Mediaboss Marketing

The current US political environment is often regarded as the most antagonistic and polarized in living memory, and has created landmines for employers. Personal politics have become increasingly controversial, pervading areas that were once safe. Opinions are amplified by social media. Technology has blurred the boundaries of the workplace and the workday by enabling employees to work anywhere anytime. This is evident more than ever in the COVID-19 pandemic.

In this volatile atmosphere, employers are concerned with the effect of employees political discussions and conduct, both at work and off-duty, on their legal liability and business productivity.

Every day in the media, we see situations that keep employers awake at night. Whether it is an off-duty private employee photographed making a controversial gesture to the Presidential motorcade, or a public school teacher suspended in connection with social media posts of his attendance at a political rally that was the precursor to criminal acts by some attendees.

Employers also deal with these issues every day in the workplace. When an employee is offensive or argumentative, it can disrupt business operations, contribute to a difficult working environment, or affect the employers business reputation or client relationships. When this conduct takes on political tones, employers are often apprehensive about how it can and should be handled.

The First Amendment guarantees that the government will not limit the free speech of its citizens. Contrary to popular misconception, the private sector, non-unionized employees cannot assert this constitutional right to freedom of speech in the workplace. The First Amendment only restricts state actors, and therefore public employers. It does not prevent a private employer from imposing restrictions on employee speech or conduct that is not otherwise protected. In certain very specific situations, a private employer that is fulfilling a traditionally public function, or is sufficiently controlled by, or intertwined with, a government agency could also be considered a state actor but these situations are uncommon.

Although a public employee is constitutionally protected by the First Amendment, this is not a free pass to say or do anything without limitation. The employers reasons for restricting employee speech are considered. However, if a public employee is acting as a citizen on a matter of public concern, their speech or conduct is likely to be constitutionally protected, and the public employer must have a compelling reason for restricting it. A public employer must therefore be extremely careful when restricting or disciplining employees for their speech or conduct. Having policies that prohibit social media activity during the workday are helpful. Of course, teachers abilities to hold students hostage to their beliefs during the instructional day remains an area where employers can exert significant control over the teacher.

Private employees may not claim the protection of the First Amendment in the workplace but their speech and conduct are protected, directly or indirectly, by certain federal legislation.

The National Labor Relations Act (NLRA), which applies to almost all employees, union and non-union, protects an employees right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to work together to improve the terms and conditions of their employment. A discussion between employees whether in the workplace, off-duty, or on social media, about working hours, wages, or workplace conditions could therefore be protected by the NLRA. An employee who publicly advocates for improved workplace safety regulations or encourages voting for a political candidate based on their pledge to increase the minimum wage may be deemed protected by the NLRA. Further, a company policy prohibiting all political speech would likely violate the NLRA.

Political speech can encroach on other areas of federal protections such as anti-discrimination legislation and harassment laws. While federal law does not protect an employee from discrimination for political affiliation, it does protect against discrimination or harassment for other reasons including, but not limited to, race, color, religion, national origin, and gender. If an employers actions or policies regarding the conduct of employees affect a protected class of people, they could be deemed discrimination or harassment on one of these grounds and open the employer up to legal action.

The Stored Communications Act (SCA) is also relevant in this area. Dating back to 1986, the SCA regulates the unauthorized disclosure of electronic communications stored with technology providers. Although it predates social media as we know it, the SCA has been applied to restrict an employers right to access or monitor aspects of an employees non-public social media activity. However, a private employer still has broad powers to monitor and restrict any access to personal social media on employer systems.

Some states have enacted statutes to extend the First Amendment rights of private employees or to implement specific protections for political expression. Here in Delaware, employers are prohibited by state statute from any direct or indirect attempt to hinder, control, coerce, or intimidate an employee in the exercise of their right to vote in any general, special or municipal election (15 Del. C. 5162 .)

Delaware has also enacted the Employee/Applicant Protection for Social Media Act to protect an employees private activity on social media. An employer may not demand access to an employees private social media accounts, or that an employee access another persons personal social media accounts (e.g. another employee); force an employee to accept a friend request; or make an employee disable privacy settings on personal social media accounts.

