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The ruling is a setback for University of North Texas administrators who had asked the court to dismiss the lawsuit brought by former adjunct professor Nathaniel Hiers. (University of College / Shutterstock.com)

by Alex Morey

A First Amendment lawsuit filed by a former University of North Texas adjunct professor who was non-renewed in 2019 for criticizing microaggressions can continue, a federal district court judge held on Friday. Along with denying the universitys motion to dismiss Nathaniel Hiers First Amendment retaliation claims, the court held that attempting to force Hiers to apologize likely comprised unconstitutionally compelled speech. The court also denied qualified immunity to the UNT administrators involved in the alleged retaliation, concluding that any reasonable university official would have known that it was unconstitutional to discontinue [Hierss] employment because of his speech.

FIRE first covered the suit, sponsored by Alliance Defending Freedom, when it was filed back in April 2020. As we summarized the facts at the time:

The trouble started in November 2019, when someone anonymously left a stack of flyers in the [UNT] faculty lounge explaining the concept of microaggressions, which the flyers described as verbal and nonverbal behaviors that communicate negative, hostile, and derogatory messages to people rooted in their marginalized group membership. According to his complaint, Hiers believes that the concept of microaggressions hurts diversity and tolerance because it teaches people to see the worst in other people, promotes a culture of victimhood, and suppresses alternative viewpoints instead of encouraging growth and dialogue. Indeed, microaggression theory has been the subject of much public debate, including as the complaint notes in FIRE president Greg Lukianoff and NYU social psychologist Jon Haidts recent book, The Coddling of the American Mind.

So in response to the flyers he disagreed with, Hiers wrote a note on the chalkboard in the faculty lounge that read please dont leave garbage lying around, with an arrow pointing to [one of the] flyers.

According to [Hierss] complaint, professors regularly leave comments and jokes on the faculty lounge chalkboard, often anonymously. But this time, Ralf Schmidt, chair of the math department, sent an email to the entire department with a photo of the comment, stating, Would the person who did this please stop being a coward and see me in the chairs office immediately. Thank you.

Fridays decision by district court Judge Sean Jordan dismisses a number of Hiers claims, such as for breach of contract. However, he finds the professor plausibly alleged that the university officials violated his right to freedom of speech, as he spoke outside of his job duties as a private citizen on matters of public concern (citations omitted here, and in quotes below):

Hierss critique of the flyer on microaggressions transcended personal interest and touched on a topic that impacts citizens social and political lives. His speech did not address a personal complaint or grievance about his employment. The point of his speech was to convey a message about the concept of microaggressions, a hot button issue related to the ongoing struggle over the social control of language in our nation and, particularly, in higher education.

The court notably cited FIRE President and CEO Greg Lukianoff, Executive Director Robert Shibley, and First Amendment scholar and FIRE Legal Fellow David L. Hudson, Jr. (see page 22) for the proposition that debate over microaggressions is a matter of public concern.

Fridays decision is a win for faculty targeted for their protected speech, particularly adjuncts who lack the protections of tenure.

The court also pushed back on UNTs assertion that Hierss language was uncivil or otherwise removed from the First Amendments protection, instead holding that Hiers expressed the kind of pure speech to which the First Amendment provides strong protection.

In sum, Hiers met the burden, at this stage of the litigation, for his First Amendment retaliation claims to continue:

Preserving the freedom to think as you will and to speak as you think; is both an inherent good, and an abiding goal of our democracy. The university officials allegedly flouted that core principle of the First Amendment when they discontinued Hierss employment because of his speech. Accepting the allegations as true, the Court concludes that Hiers plausibly alleged that the university officials violated his right to freedom of speech.

The court was also persuaded that UNT may have violated Hierss right to be free from compelled speech when administrators allegedly asked him to apologize for his speech:

Taking these allegations as true and viewing them in the light most favorable to Hiers, it is plausible that the university officials unconstitutionally punished Hiers for refusing to affirm a view the concept of microaggressions with which he disagrees. Hiers has plausibly alleged that the university officials discontinued his employment that is, punished him because he did not express honest regret about his views and speech on microaggressions.

Nor was the judge moved by UNTs argument that it did not compel speech by Hiers because it did not require him to publicly apologize:

To the contrary, precedent establishes that the government violates the First Amendment when it tries to compel public employees to affirm beliefs with which they disagree. Period.

Fridays decision is a win for faculty targeted for their protected speech, particularly adjuncts who lack the protections of tenure. FIRE will continue watching this case closely as it progresses.

