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Over the past year, employers have had to grapple with seismicsocial, cultural, and political developments impacting profoundlyhow they do business. From a worldwide pandemic severely affectingglobal communities, markets and workplaces, to the murder of GeorgeFloyd catapulting racial and social justice issues to internationalprominence, to a tumultuous presidential election and its resultingfallout, to the brutal attacks on the Asian American and PacificIslander (AAPI) community, there has been a fundamental shift inhow employers interact with the world around them and manage theirever-changing workforces.

How a company responds or fails to respond tosocial justice and political issues can impact employee morale,consumer satisfaction, community perception, a company'srelationships with its investors and its financial health. Andwhile employees have always brought their experiences andinfluences to work, increased polarization and a lightning-fastnews cycle have seen businesses not only scrambling to adapt theirpolicies and practices to respond to new realities, but alsoproactively making commitments to issues and causes important totheir leadership, their employees, and the communities theyserve.

In addition to concerns surrounding corporate responsibility andsatisfying employees, consumers, and the public at large, employersfind themselves having to respond to a wide range of on- andoff-duty employee conduct, including:

While traversing these issues, employers need to navigate apatchwork of federal, state, and local employment laws, includingbut not limited to:

Amid this backdrop, there are a number of steps employers cantake to prepare their workplaces for the effect of social andpolitical issues and respond to developments as they occur,including:

This paper reviews the relevant legal backdrop and aims to offerpractical guidance for employers as they navigate these sensitiveand pressing issues.

Numerous types of off-duty conduct could have workplaceimplications, including posting on social media or participating indemonstrations and counter demonstrations. Other forms of protestsalso could be relevant, such as taking a knee during the nationalanthem. Due to the mutual accessibility of social media accountsand that many co-workers are linked on the platforms, employeesoften may know the political and social views and activities oftheir co-workers, supervisors and subordinates, and this knowledgecan create friction that seeps into the workplace. Employees maylodge complaints with their employers about posts or other conductthey find particularly upsetting, including (subjectively orobjectively) politically, racially, or sexually offensivestatements or images. If the employer takes no action, employeesmay conclude the employer condones the off-duty conduct andvice versa. Further, social media posts that can be offensive basedon race, gender, LGBTQA+ status or other protected categories maydemonstrate discriminatory animus if the employee is ever accusedof discrimination or harassment in a lawsuit. An employer shouldknow its obligations, limitations, and options in responding tosuch complaints.

1. First Amendment

For many people, the first thing that pops to mind whenconsidering employee social media posts or public protests is theFirst Amendment of the U.S. Constitution. The First Amendmentprovides that "Congress shall make no law . . . abridging thefreedom of speech, or of the press; or the right of the peoplepeaceably to assemble." While the First Amendment secures manyessential rights for Americans, it does not apply to privateemployers. Rather, the Bill of Rights, which includes the Firstthrough the Tenth Amendments, restricts a government's abilityto interfere with individual liberties, such as freedom of speech,privacy, and religious exercise. It does not restrain privatecitizens or organizations. Thus, while private employees have aFirst Amendment right to free speech and to engage in peacefulpublic protest without government infringement, the Constitutiondoes not protect them from discipline by their privateemployer.1

In contrast, public employers risk running afoul of the FirstAmendment if they discipline employees for exercising their rightsto free speech or peaceful public protest.

1 See Carter v. Transport Workers Union of Am. Local556, 353 F. Supp. 3d 556, 576 (N.D. Tex. 2019) (grantingmotion to dismiss First Amendment-based retaliation claim againstairline company). Notably, the state of Connecticut extends theFirst Amendment protection of free speech to the employees ofprivate employers.

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The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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By Rick Santorum

Republicans have been understandably irate about content moderation decisions made by some social media platforms. Some complain that social media is not respecting their free speech rights, although the First Amendment prohibits government from forcing social media to carry speech they dont want to carry. Now, Justice Clarence Thomas has aired his own views on First Amendment protections and mused about treating social media as common carriers and public accommodations.

Some conservatives see Thomas words as a recipe to stop social media platforms from moderating user posts on their services. I share conservative concerns about political bias, but lets examine what Justice Thomas actually said and then consider what a nondiscrimination mandate would really mean for conservatives.

