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In 2017, the City of Philadelphia took action to address a proven and substantial pay gap for women and minorities. The ordinance targets a known cause of pay inequitysalaries set based on prior salary. In order to prevent discriminatory pay from begetting more discriminatory pay, the ordinance prohibits an employer from asking about a prospective employees wage history (the inquiry provision) and prohibits an employer from relying on wage history at any point in the negotiation over starting pay (the reliance provision). Does this violate the First Amendment?

The Chamber of Commerce filed a lawsuit, Greater Philadelphia Chamber of Commerce v. City of Philadelphia, alleging that the new law infringes on the free speech rights of the Chamber and its members. The federal district court agreed with the Chamber about the inquiry provision and invalidated it, but disagreed about the reliance provision on the grounds that it did not infringe speech. On appeal, however, the Third Circuit held that both provisions are constitutionally valid.

In this column, Ill discuss the ruling, as well as the broader landscape of equal pay law and the efforts some states have made to address longstanding and seemingly intractable inequities.

Before enacting the ordinance, the City of Philadelphia analyzed pay data for women in Pennsylvania. According to the 2015 census, women earned only 79 cents for every dollar earned by similarly situated men. The wage gap is much larger for non-white women68 cents on the dollar for Black women, and 56 cents on the dollar for Latina women. The gap is measurable from the moment women enter the workforce and grows as the years pass.

The data relied on by the City of Philadelphia is consistent with nationwide trends. The wage gap is real, and regression studies prove that some portion of it is attributable to discrimination. There are regional variations, and young women in large cities fare better than all other sub-groups of women. But, on average, women earn only 80 cents for every dollar earned by their male counterparts. The gap occurs at all levels of the occupational spectrum, across all jobs, and grows throughout the life cycle, as percentage-based raises, lateral pay matching, and other factors work to exacerbate existing inequalities. As it does in Pennsylvania, the pay inequity falls most harshly on African American and Latina women.

As one remedy for the disparities the City identified, it passed an ordinance that provides as follows:

It is an unlawful employment practice for an employer

(i) To inquire about a prospective employees wage history, require disclosure of wage history, or condition employment or consideration for an interview or employment on disclosure of wage history, or retaliate against a prospective employee for failing to comply with any wage history inquiry.

(ii) To rely on the wage history of a prospective employee from any current or former employer of the individual in determining the wages for such individual at any stage in the employment process, including the negotiation or drafting of any employment contract, unless such applicant knowingly and willingly disclosed his or her wage history to the employer, employment agency, employee or agent thereof.

(c) For purposes of this Section 9-1131, to inquire shall mean to ask a job applicant in writing or otherwise.

The ordinance imposes civil and criminal penalties for each violation.

Why target prior salary information? It plays a role in perpetuating and exacerbating pay inequities that already exist in the labor force. Existing laws designed to guarantee equal pay have done nothing to minimize the effects of prior salary matching on the wage gap.

At the federal level, the primary tool for combating pay inequity is the Equal Pay Act (EPA) of 1963. The law is simple: It guarantees equal pay for equal work for men and women who do the same job for the same employer. The Equal Pay Act is an important source of protection against pay discrimination, but has some serious limitations. The one relevant here is that an employer can defend against proof of a gender-based pay disparity with any of several affirmative defenses that were written into the law when it was passed.

The most troubling affirmative defense is based on an employers claim that the proven pay disparity is due to a factor other than sex. The idea behind this defense is that even if a man is paid more than a woman for doing the same job, the employer should not be penalized if it can prove that the disparity isnt based on the sex of the employees. This defense has been used to allow pay disparities that cant be justified by any legitimate business reason. One court held, for example, that if a sex-based pay disparity was created through a mistake, it can stand because it can be justified by a factor other than sex (the mistake). That careless employer could conceivably continue paying his female employee less, even after discovering the mistake, because her sex did not create the unjustifiable disparity.

But the bigger problem is the use of this defense to grandfather in pay disparities just because they might have started with another employer. Reliance on prior salary is the chief offender in this regard. The City of Philadelphia was smart to tackle this head on.

