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Posts Tagged ‘First Amendment’

Keeping Politics Out of the Office: First Amendment Considerations for Public Employers In the Age of Social Media

Posted on: October 13th, 2020

By: Taryn Haumann

As we approach another hotly contested presidential election, Americans are frequently turning to social media to share their political ideologies or engage in debates. In the weeks leading up to the election, as well as the days immediately following, employers could see conflict arise in the workplace relating to their employees’ postings on social media. For public employers, the decision on how to handle these situations becomes even more complicated due to the employees’ First Amendment protections.

On October 6, 2020, a Sixth Circuit three-judge panel in Bennett v. Metropolitan Government of Nashville, No. 19-5818, weighed in on this scenario. In Bennett, the court held that a public employee’s use of a racial slur when discussing politics on Facebook was not sufficiently protected by the First Amendment, and the speech did not outweigh the government agency’s interest in having an efficient workplace and effectively serving the public.

The court’s ruling overturned the U.S. District Court’s determination that a 911 operator’s use of a racial slur when discussing the groups of voters who supported Donald Trump was protected political speech that outweighed the government’s interest in policing her conduct. Following the 2016 presidential election, the employee posted a response to a comment on her public Facebook page celebrating Trump’s victory. The employee, who was White, used a racist slur historically used to demean Black people, while also stating that “rednecks” and “[L]atinos” voted for Trump. Following the employee’s comments, her coworkers and members of the public complained to the Metropolitan Government of Nashville (“Nashville”).  Following paid administrative leave and a due process hearing, the employee was terminated, and she subsequently sued Nashville for retaliation under the First Amendment. 

The Sixth Circuit applied the balancing test outlined by the United States Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968) to determine whether the employee’s interests in free speech outweighed the government employer’s interest in efficiency in the workplace. In deciding the employee’s comment was not sufficiently protected speech, the court considered the following factors: whether the statement disrupts harmony among co-workers or impairs supervisory discipline, has a determinantal impact on close working relationships, impedes the performance of the employee’s duties or the workplace’s general operation, or undermines the employer’s mission.

In short, the employee’s derogatory comments caused an uproar in the workplace, and the district court failed to fully consider the importance of harmonious relationships in the workplace. The employee’s post caused “substantial” disruption and increased stress levels across the entire agency. The employer even brought in counselors to address the tension. The court recognized the employer had an undeniable interest in maintaining an effective workplace, promoting employee harmony, and efficiently serving the public, which ultimately outweighed the employee’s interest in using racially offensive language in a Facebook comment.

Whether you are a public or private employer, it is important to remind your employees to be cognizant of what they post on social media—particularly if their profiles are public. For employers, one of the best tools is to include a social media policy in your employee handbook that adequately addresses the complexities of social media in the modern workplace. For instance, it can be helpful for an employee to decline to identify herself as an employee of your organization, or for the employee to post a “disclaimer” that her opinions or views expressed are those of the employee and not the employer. However, as seen in Bennett, certain postings can still cause major disruption in the workplace and negatively reflect on the employer.

If you have questions about an employee’s social media presence, or would like to discuss implementing social media policies at your place of business, please contact Taryn Haumann directly at [email protected].

Insurance Requirements and First Amendment Rights of Freedom of Speech and Assembly

Posted on: July 6th, 2020

By: Jessi Samford and Bill Linkous

There is no doubt that the world as we know it has changed dramatically this year, and the protests and marches amidst the global pandemic have been in the forefront of recent news. While some protests have focused on broader awareness campaigns of injustice and inequality, others are geared toward current events that stir up longstanding tensions in the United States. There have even been a few protests about the pandemic itself. 

In recent history, some states have imposed insurance requirements on groups planning rallies or protests at certain locations, which presents an important constitutional question which should be considered carefully now, more than ever, in our country’s divisive climate. Can a government make and enforce a rule requiring that insurance be provided to cover risk of injury to protest participants or bystanders that that does not violate the First Amendment of the U.S. Constitution? 

Iowa, for example, faced criticism three years ago for having a one-size-fits-all rule that any organizer of such an event at the state’s capitol had to obtain a liability policy of at least $1 million. The blanket rule on its face made no exception based on the size or length of the event, but it was not always enforced. One organizer regularly provided proof of insurance while others who could not afford the premiums proceeded anyway at the capitol as planned and without interference.

Special event insurance is not a new concept to the insurance industry, as many carriers are in the market to underwrite risks for short-term gatherings of all kinds—from an outdoor car show, farmers market, or festival to an indoor convention or even wedding festivities. The insurance would likely be based off commercial general liability (CGL) policy forms, which mainly address risks against bodily injury or property damage claims by others. In the context of protests on public property, it would likely be the venue organizers who would be required to supply the policy and proof thereof to obtain a permit for the special event, assembly, or protest.

What is unique about this concept in the context of a protest is that it would be held in a public space and a governmental entity would need to be cognizant of the First Amendment implications of requiring the protest organizer(s) to pay insurance premiums to exercise First Amendment rights to free speech and peaceable assembly.