See original here:
Court: University of North Texas professor's First Amendment retaliation lawsuit over firing for calling 'microaggression' flyers 'garbage' can...

Juli A. Metzger| Special to The Star Press

As we embark on Sunshine Week, an annual recognition of the importance of open government, I cannot help but reflect on our imperfect union, and that the free flow of fact-based news continues to hit roadblocks in this age of misdirection and disinformation. Fake news, if you will.

But whatever obstacles we encounter in the United States serve as warnings to what we could face, if left unchecked. United States press operations have pulled out of Russia after journalists covering the invasion of Ukraine were threatened. Russias President Putin makes no secret how he feels about the free flow of information, and the only information left for the Russian people is government-regulated propaganda.

The former American Society of News Editors (now theNews Leaders Association) launched Sunshine Week in 2005 as a national initiative to promote a dialogue about the importance of open government and freedom of information.

The weeklong celebration is held every Marchto coincide with theMarch 16birthday ofJames Madison,the father of the U.S. Constitution and a key advocate of the Bill of Rights.This year, it is March 13-19.

The First Amendment provides us with great protection from government interference for what we say and write, particularly on political issues or matters of public interest. We should remember that the nations founders created those protections to allow for what the U.S. Supreme Court has called robust and vigorous debate. In 2002, JusticeAnthony Kennedywrote, The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

These days, as we witness what it means to be silenced and without recourse, we should think about those words and why the founders and the nation ratified the First Amendments five freedoms during a period of great division and debate not unlike today. Unfettered flow of information and access to government is for each of us, not just members of the press, which leads to a timely discussion this week on that very topic.

Last October, Indiana Attorney General Todd Rokita bannedAbdul-Hakim Shabazz from covering his press conferences, saying he wasnt an actual journalist. The ACLU in February filed a lawsuit citing it was a violation of Shabazzs First Amendment rights. Rokita later denied Shabazzs open records request asking for an explanation from Rokita as to why he was banned. Just this month, Rokita filed a motion to dismiss the lawsuit.

Shabazz is editor and publisher ofindypolitics.org, a well-established digital news source for politics in Indiana. He will be joined in a panel discussion at Ball State University this week about Who is a Journalist and Why it Matters, by Indianapolis Star statehouse reporter Kaitlin Lange, Steve Key, executive director and general counsel of the Hoosier State Press Association and Amelia Dieter McClure, the incoming executive director of the Hoosier State Press Association..

The event, sponsored by the College of Communication, Information, and Media, is 7 p.m. Tuesday, March 15, inthe L.A. Pittenger Student Center Forum Room (second floor). The event is free and open to the public.

Our rights, including the right to free speech, dont exist if theyre not defended. And defending basic freedomseven when a group besides our own is in the crosshairsbenefits everyone by making sure the protections of our basic rights remain strong.

Juli A. Metzger is an associate lecturer at the Ball State University School of Journalism and Strategic Communication, and is former president and publisher of The Star Press and executive editor for digital at The Indianapolis Star.

Read the rest here:
Join the Who Is a Journalist? discussion on 1st Amendment rights during Sunshine Week - The Star Press

She cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion or same-sex marriage, Smiths lawyers told the Court.

In defending the law, Colorado argues that Smith can make her views known in any public forum she wants. What she cant do is proclaim that she will discriminate as a business.

Prohibiting companies from displaying what would amount to Straight Couples Only messages is permissible, because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment, Colorado Attorney General Philip Weiser told the Court in the filing as it considered taking the case.

Of course, thats not the point of view from the lawyers representing Smith. Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of and to punish anyone who dares to dissent, Kristen Waggoner, a lawyer with Alliance Defending Freedom, told The New York Times in a statement.

Thats a fine principle. Except for the right, its not really a principle at all.

Heres a simple way to test it. Substitute Florida for Colorado in Waggoners statement. Does anyone for a second believe that Alliance Defending Freedom, Florida Gov. Ron DeSantis (R) or any of the other culture warriors piling on against LGBTQ issues would for a second condemn the Dont Say Gay bill on First Amendment grounds?

Hardly. Alliance Defending Freedom is in fact one of the architects of the rash of anti-LGBTQ measures flooding state legislatures.

The fact is that the only speech the right wants to protect is its own. From its perspective, the First Amendment doesnt extend past the church door. Thats why its so happy to censor not just teachers but books and libraries. The only speech that matters is its own.