Despite what some commentators suggest, Justice Thomas never said that social media platforms are common carriers or public accommodations. He noted similarities between some digital platforms and common carriers or places of public accommodation and said those similarities may give policymakers leeway to regulate. But Thomas was careful not to say that social media platforms actually fall into these categories.

Thomas has good reason to be careful about that. Businesses that are common carriers must provide their services to the public without discretion about who they serve and what customers are allowed to say. However, courts have clarified that the common carrier label describes not the legal obligations of a company but how the company does business.

Unlike common carriers such as your mobile phone service provider, social media businesses have always engaged in discretion about content they allow on their platforms. It is central to a business model whose aim is to attract users and advertisers that drive revenue. One avenue of competition is what content is moderated: Some sites do not allow expletives or pornography; others moderate what they view as medical misinformation or bullying. Far from offering their services without discriminating, social media websites like Facebook spend billions of dollars and dedicate tens of thousands of workers to determining whether content violates their community standards.

Now, some Republicans are citing Thomass words to force social media to allow any speech thats permitted under the First Amendment. Sure, that would stop social media from moderating user content in a politically biased way. But it would also leave up lots of content that is positively awful, making social media far more objectionable to users and advertisers. Its a wide-open faucet for the worst user content, including bigotry, harassment, profanity, and pornographic images and videos.

While some say parental controls and safe-search might filter this filth, few users trust these filters to protect their children from the worst that Internet users come up with. The reason is math -- over 100 billion pieces of content are posted by users every single day. Offensive posts will be missed and many inoffensive images would be inadvertently flagged by the algorithms weeding through this overwhelming amount of content.

Much content Americans consider unsafe or offensive is a matter of context, and that further exacerbates the problem. Racial terms are not always racist and bullying is often near impossible to identify unless you are the one being bullied.

Common carrier regulation applied to social media will lead to a dangerous and tortuous online experience that will do real harm to millions of children and families. That is a price that most conservatives would be hard-pressed to pay to reduce political bias in content moderation.

The fact is that, despite its flaws, the Internet has empowered conservative speech more than just about any other development in the past century. Todays conservatives have forgotten that liberal media outlets used to run only an occasional column or letter from conservative elected officials or community leaders. Now, social media allows for millions of conservatives to directly share news and views with millions of Americans.

However, if the largest social media platforms are forced to allow any user post, they will become a cesspool of unfiltered filth and hatred that would make todays social media look like Sunday morning television. Most Americans will stop using the large social media sites, and advertisers will stop paying for ads.

Sure, there will still be smaller sites like Parler and Rumble that will escape common carrier regulation, but those platforms cater to the followers of Donald Trump. Without Facebook, YouTube and Twitter, Republicans wont reach large social media audiences to persuade moderate and independent voters not present on conservative social media alternatives. You know, the voters who decide elections in swing states, suburban districts, and nationally.

Conservatives should be vocal anytime social media is biased against our news and views. But we should also be careful not to throw the baby out with the bathwater. Thomass opinion certainly raises important questions, but conservatives should be careful about embracing a nondiscrimination mandate for social media. If we do, we will almost certainly end up creating an internet that is worse for everyone, especially for conservatives.

Rick Santorum is a former U.S. Senator from Pennsylvania who ran for the presidency in 2012 and 2016 in the Republican primarries.

Read more:
What Justice Thomas really said about regulating social media | Opinion - pennlive.com

ROCKFORD Demonstrators will conduct their weeklyprotests of racial injustice at Rockford City Market again this year even as an expanded market footprint will make it more difficult to deliver their message to visitors.

Gone this year are dedicated protest zones that officials say demonstrators ignored last year. And the streets where protesters marched a year ago will now be inside an expanded City Market areafilled with vendors, displaysand activities.

Market and city officials say the demonstrators' aggressive tactics are meant to agitate, disturb and disrupt a market where about 55 vendors many of them women and minorities plan to work in an effort to establish or expand businesses. In addition to the pandemic, officials blame the demonstrators and their clashes with police last summer for lowmarket attendance in 2020.