The Delaware Whistleblowers Protection Act provides protection from discrimination and retaliation for employees who make reports to their employer or a public body, participate in investigations and hearings, and/or refuse to commit violations concerning health and safety hazards, serious deviations from financial management or accounting standards, and/or noncompliance or an infractions concerning election campaign and contributions.

It need not be restated that an employer must know and comply with applicable state and federal law or potentially face costly and time-consuming lawsuits. However, legal compliance, though complex, is not the only consideration. How an employer handles instances of employee political speech or conduct can have professional and personal repercussions, however well-intentioned.

Just as an employees actions can be amplified in the current political and digital age, so too can an employers. Even in cases where an employer has acted within the law, their business can be damaged by the publicity that is given to their action, or lack of action, toward employees. Companies can, and have, lost a lot of business because of strategic missteps in this area.

Most employers have no desire to restrict the political expression of their employees and are genuinely motivated to create a workplace that is legally compliant, respectful, and productive. The first step toward this is to create comprehensive company policies that are well communicated and consistently applied to every employee and every situation. Relevant policies include:

Policies should be sufficiently generalized so that they are viewpoint neutral, applying to all political beliefs. But a blanket ban on political speech or conduct will not suffice as it will likely run afoul of the NLRA. Policies should have business justifications such as preventing disruption to business operations and maintaining safety in the workplace. It is often easier to control characteristics of employee speech or conduct rather than its content; e.g. a prohibition on profanity in the workplace or on clothing.

Most importantly, policies should be applied consistently to all employees, regardless of their beliefs or their seniority level. If this is not possible, then there is a problem with the policy.

Whether you are worried about avoiding future issues in the workplace or dealing with a current problem, there are steps you should take to minimize your risk as an employer:

See the original post here:
How to Handle Workplace and Off-Duty Conduct in Politically Charged Times - JD Supra

In the past week, there has been considerable controversy in the University of Wisconsin Law School community surrounding whether an organization opposed to trans-gender rights should be permitted to participate in the Wisconsin Public Interest Interview Program organized by the law school. While the organization adheres to the law schools non-discrimination policy in its hiring, Womens Liberation Front (WLF) embraces positions rejected by many law students, most notably its opposition to anti-discrimination protections based on gender identity.

On January 30, the law school issued a statement reiterating its opposition to discrimination based on gender identity. However, the law school argues that such disagreement does not justify excluding WLF as an employer, which would constitute viewpoint discrimination contrary to the First Amendment. Various student groups, including QLaw and the Student Bar Association, have responded in writing by characterizing WLF as a hate group and protesting the law schools refusal to remove the organization as a prospective employer.

While it may be an unpopular minority opinion within the law school, I agree with Dean Daniel Tokaji and the law school administration's position and handling of the matter. The law school only needs to ensure that no discrimination exists in employer hiring practices. It would be inappropriate for the law school to censor the political activities of prospective employers.

The University of WisconsinMadison is a public institution, and since Gitlow v. New York (1925), the First Amendment to the United States Constitution has extended to the states under the 14th Amendment. Excluding an employer from the recruiting event in question, based solely on political viewpoint, would be constitutionally impermissible under the First Amendment.

The answer to speech that some may find intolerable, I argue, is more speech, not less. Accordingly, the law school and various student groups have voiced their opposition and disagreement with the positions taken by WLF. I genuinely applaud these efforts.

Hateful ideas and bigoted speech (including, in this instance, calls for government-imposed discrimination that current constitutional law forbids) are just as protected under the First Amendment as other ideas and speech, unless they constitute "fighting words," threats of illegal conduct, incitement intended to and likely to produce imminent lawless action, or some other narrow exception not protected by the First Amendment.

Discomfort or distaste is the price that we pay for the constitutional protections of the First Amendment. This should be especially true in law schools given that our study of the law is a time to explore the many aspects of becoming an adult and professional, including developing an independent voice and the willingness to confront authority and different perspectives with respectful debate. Central to the First Amendment is the recognition that dissent by its nature can be messy and uncomfortable. More tolerance, not less, is needed under these circumstances.