Given the existence and persistence of the wage gap, the role of prior salary in setting wages should be minimized if not eliminated entirely. At the federal level, several bills have been introduced that would address and other loopholes in the Equal Pay Act, but none has been passed into law. Some states have begun to fill in the gaps, with bold new equal pay laws. Massachusetts, for example, passed a law that gives employers a list of specific factors thatcanbe taken into account when setting salaries such as education, training, and experience; it also requires that employers bear the burden of showing that such factors are reasonably related to the particular job in question and consistent with business necessity. New York and California have taken similar steps. This approach makes sense because it guides the employer towards relevant criteria that are less likely to perpetuate discriminationand imposes the burden on them to defend any resulting pay disparity.

Massachusetts was the first to target prior salary reliance. A law passed in 2016 does not allow an employer to ask an applicant about salary history (or seek the information directly from a prior employer) until after any offer of employment with compensation has been made to the prospective employee. Several other states have followed suit; about one-third of states currently have some type of ban on requesting or using salary history information from job applicants. Roughly twenty localities also have bans, including the City of Philadelphia, which passed the one challenged in this case.

This case reached the Third Circuit after the district court granted a preliminary injunction on the inquiry provisionpreventing it from taking effect before a trial on the meritsbut denying one on the reliance provision. In this case, the split ruling resulted from different conclusions about the constitutionality of each provision. The District Court concluded that the plaintiff was likely to succeed at trial in showing that the inquiry provision violates the First Amendments protection for free speech, but that the plaintiff was unlikely to prevail on the challenge to the reliance provision.

The Third Circuit dispensed quickly with the appeal on the reliance provision, concluding that the district court was right in its determination that the clause does not infringe on speech. The plaintiff argued that when a prospective employer formulates a proposed salary, it is communicating a message about how much that applicants labor is worth to the employer. But the court was not fooled by this argument. The rule is no different from most employment discrimination laws that prevent employers from making decisions based on an applicants or employees protected traits such as race or sex. No First Amendment analysis was warranted on this claim.

With respect to the inquiry provision, the Third Circuit conducted a First Amendment analysis. The court agreed with the plaintiff that this provision implicates speech because it prevents employers from asking potential applicants specific questions. But the type of speech it regulates is deemed commercial speech, which is granted less protection under the First Amendment. A law that infringes on commercial speechexpression related solely to the economic interests of the speaker and its audienceis reviewed under the intermediate scrutiny standard, which is less exacting than the scrutiny given to laws that infringe on non-commercial speech.

Under intermediate scrutiny, the law can survive only if the means chosen are substantially related to an important governmental interest. The Third Circuit concluded that the ordinance satisfied this standard. The Citys desire to remedy wage discrimination and close the wage gap is an important governmental interestnot even the plaintiff disputed that claim. The only question, then, is whether the means chosenthe ban on inquiring about prior salaryis closely enough related to the end goal. The court concluded that the ban on prior salary inquiries directly advances the Citys interest in pay equity. The city council relied on expert analysis and substantial evidence about the wage gap and its causes. It drew reasonable inferences about the causes of the wage gap and the role played by prior salary information. That body of evidence relied on by the city council was more than sufficient to justify the ban as a means of addressing the wage gap. The City of Philadelphia can thus proceed with enforcing both provisions of its prior salary law.

One frustrating aspect of the wage gap is that most of the improvement occurred in the 1980s, and almost nothing has changed since. Its thus important that governmental entities (and employers themselves) try new things. A ban like the one at issue in this case is a reasonable first step to closing the gap.

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A Win for Equal Pay: The Third Circuit Court of Appeals Upholds A Law Designed to Address Wage Gap - Justia Verdict

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David French spoke about free speech on college campuses.

Owen Stidman/Daily Senior Staffer

David French spoke about free speech on college campuses.

Owen Stidman/Daily Senior Staffer

Owen Stidman/Daily Senior Staffer

David French spoke about free speech on college campuses.