The requirement to obtain a permit and pay a fee, such as for insurance, before authority is given for public speaking, parades, or assemblies in traditional public forums is generally considered by courts to be a prior restraint on speech. Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992). The term “prior restraint” is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur, including injunctions and restraining orders. Alexander v. United States, 509 U.S. 544, 550 (1993).  Although there is a “heavy presumption” against the validity of a prior restraint, the Supreme Court has recognized that in order to regulate competing uses of public forums, government may impose a permit requirement on those wishing to hold a march, parade, or rally.  Cox v. New Hampshire, 312 U.S. 569, 574-576 (1941). Such a scheme, however, must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official. Freedman v. Maryland, 380 U.S. 51, 56 (1965). Moreover, a permitting scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.  United States v. Grace, 461 U.S. 171, 177 (1983).

A local government wishing to impose a permit and insurance requirement for public gatherings in a public forum should follow the guidelines laid down by the U.S. Supreme Court. First, neither the imposition of an insurance requirement nor the amount of insurance required can be based in any way on the content of any anticipated message. For instance, the amount of insurance required cannot be tied to the expected backlash that the message will cause among citizens. Second, the permit/insurance requirement cannot give overly broad discretion to the official who is designated to issue the permit. Only objective criteria should be used.  Perhaps the insurance requirement would kick in once a threshold number of participants in the gathering is reached or when the gathering is expected to last for a threshold period of time, and the level of insurance required could increase incrementally as the number of participants (or the length of the gathering) increases. Third, the insurance/permit regulation should require that the permit be automatically issued within a short period of time once the application is filed if the permit is not denied by the government official. Finally, there should be a quick and efficient method for appeal of the insurance requirement and permit issuance decision, because a system of prior restraint avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975).

As local governments consider the impact that public assemblies can have on counties and cities today, and the costs that may arise due to such assemblies, we can expect more local governments to explore the potential for a special event insurance requirement for such events. As they consider such requirements, it will be important for them to consider how they go about doing so to comply with constitutional mandates.

If you have questions or would like more information, please contact Jessi Samford at [email protected] or Bill Linkous at [email protected].

Section 1983 First Amendment Retaliation by Litigation: SOL without PC

Posted on: January 14th, 2020

By: Brent Bean

“When angry count to ten before you speak.  If very angry, count to one hundred.”  – Thomas Jefferson

In a case of first impression in the Eleventh Circuit, the Court held that in a Section 1983 First Amendment retaliation claim premised on the filing of a civil lawsuit, probable cause will generally defeat the claim as a matter of law.  See DeMartini v. Town of Gulf Stream, Case No. 17-14177 (11th Cir., Nov. 21, 2019).

A Section 1983 First Amendment retaliation claim requires the plaintiff to show (1) she engaged in protected speech, (2) the government’s retaliatory conduct adversely affected that speech and (3) a causal link exists between the conduct and the adverse effect.  As the Supreme Court observed, retaliatory animus is “easy to allege and hard to disprove.”  Nieves v. Bartlett, 587 U.S. ___, ___, 139 S.Ct. 1715, 1725, (2019).

There are two accepted methods of showing causation.  The first, typically used in the employment setting, is whether the retaliatory motivation was the but-for cause of the adverse action.  If not, or if the government would have taken the same action regardless of retaliatory animus, the defendant is not liable.  The second, typically used when the government uses the legal system to arrest or prosecute a plaintiff, is to ask whether there was probable cause for the arrest or prosecution.  If so, this will destroy the casual link.

In DeMartini, the plaintiff sued the Town of Gulf Stream, Florida (population 2000), for filing a civil RICO action against DeMartini and her business, CAFI.  The Town filed the lawsuit because CAFI had made thousands of public records requests designed to overwhelm the small town’s staff and lead to the recovery of attorney’s fees for non-compliance.

In the face of these requests, the Town received a sworn statement from an insider at CAFI attesting the requests were bogus and designed to lead to monetary recovery. The Town then engaged outside counsel to advise on merits of a lawsuit to stop the abuse.  The Town filed the RICO case, which was dismissed because the Town could show no predicate act.

DeMartini then sued the Town under Section 1983 for First Amendment retaliation, claiming the RICO lawsuit was unlawful retaliation designed to silence her right to seek redress, a First Amendment right.  She claimed public statements made at Town meetings confirmed the retaliatory animus for the lawsuit and the RICO lawsuit had no merit, as it was dismissed and affirmed on appeal.

The Eleventh Circuit considered whether a plaintiff asserting a claim for Section 1983 First Amendment retaliation based on the filing of a civil lawsuit is required to plead and prove an absence of probable cause for the civil lawsuit and whether the Town in fact lacked such probable cause.

The Court held that while the RICO lawsuit was ultimately dismissed, it was not without probable cause because the Town had sworn facts from an insider and had hired a lawyer who advised them on the law. So, the Court concluded the Town had a reasonable belief in the validity of the RICO claim.  The Court then held for retaliatory claims based on a civil lawsuit DeMartini had to show an absence of probable cause in the filing of the RICO lawsuit, which DeMartini could not do.