Alfred E. Tsai is a JD candidate at the University of Wisconsin-Madison Law School. Do you agree that disagreement and dissent are tenets of open discussion and free expression? Send all comments to opinion@dailycardinal.com.

The Daily Cardinal has been covering the University and Madison community since 1892. Please consider giving today.

View original post here:
Letter to the Editor: Law School Right to Affirm Commitment to Free Expression - Daily Cardinal

Confusion continues amongst federal district courts in the wake ofBarr v. American Association of Political Consultants, Inc.(AAPC), 140 S. Ct. 2335 (2020), the Supreme Court decision that held the TCPAs government-debt exceptioninstituted via a 2015 amendment to the statuteviolated the First Amendment. Courts recently have dealt with the issue of whether plaintiffs can bring TCPA claims for conduct occurring between 2015 and July 2020, the date the unconstitutional amendment was passed and the date the Supreme Court declared the amendment unconstitutional and ordered it severed from the TCPA. The Eastern District of Louisiana said the answer to this question is no.Creasy v. Charter Communications, Inc., 2020 WL 5761117 (E.D. La. Sept. 28, 2020). The district courts for the Southern District of California and the Northern District of Ohio disagree, as we discuss below. Our prior posts on this issue, which we have been following closely, can be foundhere.

InMcCurley et al. v. Royal Sea Cruises, Inc., 2021 WL 288164 (S.D. Cal. Jan. 28, 2021), andLess v. Quest Diagnostics Incorporated, 2021 WL 266548 (N.D. Ohio Jan. 26, 2021), defendants argued that TCPA claims arising during the above-mentioned time period were barred because the TCPA wasentirelyunconstitutional during that period. Both theMcCurleyand theLesscourts disagreed, though the two courts differed in their rationales.

The two courts noted that a majority inAAPChad concluded that the government-debt exception provision was severable from the rest of the statute. TheLesscourt framed the issue as whether severability of the unconstitutional provision should be retroactive to conduct occurring between 2015 and 2020.Less, 2021 WL 266548, at *1. It noted that an unconstitutional statutory amendment is a nullity and void when enacted, and for that reason has no effect on the original statute.Less, 2021 WL 266548, at *1 (quotingAAPC, 140 S. Ct. at 2353 (internal quotation marks omitted)). TheLesscourt concluded that since the 2015 amendment was void at its inception, it had no effect on the pre-2015 text of the statute, and thus because there are not constitutional defects to the pre-2015 text, the statutes enforceability is unaffected by the amendment.Less, 2021 WL 266548, at *1. Accordingly, the court concluded that there was no constitutional defect in Plaintiffs claim even though the claim arose during the 2015-2020 time period.Id.

TheMcCurleycourt reached the same conclusion, but offered slightly different reasoning. It explained that [s]ix members of the [Supreme Court] . . . conclude[d] that Congress ha[d] impermissibly favored debt-collection speech over political and other speech in violation of the First Amendment and [s]even Members of the Court conclude[d] that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute.McCurley, 2021 WL 288164, at *2 (quotingAAPC, 140 S. Ct. at 2343). TheMcCurleycourt noted that Justice Kavanaughwho had voted that the amendment violated the First Amendment and should be severed from the rest of the TCPAexplicitly stated that the Courts decision does not negate the liability of parties who made robocalls covered by the robocall restriction.Id.(quotingAAPC, 140 S. Ct. at 2355 n.12). TheMcCurleycourt reasoned that because plaintiffs case did not involve the collection of government debt, Justice Kavanaughs words were directly applicable such that the TCPA applied to the alleged conduct even though it occurred between 2015 and 2020.Id.at *2, *4.

TheMcCurleycourt rejected defendants contention that Justice Kavanaughs opinion should be ignored as dicta. The court noted the rule that where there is a plurality opinion of the Supreme Court, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds, and that when an opinion issues for the [Supreme] Court, it is not only the result but also those portions of the opinion necessary to that result by which [courts] are bound.Id.(quotingMarks v. United States, 430 U.S. 188, 193 (1977) andSeminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996)). TheMcCurleycourt stated that one single rationale explain[ed] the result joined by seven of the Justices, namely that [a]ll seven agree that the 2015 amendment should be severed and the liability of the parties making robocalls who were not collecting a government debt is not negated.Id.TheMcCurleycourt thus seemingly reasoned that because those justices joined Kavanaugh regarding severability, they joined him in his brief allusions to retroactivity.