Leslie Rolfe, who has been at the forefront of dozens of marches and orchestrated a 224-day and counting continuing protest outside Rockford City Hall,says protesters didnot aimto disrupt the market. But he said they ultimately became disruptive because of the response of market organizers to their presence and heavy-handedpolice tactics which he says were cheered by some "racist" onlookers.

More: Rockford City Market adds new vendors, activities and larger area for its 12th season

Rolfe said his goal is to force residents to confront issues of police brutality, massincarceration and racial discrimination.

"Wearen'tthepeoplewho arelimitingthe people coming inand out of City Market," Rolfe said."The 'City Market Protest' isn'tcalled the 'City Market Boycott'or 'Sabotage City Market.'

"Even last year, when we were on the crosswalk, anybodygoingintoCity Market could go and support thevendors or support the entrepreneurs and people trying to make new businesses. It's completely within your abilities to walk into City Market, find the vendor you were looking for, get yourself something to eat, pay themmoney andfind out if you like the food."

Rolfe saidthe City Market footprint was expanded this year in an effort to quiet protesters, pushing them to the fringes of the event.

But officials say the expanded footprint approved by Rockford City Council was designed to accommodate social distancing amid the pandemic. The expansion was originally sought months ago at a time when they could not know whatreopening phase Illinois and Rockford would be in.

It is also meant to better include nearby businesses in the City Market, activating the areas around them and creating a street festival atmosphere.

Joe Marino Park, once designated a protest area, is now set aside for Rockford Park District programs.

As State Street becomes part of the market grounds from North Wyman Street to North First Street, the areas where protesters once marched will be filled withvendors, activities, large displays and special events, even stretching across the bridge.

Madison Street will be lined with outdoor caf style seating along withfood and drink vendors.

Part music festival, part farmer's market and part retail event, the Rock River Development Partnership'sCity Market was a surprise hit when it opened more than a decade ago.

It drew thousands of people and breathed new life into what was once a desolate downtown. It helped attract new downtown residents, spawned new businesses and created a weekly summerritual in the heart of the city.

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City Market drewa record 111,160 visits in 2019. Attendance dropped to a quarter of that last year amid the pandemic and at-times confrontational demonstrations.

"Our goal has always been to drive traffic to the surrounding businesses," said Cathy McDermott, executive director of the Rock River Development Partnership. "That has happened quite well, I think, but having them actually be out on the streets andsidewalks, part of the outdoor festival atmosphere, was really our goal this year."

Rockford Mayor Tom McNamara said a protest zone was established last season to safely accommodate demonstrators, but "they chose not to utilize it."

McNamara says after the brutal slaying of George Floyd in Minneapolis police custody, the city has worked to institute reforms to protect the rights of residents, prevent excessive uses of force, treat those in mental health crisis with compassion and hold police and residents accountable.

Read this: Rockford considers $3.4 million for police body cameras

McNamara said protesters who seemingly began by fightingfor changenow seem to "have placed a greater emphasis on being disruptive and are primarily concerned with local celebrity and self-attention."

"They continue to harass and even threaten employees at the city when the employees are entering and exiting City Hall or when they are just out doing their jobs, like cleaning up garbage, and their vulgar language theyve placed on the sidewalks and the City Hall building," McNamara said."Theyve followed staff and surrounded their vehicles. They continue to block the sidewalks, which is not in compliance with the Americans with Disabilities Act.They continue to place items on light poles which is clearly against our ordinance, even when we have provided them an alternative location for memorials.They shout into bullhorns and blare sirens at all hours of the day."

Related: 6 ways Rockford could reform policing

During a May 7 news conference to introduce the 12th season of the City Market and announce the expanded footprint, Rolfebanged on the windows outside the Indoor City Market and shouted about recent incidents of what he views as police brutality.

Authorities arrested Rolfe Thursday nearly a week later charging him with misdemeanor disorderly conduct. They say Rolfe followed, harassed and shouted obscenities at a Rockford city official after the news conference.

Deputy Chief Kurt Whisenand said the Rockford Police Department will protect anyone exercising theirFirst Amendment rights of free speech and assembly. But Whisenand said police must intervene if demonstrations endanger the public or violate the law.

Whisenand said police will work to accommodate protesters, allowing them space to deliver their message within "sight and sound" of the City Market. Since the City Market has a city-issued permit however, what transpires inside the footprint will be up to City Market organizers almost as if it were onprivate property.