Unfortunately, a majority of justices on the Supreme Court are likely to agree. They seem ready to believe that faith supersedes every other right, including the right not to be discriminated against.

The Colorado case will give the justices exactly the case they need to make their religious liberty argument the law of the land. When Anthony Kennedy was still on the Court, the justices punted on another case from Colorado, this one involving a baker who refused to make wedding cakes for same-sex couples.

That ruling, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was narrow, reflecting Kennedys influence. There will be no such restraint next time around. And if there is a challenge to Floridas Dont Say Gay law, dont expect the justices to apply the same standards as they will to the Colorado law.

Read more from the original source:
The right loves First Amendment rights. But only when it applies to them. - LGBTQ Nation

Palin is expected to continue her fight, but given that the judge and jury sided with The Times, her appeal has been characterized as an uphill battle. What different strategies and/or new evidence would her legal team need to introduce to succeed in the court of appeals?

Ironically, a loss may have been exactly what Palin was going for. The judge and jury almost certainly got the result correct under the protective standard of Sullivan, which protects reporting about public figures unless journalists are reckless or intentionally wrong in their reporting. But judges and scholars are increasingly questioning whether Sullivans standard is too protective, and Palin could not have appealed a victory. She needed a loss in order to appeal up the chain of the courts, with hope of getting to the Supreme Court.

If she were to make it to the Supreme Court, how would you characterize Palins chances?

At least two of the current justices, Clarence Thomas and Neil Gorsuch, have indicated that they believe Sullivan should be overturned. Their point is that with the expansion of modern news, Sullivan is too protective of falsehood. I am not sure, however, where Palin could find three more votes to reverse Sullivan. One vulnerable aspect of the law is that the protective standard applies to reporting about any public figure, even those who do not intentionally thrust themselves into the public eye. (Justice Elena Kagan even made such a point in a law review article before she was on the court.) That is not Palin. I think the chance of overturning, or limiting Sullivan is higher in a case in which the plaintiff is more of an I-just-got-caught-up-in-a-public-controversy kind of person.

Some observers and commentators have expressed concern that any Supreme Court change to the Sullivan precedent would have significant detrimental effects on press freedoms. How would you characterize those prospective changes and their respective impact?

Compared to other modern democracies, our standards for libel are much more protective of journalists. There is little doubt that when Sullivan was decided, it was a crucial decision that led to a robust, vibrant journalistic culture. One prominent First Amendment scholar said at the time that Sullivan was occasion for dancing in the streets. But also true is that the Sullivan standard does not deter carelessnessonly recklessness or worseon the part of journalists. When I teach Sullivan, my students and I discuss how a legal rule that under-deters carelessness will increase the amount of carelessness in the system. And more carelessness leads to more falsehoods. In the end, it comes down to a choice between (1) a legal framework that protects journalists at the cost of more falsehoods or (2) a framework that restricts journalists but has fewer falsehoods.

Critics of the outcome have cited that there were no repercussions for James Bennet, who wrongly accused Palin of inciting the murders of six people, and his false accusation was then widely distributed through the papers multiple channels. Why should Sullivan allow this to happen without any penalties for the author? Are the protections for journalists afforded by Sullivan too broad and do they need to be revised?I am of the mind that a good amount of our free speech jurisprudence could use some updating. We in the United States have more protections of speech than any other country at any time in history. I would, for example, rethink the level of constitutional protections provided for corporate speakers, for campaign expenditures, and for violent or injurious speech, among other things. And I do think that reasonable people can disagree about the proper level of protection afforded journalists, especially since journalists now include everyone from reporters at The New York Times to social media influencers on TikTok. We live in a world created in part by Sullivan: a vibrant, pulsing world of news and commentary bombarding us constantlymuch of which contains falsehoods.

Phil Gloudemans | University Communications | March 2022

Excerpt from:
Palin v. the First Amendment: what next? - Boston College

In this episode, I speak with Sahar Aziz, author, and Professor of Law at Rutgers Law School. Sahar shares how she first became interested in her book, The Racial Muslim. She details some historical examples of how the books hypothesis is supported and discusses how far back the ideas go. Sahar also talks about the dichotomy between belief in the First Amendment and how that squares away in modern political discourse with the reality of how Muslims are treated.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wore when delivering dissents from the bench. Its a reminder that even when we arent winning, were still a powerful force to be reckoned with.

Happy listening!

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email herwith any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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Law Professor On The Dichotomy Between The First Amendment And The Reality Of How Muslims Are Treated - Above the Law