Accordingly, theMcCurleycourt reasoned that Justice Kavanaughs statement applied.Id.at *3. In concluding, the court stated that even if Justice Kavanaughs statement was dicta, the statement signals the intent of the Supreme Court and what it would hold in future cases and, as such, may not be cavalierly dismissed by a district court.Id.

Thus, whether framed through the lens of retroactivity or by using the rule regarding lower courts interpretational duties in parsing Supreme Court plurality opinions, some district courts appear to be hesitant to hold that the TCPA was void from 2015 until the Supreme Courts ruling inAAPC.

2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume XI, Number 36

Visit link:
S.D. Calif & N.D. Ohio Disagree with Creasy Ruling - The National Law Review

WASHINGTON, Feb. 1, 2021 /PRNewswire/ --As an organization dedicated to defending civil rights, the Women's Liberation Front (WoLF) commends The University of Wisconsin Law School (UW Law) in its decision to uphold the First Amendment by refusing to discriminate against organizations with diverse viewpoints.

WoLF chose to participate in the school's Public Interest Interview Program because of UW Law's long tradition of public service and the "Law-in-Action" approach to legal education, which teaches future attorneys how to navigate the real-world complexities of the law. This tradition aligns with WoLF's mission to advance and restore the rights of women and girls, combat the global epidemic of male violence, and resist the harms of an expanding sex industry.

In response to a statement by the student organization QLaw, the UW Law statement of support reflects our shared value of defending civil liberties, even when disagreements arise. While publicly funded institutions are legally required to uphold the First Amendment, UW Law's statement demonstrates courage in the face of a toxic intolerance pervasive within University and college campuses.

WoLF's defense of hard-fought single-sex spaces, sports, and services serves the public interest of the women and girls of Wisconsin. As 2020 national polling showed, the majority of Americans in states as different as Idaho and California agree that single-sex spaces for women and girls should be protected. Just last month, a Wisconsin court ordered the Department of Corrections to transfer a man convicted of repeatedly raping his ten-year-old daughter to the women's prison, since he now identifies as a woman. The vulnerable women in state custody, who are disproportionately women of color, will soon be housed in close confinement with a dangerous sex offender.

While organizations like QLaw may find this acceptable, WoLF stands with UW Law in the recognition that public interest organizations have the freedom to speak out against such policies and must not be discriminated against for doing so.

UW Law's commitment to protecting civil liberties affirms why WoLF chose to partner through its Public Interest Interview Program. We look forward to interviewing a diverse range of qualified candidates as well as working with UW Law to build up the next generation of lawyers with a steadfast dedication to freedom for allincluding women.

Natasha ChartWoLF Executive Director

Learn more about WoLF's work:https://www.womensliberationfront.org/our-work

For media inquiries please contact:[emailprotected]

SOURCE Women's Liberation Front

https://www.womensliberationfront.org

Visit link:
Women's Liberation Front Commends The University of Wisconsin Law School for Upholding First Amendment Protections - PRNewswire

When private tech companies moderate speech online, is the government ultimately responsible for their choices? This appears to be the latest argument advanced by those criticizing Section 230 of the Telecommunications Act of 1996sometimes known as Section 230 of the Communications Decency Act. But upon closer scrutiny, this argument breaks down completely.

In a new Wall Street Journal op-ed, Philip Hamburger argues that the government, in working through private companies, is abridging the freedom of speech. Weve long respected Hamburger, a professor at Columbia Law School, as the staunchest critic of overreach by administrative agencies. Just last year, his organization (the New Civil Liberties Alliance) and ours (TechFreedom) filed a joint amicus brief to challenge such abuse. But the path proposed in Hamburgers op-ed would lead to a regime for coercing private companies to carry speech that is hateful or even downright dangerous. The storming of the U.S. Capitol should make clear once and for all why all major tech services ban hate speech, misinformation and talk of violence: Words can have serious consequencesin this case, five deaths, in addition to two subsequent suicides by Capitol police officers.