David French spoke about the First Amendment clash on college campuses on Tuesday in Seabury Hall.

French was invited by Northwestern College Republicans. He is an attorney, an Iraq War veteran, and is currently the senior editor at the online political magazine, The Dispatch.

French spoke about the culture of enmity that is arising in the country, particularly on college campuses. He said people are clustering into like-minded enclaves, which leads to the growth of their common viewpoint.

I want people to understand that free speech is fundamentally part of our social compact, he said.

He added that the countrys population is becoming increasingly negatively polarized, as people join political parties due to hatred of the other side rather than support of their own. Despite the decrease in government censorship over the past 20 years, French said, people are more afraid to speak up than ever because the pressure to suppress ones views is coming from their peers as opposed to top-down censorship.

McCormick junior Zachary Kornbluth, secretary of public relations for College Republicans, created advertising for the event. He said in the wake of the Jeff Sessions event, the group thought it would be relevant to bring in a speaker who was knowledgeable on the topic of free speech.

(We hope students will gain) an appreciation of free speech, of hearing other peoples viewpoints, he said. He isnt a supporter of Trump and I know that can kind of be a lightning rod so that may help us get our message across.

In his talk, French said if people see someone being unjustly persecuted, they should stand with the person, even if they have different views. Acts of allyship will create bonds of fellowship that the country currently lacks. When people refuse to defend the rights of others, he said, free speech becomes a power, not a right.

Weinberg sophomore Elizabeth Sperti, a legal studies major, said she gained interesting legal perspectives on the First Amendment.

(I got) an interesting take on the political aspects of free speech and how it functioned on college campuses specifically, she said.

French welcomed questions from the audience and gave anecdotes from his experiences in college and law school, when he found himself in positions where others refused to hear his point of view.

He stressed that although lawyers have won many cases against censorship and speech codes at universities, people have lost a cultural appreciation for free speech.

Free speech has been indispensable in every positive social movement in the history of the United States, and remains indispensable to those who are interested in social change, French said. And that, very fundamentally its one way that a really diverse pluralistic society hangs together is by preserving our mutual civil liberties.

Email: ariannacarpati2023@u.northwestern.edu

Twitter: @ariannacarpati1

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David French gives a talk on free speech - Daily Northwestern

Getting it right is one reliable defense for a free press in todays media world against critics who often base objections and critiques more on political differences than factual error.

However, criticism for getting it wrong is fair game for press skeptics with wrong covering a multitude of alleged sins, as occurred following the Jan. 26 deaths of NBA superstar Kobe Bryant, his daughter and seven others in a helicopter crash.

Even though many times the news outlets themselves quickly corrected errors or apologized, those moves often fell short of placating many on social media.

The BBC apologized quickly Sunday for using video of NBA star LeBron James during a segment on Bryants death a mistake the harkened to an old racist saw that to whites, all black people look alike.

The BBCs quick apology: In tonights coverage of the death of Kobe Bryant on #BBCNewsTen, we mistakenly used pictures of LeBron James in one section of the report, BBC Editor Paul Royall tweeted hours later. We apologize for this human error, which fell below our usual standards.

A slew of online critics some starting an online petition calling for resignation have questioned the sincerity of an MSNBC anchors apology Sunday after she appeared to use the n-word when reporting on Bryants death. Alison Morris later posted on Twitter: Earlier today, while reporting on the tragic news of Kobe Bryants passing, I unfortunately stuttered on air, combining the names of the Knicks and the Lakers to say Nakers. Please know I did not & would NEVER use a racist term. I apologize for the confusion this caused.

Gossip site TMZ was the first to report Bryants death. Los Angeles County Sheriff Alex Villanueva later said, It would be extremely disrespectful to understand that your loved one perished and you learn about it from TMZ. Los Angeles County Undersheriff Tim Murakami tweeted that he understood the pressures related to getting the scoop, but please allow us time to make personal notifications to their loved ones. Its very cold to hear of the loss via media.