"We always err on the side of the First Amendment," Whisenand said."We 100% are there to protect anybodys First Amendment rights. Thereare limits to that.Youcan'tcreate a publicsafetyrisk."

Jeff Kolkey: jkolkey@rrstar.com; @jeffkolkey

Continued here:
Protesters: Changes to the Rockford City Market are meant to stymie their message - Rockford Register Star

On May 7, Florida Gov. Ron DeSantis (R) signed a billSenate Bill 1890to set $3,000 limits on campaign contributions to committees in support of or opposition to ballot initiatives until the secretary of state certifies the measure for the ballot and assigns it a ballot position and number designation. The bill was designed to lift the contribution limits after a measure is put on the ballot.

On April 14, the Florida Senate passed the bill 23-17. Twenty-three Republicans were in favor, and 16 Democrats and one Republican were opposed. On April 26, the Florida House of Representatives passed the bill 75-40. All 75 voting Republicans were in favor, and all 40 voting Democrats were opposed.

In Florida, initiative proponents must collect signatures equal to 8% of votes cast at the previous presidential election. The requirement to put an initiative on the 2022 ballot is 891,589 valid signatures. Florida also has a signature distribution requirement, which requires that signatures equaling at least 8% of the district-wide vote in the last presidential election be collected from at least half (14) of the states 27 congressional districts. In 2020, four initiatives qualified for the ballot in Florida. The petition drives to put those measures on the ballot cost an average of $6.7 million each, ranging from $4 million to $8.8 million. From 2016 through 2020, the average total cost of an initiative petition drive that successfully qualified an initiative for the ballot in Florida was about $5.1 million.

Nationwide, the average total cost of a successful initiative petition drive was $2.1 million in 2020. It was $1.2 million in 2018.

In Florida, the petition drives that put the four initiatives that were on the ballot in 2020 were each funded by one donor or entities that were all associated.

On May 8, the ACLU of Florida filed a lawsuit in the U.S. District Court for the Northern District of Florida arguing that SB 1890 violates First Amendment freedom of speech rights and that the state has no significant state or public interest in curtailing debate and discussion of a ballot measure. The lawsuit cited previous U.S. Supreme Court rulings that overturned limitations on campaign contributions for ballot measure committees, including Citizens Against Rent Control v. City of Berkeley (1981), First National Bank of Boston v. Bellotti (1978), and Buckley v. Valeo (1976). The U.S. Supreme Court has ruled in previous cases that political contributions constitute freedom of speech and cannot be limited without a compelling state interest, such as to prevent corruption and bribery. The court has also ruled that referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections simply is not present in a popular vote on a public issue.

As of May 3, 2021, Ballotpedia had tracked 197 legislative proposals concerning ballot initiatives, veto referendums, referrals, local ballot measures, and recall in 39 states in 2021 legislative sessions. At least 18 had been approved, and 20 had been defeated or had died.

Notable topics among bills introduced in 2021 sessions include supermajority requirement increases, signature requirement and distribution requirement increases, single-subject rules, pay-per-signature bans, residency requirements and other circulator restrictions, fiscal impact statement and funding source requirements, and ballot measure campaign contribution restrictions.

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Florida governor signs bill limiting contributions to ballot initiative petition drive campaigns to $3000 - Ballotpedia News

Photograph by Danna Singer / ACLU / Reuters

In 2017, Brandi Levy, a junior-varsity cheerleader at Mahanoy Area High School, in Pennsylvania, was denied a spot on the schools varsity squad. That weekend,off campus, Levy posted a furious, profanity-filled photo and message about the decision on Snapchat. A student who saw the message showed a screenshot to her motherthe cheer coach. Levy was barred from cheerleading for the rest of the year. The A.C.L.U. helped Levys parents file suit against the school in federal court, claiming that Brandis First Amendment right to free speech had been curtailed. Last week, four years after that pivotal snap, the U.S. Supreme Court heard oral arguments in the case of Mahanoy Area School District v. B.L. Jeannie Suk Gersenjoins Dorothy Wickenden to discuss this contentious case and what it means for free speech in the digital age.

Read the original here:
A High-School Cheerleader, the Supreme Court, and the First Amendment - The New Yorker