Hamburger claims that there is little if any federal appellate precedent upholding censorship by the big tech companies. But multiple courts have applied the First Amendment and Section 230 to protect content moderation, including against claims of unfairness or political bias. Hamburgers fundamental error is claiming that Section 230 gives websites a license to censor with impunity. Contrary to this popular misunderstanding, it is the First Amendmentnot Section 230which enables content moderation. Since 1998, the Supreme Court has repeatedly held that digital media enjoy the First Amendment rights as newspapers. When a state tried to impose fairness mandates on newspapers in 1974, forcing them to carry third-party speech, no degree of alleged consolidation of the power to inform the American people and shape public opinion in the newspaper business could persuade the Supreme Court to uphold such mandates. The court has upheld fairness mandates only for one mediumbroadcasting, in 1969and only because the government licenses use of publicly owned airwaves, a form of state action.

Websites have the same constitutional right as newspapers to choose whether or not to carry, publish or withdraw the expression of others. Section 230 did not create or modify that right. The law merely ensures that courts will quickly dismiss lawsuits that would have been dismissed anyway on First Amendment groundsbut with far less hassle, stress and expense. At the scale of the billions of pieces of content posted by users every day, that liability shield is essential to ensure that website owners arent forced to abandon their right to moderate content by a tsunami of meritless but costly litigation.

Hamburger focuses on Section 230(c)(2)(A), which states: No provider or user of an interactive computer service shall be held liable on account of ... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. But nearly all lawsuits based on content moderation are resolved under Section 230(c)(1), which protects websites and users from being held liable as the publisher of information provided by others. In the 1997 Zeran decision, the U.S. Court of Appeals for the Fourth Circuit concluded that this provision barred lawsuits seeking to hold a service provider liable for its exercise of a publishers traditional editorial functionssuch as deciding whether to publish, withdraw, postpone or alter content (emphasis added).

The Trump administration argued that these courts all misread the statute because their interpretation of 230(c)(1) has rendered 230(c)(2)(A) superfluous. But the courts have explained exactly how these two provisions operate differently and complement each other: 230(c)(1) protects websites only if they are not responsible, even in part, for the development of the content at issue. If, for example, they edit that content in ways that contribute to its illegality (say, deleting not in John is not a murderer), they lose their 230(c)(1) protection from suit. Because Congress aimed to remove all potential disincentives to moderate content, it included 230(c)(2)(A) as a belt-and-suspenders protection that would apply even in this situation. Hamburger neglects all of this and never grapples with what it means for 230(c)(1) to protect websites from being treated as the publisher of information created by others.

Hamburger makes another crucial error: He claims Section 230 has privatized censorship because 230(c)(2)(A) makes explicit that it is immunizing companies from liability for speech restrictions that would be unconstitutional if lawmakers themselves imposed them. But in February 2020, the U.S. Court of Appeals for the Ninth Circuit ruled that YouTube was not a state actor and therefore could not possibly have violated the First Amendment rights of the conservative YouTube channel Prager University by flagging some of its videos for restricted mode, which parents, schools and libraries can turn on to limit childrens access to sensitive topics.

Hamburger insists otherwise, alluding to the Supreme Courts 1946 decision in Marsh v. Alabama: The First Amendment protects Americans even in privately owned public forums, such as company towns. But in 2019, Justice Brett Kavanaugh, writing for all five conservative justices, noted that in order to be transformed into a state actor, a private entity must be performing a function that is traditionally and exclusively performed by the government: [M]erely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints. In fact, Marsh has been read very narrowly by the Supreme Court, which has declined to extend its holding on multiple occasions and certainly has never applied it to any media company.

Hamburger also claims that Big Tech companies are akin to common carriers. Hes right that the law ordinarily obliges common carriers to serve all customers on terms that are fair, reasonable and nondiscriminatory. But simply being wildly popular does not transform something into a common carrier service. Common carriage regulation protects consumers by ensuring that services that hold themselves out as serving all comers equally dont turn around and charge higher prices to certain users. Conservatives may claim thats akin to social media services saying theyre politically neutral when pressed by lawmakers at hearings, but the analogy doesnt work. Every social media service makes clear up front that access to the service is contingent on complying with community standards, and the website reserves the discretion to decide how to enforce those standardsas the U.S. Court of Appeals for the Eleventh Circuit noted recently in upholding the dismissal of a lawsuit by far-right personality Laura Loomer over her Twitter ban. In other words, social media are inherently edited services.