Less clear is why The Washington Post placed a national political reporter, Felicia Sonmez, on administrative leave Monday only to reverse the action Tuesday because of tweets that began with a link to a 2016 Daily Beast story titled, Kobe Bryants Disturbing Rape Case: The DNA Evidence, the Accusers Story and the Half-Confession.

It is unclear whether the Posts initial action was in response to many online critics who called the tweet insensitive some issuing death threats, Sonmez said or because one of her tweets on the subject included a screen shot of her work email inbox, showing the names of critics.

By Tuesday, newsroom colleagues were rallying around Sonmez and Post columnist Erik Wemple wrote that the newspapers concerns, per an email from management to Sonmez, were that they didnt pertain to the reporters coverage area and that your behavior on social media is making it harder for others to do their work as Washington Post journalists. In the same column, Sonmez was quoted as saying she was never told the suspension involved the screen grab of her work email box.

Wemple raised questions about the action, noting that if journalists at the Post are prone to suspension for tweeting stories off their beats, the entire newsroom should be on administrative leave.

On Tuesday evening, After conducting an internal review, we have determined that, while we consider Felicias tweets ill-timed, she was not in clear and direct violation of our social media policy, Tracy Grant, managing editor of the Post, said in a statement.

Several news outlets drew a line from an early Fox News report with the incorrect number of those who died to a President Trump tweet repeating the error. ABC News on Wednesday suspended correspondent Matt Gutman after he erroneously reported on Sunday that all four of Bryants daughters were on the helicopter that crashed. Gutman, who also reported strong criticism on social media, apologized: We are in the business of holding people accountable, and I hold myself accountable for a terrible mistake, which I deeply regret.

A common factor here is the desire for a speedy post, reaction or comment, seemingly based on an assumption that readers and viewers and listeners care most about hearing news and seeing reactions now. But what about the values of accuracy, deliberation and thoroughness in an era in which much of the nation considers the news media unreliable, if not deliberately manipulative and unduly provocative?

Yes, many major news operations got it right by waiting for information to be verified. The Los Angeles Times at least took the intermediate approach of acknowledging online the early accounts of Bryants death and advising its readers it still was investigating those reports.

Sonmezs incident is a more challenging call for the Post, for the public and for a free press generally. Certainly, there is the longstanding social pressure and even journalistic guidelines to avoid sensationalism and inflicting undue pain that seems to lean toward avoiding disparaging news of a person immediately after his/her death.

But then, to ignore a womans allegation and resulting legal action in the #MeToo era (or anytime) likely would have resulted in legitimate complaints that journalists were channeling gender bias and hero worship and sanitizing a life. For the record, criminal charges against Bryan were dropped and a civil lawsuit settled out of court.

There is not one perfect way to gather or report news. The tasks are too complex and dependent on facts of each instance to produce cookie-cutter rules. And to large degree, the First Amendment rules out the enforceable codes of conduct that govern professions such as law and medicine.

But having been a young reporter at one time whose on-deadline job all too often was to collect a photo and interview family members of a recently deceased newsworthy person, I know there is a better way, with sensitivity, honesty and an emphasis on getting things right the first time, even when giving audiences an accurate news account.

Those terms sensitivity, honesty, getting it right and accurate are not in the First Amendments 45 words, to be sure. But that doesnt mean those values arent as real or applicable to how a free press should operate.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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INSIDE THE FIRST AMENDMENT: 'Getting it right' - on Kobe Bryant and everything else - Meridian Star

Ten years ago, the Supreme Court ruling in Citizens United unleashed a flood of corporate money into American politics, giving corporations and wealthy donors free rein to influence our elections. On February 6, 2020, the Democracy for All Amendment, a proposed constitutional amendment that would change campaign finance laws and limit the amount of money that can be used to influence elections, will have a public hearing for the first time in the 116th Congress. Learn about the history of Citizens United, previous attempts at passing a constitutional amendment, and other effects of the 2010 ruling by exploring the resources below, all contributed over the years by Rep. Jamie Raskin (Md. 8), a former senior fellow at People For the American Way.

