such suits constitutes an improper grant of benefit that might warrant re-running the election if the union wins. Under Novotel, a union may give employees free legal services to investigate, prepare, and file a lawsuit during the critical period before an election. However, the D.C. Circuit has refused to enforce that rule, prompting the majority in Stericycle to reverse it and conclude that such assistance is objectionable conduct.

The key ruling in the decision, which Members Becker, Hayes, and Pearce joined, is that:

we hold that a union engages in objectionable conduct warranting a second election by financing a lawsuit filed during the narrow time period—known as the “critical period”—between the date of the filing of the representation petition and the date of the election, which States claims under Federal or State wage and hour laws or other similar employment law claims on behalf of employees in the unit.

The Board acknowledged the importance to employees’ collective rights that education about their workplace rights, attorney referrals, and funding for lawsuits provides. But those interests were outweighed by the need to avoid the grant of benefits before an election (Novotel distinguished funding extraneous benefits with funding lawsuits directly related to the workplace problems that lead to the union campaign). The Board also argued that the harm to employees’ collective rights was minimal because of the critical period was only for a limited amount of time. Further, funding a lawsuit before the critical period remains unobjectionable conduct.

The Board, with Liebman, Becker, and Pearce signing on, also tried to define the boundaries of permissible and impermissible assistance.  According to the Board, is is OK for a union during the cirtical period to “inform employees about their rights [under labor and employment laws], assist them in identifying violations, urge them to seek relief, and even refer them to competent counsel [which may file suit during the critical period as long as there is no union funding] without casting into question subsequent election results.”

via Workplace Prof Blog.

 

 

 

 

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8th Cir to hear MN campaign law

From MPR:

A federal appeals court will hear a challenge to Minnesota’s law requiring corporations to disclose their political donations.

A three-judge panel of the 8th U.S. Circuit Court of Appeals upheld the law in May. But in September, the entire court will hear the matter again.

Arguments before the full 8th Circuit will be September 21 in St. Louis

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Filed under Appellate, courts, Minnesota

Campaign Disclosure Law

The Eighth Circuit Court of Appeals upholds campaign disclosure law

In a 2-1 decision, the 8th Circuit Court of Appeals has upheld a Minnesota campaign finance law that requires extensive disclosure of independent expenditures on behalf of candidates and restricts corporate contributions to state candidates and political parties.

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