Consider the Federal Communications Commissions 2015 Open Internet Order, which classified broadband service as a common carrier service insofar as an internet service provider (ISP) promised connectivity to substantially all Internet endpoints. Kavanaugh, then an appellate judge, objected that this infringed the First Amendment rights of ISPs. Upholding the FCCs net neutrality rules, the U.S. Court of Appeals for the D.C. Circuit explained that the FCCs rules would not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathwayi.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISPs exercise of editorial intervention. Social media services make that abundantly clear. And while consumers reasonably expect that their broadband service will connect them to all lawful content, they also know that social media sites wont let you post everything you want.

Hamburger is on surer footing when commenting on federalism and constitutional originalism: [W]hen a statute regulating speech rests on the power to regulate commerce, there are constitutional dangers, and ambiguities in the statute should be read narrowly. But by now, his mistake should be obvious: Section 230 doesnt regulat[e] speech. In fact, it does the opposite: It says the government wont get involved in online speech and wont provide a means to sue websites for their refusal to host content.

Hamburger doubles down by claiming that Section 230 allows the government to set the censorship agenda. But neither immunity provision imposes any agenda at all; both leave it entirely to websites to decide what content to remove. Section 230(c)(1) does this by protecting all decisions made in the capacity of a publisher. Section 230(c)(2)(A) does this by providing an illustrative list of categories (obscene, lewd, lascivious, filthy, excessively violent, harassing) and then adding the intentionally broad catchall: or otherwise objectionable. Both are coextensive with the First Amendments protection of editorial discretion.

Hamburger argues for a narrow reading of 230(c)(2)(A), which would exclude moderating content for any reason that does not fall into one of those categories or because of its viewpoint. He claims that this will allow state legislatures to adopt civil-rights statutes protecting freedom of speech from the tech companies. And he reminds readers about the dangers of the government co-opting private actors to suppress free speech: Some Southern sheriffs, long ago, used to assure Klansmen that they would face no repercussions for suppressing the speech of civil-rights marchers. This analogy fails for many reasons, especially that those sheriffs flouted laws requiring them to prosecute those Klansmen. That is markedly and obviously different from content moderation, which is protected by the First Amendment.

Ironically, Hamburgers proposal would require the government take the side of those spreading hate and falsehoods online. Under his narrow interpretation of Section 230, the law would not protect the removal of Holocaust denial, use of racial epithets or the vast expanse of speech thatwhile constitutionally protectedisnt anything Hamburger, or any decent person, would allow in his own living room. Nor, for example, would it protect removal of hate speech about Christians or any other religious group. Websites would bear the expense and hassle of fighting lawsuits over moderating content that did not fit squarely into the categories mentioned in 230(c)(2)(A).

Perversely, the law would favor certain kinds of content moderation decisions over others, protecting websites from lawsuits over removing pornography or profanity, but not from litigation over moderating false claims about election results or vaccines or conspiracy theories about, say, Jewish space lasers or Satanist pedophile cannibal cults. But if Hamburgers argument is that Section 230 unconstitutionally encourages private actors to do what the government could not, how does favoring moderation of some types of constitutionally protected speech over others address this complaint? This solution makes sense only if the real criticism isnt of the idea of content moderation, or its constitutionality, but rather that social media platforms arent moderating content according to the critics preferences.

Hamburger is a constitutional originalist, and he invokes the Framers understandings of the First Amendment: Originally, the Constitutions broadest protection for free expression lay in Congresss limited power. But theres nothing remotely originalist about his conclusion. His reading of Section 230 would turn Congress shall make no law... into a way for the government to pressure private media to carry the most odious speech imaginable.

Read more from the original source:
The Wall Street Journal Misreads Section 230 and the First Amendment - Lawfare