A woman was bicycling near Pres. Trump’s golf course in New Jersey happened upon the President’s motorcade. She could have swerved to avoid the traffic. But, realizing this was the President’s motorcade, she rode along and flipped off the President. She expressed her views. She engaged in the great American past-time, public protest, if a bit profane. She was then fired from her marketing position at Akima LLC. The employer explained that it is company policy to fire persons who post profane pictures on Facebook. See CNN news report. The picture went viral on social media. Nothing indicates she posted the picture herself. But, Juli Briskman seems to have expected she would likely be fired.

But, wait, isn’t she protected by the First Amendment? No, persons employed in the private sector do not have First Amendment rights. The First Amendment applies to actions taken by state and local governments. Private employers can indeed squash our free speech. But, you get the impression she felt it was worth it.

 

When a local politician wins office, she or he like to bring in their own persons for key positions. Sometimes, they also like to fire the employees who supported their opponent. County Clerks from here to Timbuktu will seek to replace you if you support the defeated opponent. But, the County Clerks who do so will be violating the First Amendment. The First Amendment protects our free speech. That free speech includes political support for one candidate or another.

County Clerk Rebecca Bolin did not get that memo. She won election as County Clerk of Kerr County and promptly fired three employees who supported the incumbent, Jannett Peiper. The new Clerk fired Julia Gaeza, Sarah Trainum, and Judith Rodgers in 2014. Ms. Bolin had been a deputy clerk herself before beating her boss. Ms. Bolin fired the three women on her first day in office. That is close timing indeed. Ms. Bolin told one of the three women, Julie Garza, that she was fired because of her Facebook post supporting the incumbent.

The employer moved for summary judgment and lost. Mag. Judge Primomo noted the timing, the three deputy clerks were fired the day the new County Clerk took office. He described Ms. Bolin’s motives as “ambiguous at best.” That is judge-speak for the employer’s evidence is weak. So, he was saying this case should be decided by a jury. The judge also noted there were no written warnings for any of the three deputy clerks. There was no history of poor performance.

The employer appealed to the Fifth Circuit regarding the denial of summary judgment. It argued that Ms. Bolin should receive qualified immunity for her actions. But, Kerr County settled while that appeal was pending. Texas counties are part of an insurance pool, Texas Association of Counties.TAC settled the case with the three women. The plaintiff’s lawyer indicated this amount replaced their lost income.

The three former deputies will receive $300,000, presumably that means $100,000 for each former deputy clerk. The lawyer mentioned that amount would replace their lost income. If they have been out of work for three years, that amount sounds about right as lost income

See San Antonio Express News report.

As if to prove that a person can file suit about anything, Professor James Tracy has sued the Florida Atlantic University over his termination. Mr. Tracy is the person who some months ago denied that the Sandy Hook massacre occurred. The parents of one young victim, Noah Pozner, 6 years old, claimed that Mr. Tracy harassed them and challenged them to prove their son existed. The professor was reportedly taunting the parents. He was fired last January.  Mr. Tracy was previously reprimanded in 2013 for writing on his blog that the Sandy Hook massacre was staged and for questioning the validity of other mass shootings. See CBS news report.

He has filed suit alleging First Amendment violations and wrongful termination. It is true that a state agency may not take action against an individual for expressing an opinion in a public way. But, harassing or taunting is not protected free speech. The parents of Noah Pozner described the harassment in an opinion piece published in a Florida newspaper. So, the employer can show it relied on the perception of other persons. The school will not even have to argue it believed Mr. Tracy was harassing. It can argue simply that it relied on a victim’s parents.

Too, it is one thing to have strange ideas. But, when the strange idea is part of the lawsuit, then one’s credibility starts at a deficit. Mr. Tracy’s case will be a difficult one from the get-go.

People talk about "free speech rights" all the time. But, in reality, our free speech rights are rather limited. Until the U.S. Supreme Court’s decision in Lane v. Franks, No. 13-483 (6/19/14), for example, "free speech" did not apply to speaking publicly about a co-worker at the risk of one’s job. Edward Lane testified before a grand jury about a co-worker who was being paid but never appeared for work. The co-worker was indicted by the U.S. government. But, Mr. Lane was fired. 