The only effect of Citizens United was to give CEOs of business corporations the power to take unlimited amounts of money from corporate treasuries and spend it advancing or defeating political candidates of their choosing. Its real-world consequence was thus not to expand the political freedom of citizens but to reduce the political power of citizens vis--vis huge corporations with vast fortunes. These corporations, endowed with limited shareholder liability, perpetual life, and other privileges, may now freely engage in motivated political spending to enrich themselves and their executives, leaving workers and other citizens behind.

Read more here.

On March 25, 2015, PFAW Foundation Senior Fellow Jamie Raskin previewed his upcoming report, The Supreme Court in the Citizens United Era, during a member telebriefing. Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon also joined the call to answer questions from members and discuss PFAW efforts to promote fair and just courts. Drew Courtney, former director of communications for PFAW, moderated.

Read more here.

The [proposed] 28th Amendment would reaffirm and restore congressional and state power to regulate campaign finance, but nothing in it could interfere in any way with the First Amendment doctrines of viewpoint and content neutrality as they would apply to such regulations. The 28th Amendment would, for example, empower Congress to restore the aggregate candidate contribution limits that had been in place under FECA for decades and were just invalidated by the Supreme Court in the 5-4 McCutcheon decision.

Read more here.

Thus, if the justification being offered forCitizens United is to allow individual citizens to associate and combine resources in the corporate for to participate more effectively in the political process, as the question posits, then this justification is hollow and specious because all Americans already had that right. Without a rationale for the decision that explains specifically why the managers of for-profit business corporations must have the power to spend corporate treasury resources on political campaigningthe power, that is, to convert economic wealth amassed in business by a corporation into political finance capitalwe are left with the implication that five justices on the Court overturned multiple constitutional precedents [] and struck down dozens of federal and state laws, all simply in order to increase the political power of corporate executives and the candidates they may choose to fund.

Read more here.

Four years ago, in Citizens United v. FEC, the Roberts Court majority bulldozed an essential block of the wall, the one that kept trillions of dollars in corporate treasury wealth from flowing into federal campaigns. In Arizona Free Enterprise Clubs Freedom Club PAC v. Bennett (2011), the Court stifled public debate and destroyed vast new opportunities for political speech by striking down public financing programs that use matching funds to amplify the voices of less affluent candidates competing to be heard over the roar of big wealth. In McCutcheon v. FEC (2014), the Court took a sledgehammer to the aggregate contribution limits, empowering political tycoons and shrewd business investors to max out to every Member of Congress and all their opponents. All of these assaults on political equality and free speech were justified in the name of the First Amendment.

Read more here.

If right-wing America had set out to design a Supreme Court case that combined all of its political fetishes, it could not have done better than to come up with Hobby Lobby Stores Inc. v. Sebelius, a devilishly complex assault on Obamacare, womens health care rights in the workplace, and the embattled idea that the Bill of Rights is for people, not corporations. The outlandish claims of the company involved would not have a prayer except for Citizens United, the miracle gift of 2010 that just keeps giving.

Read more here.

Now, in the bitterly divided Citizens United decision (2010), five Justices on the Roberts Court have held that corporations have the right to spend unlimited sums of money promoting or disparaging political candidates. This decision built on the dangerous fallacy that state-chartered corporations enjoy the same political free speech rights as the people strikes another dangerous blow against popular democracy. It is a blueprint for government of the big corporations, by the big corporations and for the big corporations.

Read more here.

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Former PFAW Senior Fellow and Then-Maryland State Senator Jamie Raskin on a Constitutional Amendment to Citizens United - People For the American Way

A lawsuit stemming from the highly publicized expulsion of a Kansas City library patron from a public event nearly four years ago has drawn to an end after the judge ruled in favor of the lone remaining defendant.

On Thursday, U.S. District Judge Beth Phillips found for an off-duty police detective who arrested Jeremy Rothe-Kushel, a documentary filmmaker from Lawrence who sued the detective and 13 other defendants over the incident, which drew national headlines.