Governments seeking to take affirmative steps through civil litigation will be one-hundred times better served to first confirm their claims are supported by probable cause prior to filing a civil lawsuit.

If you have any questions or would like more information, please contact Brent Bean at [email protected].

Can Silence Be Bought as Part of a Settlement of a Use of Force Claim?

Posted on: July 30th, 2019

By: Jake Loken

Can silence be bought, especially of those who claim excessive use of force? The City of Baltimore thought so, until the Fourth Circuit Court of Appeals said otherwise.

In Overbey v. Mayor of Balt., No. 17-2444 (4th Cir.), decided July 11, 2019, the Fourth Circuit found that public policy and First Amendment rights outweighed the interests of the City of Baltimore in enforcing non-disparagement clauses found in the City’s settlement agreements, which settled use of force claims.

The Fourth Circuit explained that when an individual brought claims of excessive force, the City of Baltimore would only settle the claims if the individual agreed to a non-disparagement clause, which constitutes a waiver of the individuals First Amendment rights, as it prevents that individual from speaking about their claims, the facts of their claims, or the settlement process itself. If the individual did speak out, the non-disparagement clause would be breached, and the individual would be required to return half of the settlement amount back to the City.

Usually, individuals may waive their constitutional rights as part of a settlement, but only if “the interest in enforcing the waiver is not outweighed by a relevant public policy that would be harmed by enforcement.” But in the case of non-disparagement clauses, where individuals’ First Amendment rights are waived regarding speaking out about alleged excessive, the Fourth Circuit said such clauses were unenforceable. The Fourth Circuit explained that “unpleasantly sharp attacks on government and public officials can play a valuable role in civil life and therefore enjoy the protection of the First Amendment. Enforcing a waiver of First Amendment rights for the very purpose of insulating public officials from unpleasant attacks would plainly undermine that core First Amendment principle.”

The ruling is a reminder that public policy must be taken into consideration when deciding to contractual wave constitutional rights, and acts as a reminder that silence can be hard to buy.

If you have any questions or would like more information, please contact Jake Loken at [email protected].

Supreme Court Revisits Interplay Between First and Fourth Amendments

Posted on: November 29th, 2018

By: Wes Jackson

Imagine you commit a minor crime and an officer approaches you. The interaction goes south when you call the officer a “pig” and remind him that your tax dollars pay his salary. He then arrests you. Were your constitutional rights violated?

That’s the question the Supreme Court considered Monday, November 26, 2018 when it heard oral arguments in Nieves v. Bartlett. In Nieves, two Alaska State Troopers were patrolling a multi-day ski and snowmobile festival when they decided to investigate some underage drinking. Bartlett, who was intoxicated, intervened and confronted the troopers. The officers arrested Bartlett and put him in a “drunk tank.” He was later released and charged with disorderly conduct and resisting arrest. The state declined to prosecute the charges due to budgetary reasons. Bartlett sued, alleging his arrest was retaliatory because he refused to assist the officers in their investigation of the minors drinking alcohol.

Retaliatory arrest claims, like the one in Nieves, occur at the intersection of the First and Fourth Amendments: the presence of probable cause bars a Fourth Amendment claim for false arrest, but the circuits are split as to whether probable cause will also bar a First Amendment claim for retaliatory arrest arising from the same incident. Those circuits applying the probable cause bar to retaliatory arrest claims employ a bright-line objective standard that protects the officer from protracted litigation or trial where it is clear (or even arguable) that a reasonable officer could believe the arrestee had committed a crime. Rejecting the probable cause bar to retaliatory arrest claims could subject officers to months or years of litigation probing their subjective intent behind making an arrest—i.e., did the officer arrest the plaintiff for his crime or his speech?

At the Nieves oral argument, the justices sought to find a balance between protecting First Amendment rights while also giving law enforcement officers enough cover to act decisively and make arrests in fast-paced situations. On one hand, Justice Kagan noted the concern that officers might use minor crimes as a pretext to arrest for speech they disagree with, stating “there are so many laws that people can break that police officers generally look the other way, but, you know, you’re saying something that the officer doesn’t much like, so he doesn’t look the other way.” On the other hand, Justice Breyer and other justices noted the obvious concern with the chilling effect that would accompany the possibility of officers being haled into court every time they arrest someone who hurls an insult—officers could be to hesitant to make otherwise appropriate arrests.

One possible solution the justices entertained was to keep the probable cause bar for retaliatory arrests, but to limit its application to situations where there was probable cause for the charge on which the officer made the arrest or other charges upon which the arrestee was soon indicted. Such a solution would keep the probable cause bar for retaliatory arrests but prevent officers from concocting post hoc justifications for the arrest months or years later in a civil rights lawsuit.

The Court should issue an opinion in Nieves v. Bartlett in the coming months. If you have any questions about this case or retaliatory arrest claims more generally, please contact Wes Jackson at [email protected].