The lower court granted the employer’s motion for summary judgment, saying Mr. Lane’s testimony was part of his normal job duties. Case law provides that a person may not enjoy first amendment protection for speaking pursuant to his/her job duties.  The Eleventh Circuit affirmed, saying a public employee would not enjoy free speech protection simply because his speaking owes its existence to his/her professional responsibilities. That is, just because a public sector employee knows something does not make his speech "free speech." The 11th Circuit court was stretching to reach a particular result.

The U.S. Supreme Court looked at the situation more practically. A public employee does not "normally" talk to grand juries. That is just not in Mr. Lane’s job description. He was required to testify truthfully. That requirement lies with all citizens, not just public sector employees.

Too, it is inherent in the free speech line of cases that public employees have information that is valuable to the public. It is precisely that sort of information that the courts have sought to protect. The courts should encourage such information to shed light on governmental entities that might otherwise seek to avoid scrutiny. See Supreme Court decision here

I write a blog.  For me, a blog is commentary, not a news source.  I cannot imagine trying to cover news from a blog.  But, Roger Shuler has been doing just that with his blog, Legal Schnauzer.  And, now he has been arrested for defamation.  

Mr. Shuler writes a blog from Brimingham, Alabama.  He has accused various state officials of corruption.  The son of a former governor filed suit against Legal Schanuzer accusing the blogger of defamation.  Unwisely, Mr. Shuler chose to represent himself.  Mr. Shuler had accused Robert Riley, Jr. of impregnating a lobbyist named Liberty Duke.  Both persons denied the accusation.  But, Mr. Shuler persisted.  In July, Mr. Riley and Ms. Duke sought an injunction against Mr. Shuler.  Instead of responding, Mr. Shuler argued that the court lacked jurisdiction over him.  ….  Yes, that would be a weak defense.  The court issued a broad preliminary order prohibiting Mr. Shuler form making "defamatory statements" about Mr. Riley and Ms. Duke.  

Mr. Shuler failed to appear at a subsequent hearing.  The judge found him in contempt and issued a warrant for his arrest.  He was arrested in October, 2013.  An arrest for civil contempt is exceedingly rare.  I have to think that a judge went crazy, or a certain blogger did not have a lawyer, or both.  

At some hearing, Mr. Shuler represented himself.  The judge said that hearing would serve as the trial on the merits.  The judge issued a ruling that Mr. Shuler must not publish anything more about Mr. Riley and Ms. Duke involving an affair, an abortion, or payoffs and that Mr. Shuler must remove the previous posts or remain in jail.  See San Antonio Express News report

Without a lawyer, I very much doubt anything was shown or proven at the supposed trial on the merits.  But, I have to say, Mr. Shuler in not hiring a lawyer, what did he expect?  One lone blogger cannot hope to emulate a newspaper.  I cannot imagine how Mr. Shuler thinks he can compete with an actual news outlet.  And, if you cannot back up your allegations in your post, then you really should not publish them.  Some folks see this as a free speech case.  It seems to me to be more about failing to appreciate the need for legal representation……

Susan Graziosi had been employed by the Greenville, Mississippi Police Department for some 26 years when a fellow officer was killed in the line of duty in Pearl, Mississippi.  The Greenville P.D. chose not to send an officer to the funeral in Pearl, some two or three hours away.  Sgt. Graziosi objected to that failure and posted comments on her Facebook page criticizing the Greenville P.D. leadership.  She said, among other things, that the leaders should lead or get out of the way.  She mentioned no one by name, but her comments appeared to be addressed to the new Chief of Police. 

The Chief fired her soon after.  Cited in her termination letter were several police department policies, one of which stated:  "chronic complaining about operations to the extent that supervisors must spend excessive time dealing with problems or issues caused by complaints" can lead to termination.  

Yes, that is right.  The Police Department had a policy against complaining.  (Thanks to Molly DiBianca at Delaware Employers Blog for pointing this out).  Truly a Human Resources representative dream policy.  

Sgt. Graziosi filed suit alleging First Amendment issues.  Grasiosi v. City of Greenville, No. 4:12-CV-68-MPM-DAS, 2013 US LEXIS 172581 (N.D. Miss. 12/3/2013).  A government worker does have some First Amendment right to comment on issues of public concern.  But, that right is balanced against an employer’s right to maintain an efficient workplace.  The employer’s right to maintain good order and discipline is especially important in a paramilitary organization like a police force.  In this case, as many other police cases, the district court found that Ms. Grasiosi’s comments were not protected by the First Amendment.  Her comments were more about her personal concerns about the department than about some larger public policy, said the court.  So, the court granted the employer’s motion for summary judgment. 