Rothe-Kushel claimed his First and Fourth Amendment rights were violated after he was physically restrained on May 9, 2016, following a lecture at the librarys Plaza branch by American diplomat and former Middle East envoy Dennis Ross.

The lecture, about President Harry Truman's recognition of the state of Israel, was organized by the Jewish Community Foundation and the Truman Library Institute. Following the April 2014 shootings that left three people dead at the Jewish Community Center and Village Shalom in Overland Park, there was heightened security at the event.

During a planned question-and-answer session after the lecture, Rothe-Kushel stepped up to the microphone and asked Ross a long, rambling question alluding to what he said was a history of state-sponsored terrorism by Israel and the United States.

Ross responded and Rothe-Kushel began arguing with him. At that point, the man in charge of security for the event, Blair Hawkins, began to physically remove Rothe-Kushel from the microphone. Hawkins was director of security for the Jewish Federation of Greater Kansas City, which had hired him following the 2014 shootings.

Video of the incident shows Hawkins grabbing Rothe-Kushels arm, telling him Youre done and attempting to remove him from the mic. Rothe-Kushel is seen yelling even as a second person approaches the mic to ask a question.

Rothe-Kushel was later arrested in the lobby after an off-duty officer hired for the event asked for his identification and he refused to give it. The librarys director of programming and marketing, Steven Woolfolk, was also arrested after he sought to intervene and prevent Rothe-Kushels removal.

Woolfolk was later charged with obstruction, interfering with an arrest and assaulting a police officer. After a day-long trial in September 2017, a Kansas City Municipal Court judge acquitted him of all three charges.

The actions taken by the officers sparked outrage among civil libertarians and were condemned by the librarys then-executive director, R. Crosby Kemper III, who said the officers had overreacted.

Rothe-Kushels lawsuit named 14 defendants, including officials of the Jewish Community Foundation and the Truman Library Institute; the off-duty policemen involved in the incident; Kansas City Chief of Police Rick Smith; and members of the Kansas City Board of Police Commissioners, including then-Kansas City Mayor Sly James.

Rothe-Kushel later voluntarily dismissed his claims against the members of the police board and the off-duty officers, except for the detective who arrested him, Brent Parsons.

The claims against officials of the Jewish Community Foundation and Truman Library Institute had been dismissed earlier in the case although its not clear if they were dismissed because the organizations reached settlements with Rothe-Kushel or because of the merits of their legal defenses.

I can say that matters as to other defendants were concluded, said Arthur Benson, one of Rothe-Kushels attorneys. Thats all I can say.

Officials of the Jewish Community Foundation and Truman Library declined to comment or could not be reached for comment.

In her 12-page ruling Thursday in favor of Parsons, Judge Phillips found that Parsons had probable cause to arrest Rothe-Kushel for trespassing and for refusing to provide his identification.

She also found that while Rothe-Kushel had a First Amendment right to ask Ross questions, that right was not limitless: (H)e could not ask so many questions that other audience members were deprived of the opportunity, and he had no right to argue with Ambassador Ross (and no right to expect Ambassador Ross to engage in such an argument).

Finally, Phillips found against Rothe-Kushel on his claims of conspiracy to violate his civil rights, false arrest and conspiracy under state law.

Rothe-Kushel, reached by email, declined to say whether he had reached settlements with any of the defendants.

Fred Slough, another attorney representing Rothe-Kushel, said it was a serious wrong for Rothe-Kushel to have been removed and arrested. He said Rothe-Kushel would have complied with a request to leave the library.

Instead he was grabbed and manhandled in the middle of an exchange with the Ambassador that was not a disturbance, except in the sense that some in the audience audibly disagreed with its content, Slough said via email. The law does not allow such a heckler's veto of free speech.

Editor's note: This story was updated with Rothe-Kushel's comment.

Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.

Originally posted here:
Free-Speech Case Over Patron's Arrest At The Kansas City Public Library Finally Comes To An End - KCUR