But, if I worked at the Greenville Human Resources department, I would still seriously re-think that policy against complaining……

The Fourth Circuit overruled a lower court decision and found that "liking" a candidate is protected free speech.  A public sector employee "liked" the losing candidate for Sheriff.  The winning candidate then cleaned house of his opponent’s supporters.  He fired the "likers,"  See ABA Bar Journal report.  But, now the appellate court has overturned the lower court.  The Fourth Circuit noted that "liking" someone on Facebook is the same as typing out the words of support.  See Workplace Prof blog post.  

Yea, no kidding.  I wonder if  the lower court judge has a Facebook account and knows what "like" does on FB…..  

It is not often that the Fifth Circuit overturns summary judgment.  The chances of that happening are about ten percent, according to one study.  I previously discussed that study here.  in Haverda v. Hays County, No. 12-51008 (5th Cir. 7/17/13), the 20 year employee Richard Haverda supported the incumbent in his race for re-election as County Sheriff.  Capt. Haverda published a letter supporting the incumbent describing his efforts regarding running the County Jail.  The incumbent lost.  So, as often happens after an election, the winning Sheriff sought to remove supporters of the opponent, in this case, the Captain of the Jail.  The new Sheriff cited problems in the jail as grounds for terminating Capt. Haverda.

 The employer moved for summary judgment and won, citing the alleged work deficiencies claimed by the new Sheriff.  On appeal, the court noted the alleged deficiencies but rejected the lower court’s finding that the employee was simply disagreeing with the employer’s assessment of his work performance.  The employee had actually asserted pretext regarding the employer’s claims, said the higher court.  If all the employee had done was to deny the allegations, that might not have been enough to create a genuine issue of fact.  But, said the Fifth Circuit, the employee also provided testimony from a co-worker that the allegations regarding Capt. Haverda’s work performance were not true.  The plaintiff also offered evidence of 20 years of positive work evaluations and an alternative explanation for a separate issue.  Such evidence, said the court, was enough to create a fact issue, whether the fact issue be "weak or strong.  Too, no jail personnel other than Mr. Haverda were terminated.   

Even though this was a First Amendment case, the same analysis would apply in any discrimination case.  The issue is whether the plaintiff can create fact issue based on more than mere conclusory allegations.  Here, the plaintiff did so, and this one time perhaps, the court was listening. 

A Lubbock, Texas lawyer has filed suit against against the Texas Department of Insurance, Worker’s Compensation Division because the Texas Dept. of Insurance sent him a "cease and desist" letter.  The TDI had sent John Gibson a letter warning him to stop using the words "Texas" and "worker’s compensation" in the web address.  Mr. Gibson operates a web site called www.texasworkerscomplaw.com.  The TDI accused Mr. Gibson of violating a provision of the Texas Labor Code which prohibits use of the words "texas" and "workers compensation" in connection with advertising and solicitation for business.  In his lawsuit, Mr. Gibson argues this provision is unconstitutional as a violation of the First Amendment.  See Texas Lawyer report.  

I am sure that provision must date from the bad ole days of workers compensation litigation, which at one time was lucrative.  Workers compensation was the subject of much advertising as late as the 1980’s prior to so-called tort reform.  Now, very few lawyers practice workers compensation law.  More importantly, blogs have been seen by most observers as not advertising and more as an educational tool.  For example, law firm news letters are exempt from the advertising rules because they are seen as more educational than solicitations for business. This will be an interesting lawsuit as it explores the nature of blogs. 

The Supreme Court says it is permissible to protest at funerals for dead service members with very provocative signs, such as "You are Going to hell," "Thank God for dead soldiers" and worse.  See Yahoo news report.  As an Iraq veteran, I would like to "free speech" that pastor in the face.  He is deliberately trying to incite a reaction from those attending the funeral for those killed in Iraq and Afghanistan.  But, I also know from several published reports that in this case, the father did not see the signs at the funeral.  It was only weeks later that he saw the signs in various news reports.

It was still extremely upsetting for him to see hateful signs directed toward his son’s death.  There is a rule of law that 1st Amendment would not trump "fighting words" – words that have no value other than inciting riot or violence.  I had hoped these signs would rise to that level.  I have not read the decision but am sure the fact that the father did not see the signs until weeks after the funeral were an important factor.  

Whatever.    I would still like to "free speech" that pastor in the kisser……