Daily Archives: January 5, 2024

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The House Republicans won a rhetorical victory last month in the congressional hearing addressing antisemitism on college campuses. The then presidents of Harvard University, the Massachusetts Institute of Technology and the University of Pennsylvania could not thread the needle necessary to reconcile their institutions prior robust regulation of speech in the name of community inclusivity with their recent failure to take action against hateful speechindeed, sometimes conductdirected at Jewish students. Under questioning, the presidents appeared insensitive, evasive and inconsistent. In short, the leaders of our top universities, advised by a top law firm, got schooled.

But this rhetorical victory will soon prove Pyrrhic if higher education draws the wrong lessons. Already, mandatory diversity trainings and more aggressive code of conduct enforcement are being touted as solutions to our present morass. Indeed, it was not clear whether the Republican inquisitors wanted universities to follow the First Amendment and embrace broad speech protections or adopt more vigorous codes of conduct that would aggressively punish hateful speech.

What was clear from the hearing was that universities engage in viewpoint-based enforcement of their policies, with examples eagerly shared by Republicans, including speaker cancellations, faculty discipline and revocations of admission offers based on student social media posts. Such selective enforcement is not only politically toxic but legally problematic as a potential violation of TitleVI of the Civil Rights Act and universities contractual promises of evenhanded conduct-code enforcement.

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There is a principled and prudent way out of higher educations crisis of its own making. Though they are not required to do so, private universities should explicitly embrace the First Amendments speech protections in their student handbooks and conduct codes. Language tracking the First Amendment, as some private universities claim to have, is not enough. Such policy statements are easily subject to manipulation by poorly monitored decision-making bodies such as university conduct committees and offices of equity. Indeed, in todays academic climatewhere universities have punished silence and offer trainings that state that cisheterosexism and fatphobia are abusevague suggestions in student handbooks that speech will only be sanctioned when it becomes conduct provide little comfort.

By voluntarily embracing a First Amendment speech standard, private universities would incorporate by reference a large body of case law and evaluative principles. In an area as confused and subject to manipulation as speech and conduct codes, this approach has obvious benefits. University committees tasked with assessing a situation could rely on case law instead of their own often meager and contradictory internal precedents, and university counsel could provide clearer guidance.

Moreover, students or faculty who believe they were wrongly punished for their speech would be able to challenge the university in court for violating its First Amendment commitment. A court, rather than wading through opaque university promises and deciding whether they are enforceable, could instead look to well-developed First Amendment jurisprudence for guidance. With an explicit First Amendment endorsement, student handbooks could no longer be disregarded as too indefinite to establish any concrete promises of protection, as some courts have been inclined to rule.

If universities retain their current speech and conduct regulations, enforcement must be impartial. Given the one-sidedness of their present politics, a point revealed by the congressional hearing, elite universities are not well constituted to ensure neutrality.

But uneven enforcement creates legal and regulatory risk. TitleVI of the Civil Rights Act requires that universities accepting federal funds not discriminate based on race. The Biden administration has announced a number of civil rights investigations sparked by the present speech controversy. Should a Republican win the presidency in 2024, we can anticipate even more aggressive investigations and sanctions, including the possible loss of federal funding. Moreover, students are already bringing private litigation alleging both TitleVI and contract violations stemming from universities inconsistent enforcement of their speech and conduct rules.

By contrast, a private universitys promise to commit to the First Amendment would neither imperil learning nor encourage chaos in Americas most elite private institutions of higher education. We know this because our nations public institutions are already subject to the First Amendment as state actors.

And public universities seem to be faithfully following the First Amendment. In the Foundation for Individual Rights and Expressions university speech rankings, 45 of the 50 best colleges for speech are public institutions, with private colleges taking the majority of the bottom slots. Yet state universities have not experienced the same campus disruptions as their more censorious private peers. Indeed, it seems that allowing students to debate hard topics within the broadthough not boundlesslimits of the First Amendment may actually promote both education and order, two things sorely needed in these challenging times.

Max Schanzenbach is the Seigle Family Professor of Law at Northwestern Universitys Pritzker School of Law. Kimberly Yuracko is the Judd and Mary Morris Leighton Professor of Law, also at the Pritzker School of Law.

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Private colleges should follow the First Amendment (opinion) - Inside Higher Ed

Regulatory agencies can often be an essential part of day-to-day life, preventing people from engaging in activities they have no expertise in something that could potentially endanger a lot of people. But they can also be overbearing brutes whose only concern is whether or not theyve managed to extract as much money as possible from people who are experts in their field but have no desire to pay for the privilege of utilizing their skills.

In Oregon, a sequence of events involving an unlicensed engineer who had things to say about traffic light timing resulted in thestate licensing board apologizingto Mats Jarlstrom for (expertly) saying things the government didnt want to hear. Jarlstroms ended up with a complete win, with his (unlicensed) research on yellow light timingmaking it clear citieswere putting people in danger by shortening yellow light times for the sole purpose of increasing revenue via traffic citations.

A similar thing is happening in North Carolina. Retired engineer Wayne Nutt was told by the North Carolina Board of Examiners and Surveyors to stop offering his expert opinion on engineering matters, even though he was fully qualified to do so. The only thing he was missing was a permission slip from the state board in the form of a professional engineers license.

Nutt refused. He decided to sue instead, represented by the Institute for Justice. He has obtained his first victory, in the form of a federal courtdecision[PDF] that says his expert opinion is protected by the First Amendment and cannot legally be silenced by the state. (viaVolokh Conspiracy)

Heres Nutts background:

Nutt worked as a chemical engineer from 1967 to 2013. He never obtained a professional engineering license because he qualified to practice engineering under the industrial exception of the licensing requirement in North Carolina. A portion of his responsibilities involved overseeing the design, construction, and repair of building trench systems to manage both stormwater and potential chemical spills at his work facility. As a result, he developed expertise in hydraulics, fluid flow, and piping systems.

Since his retirement, he has continued using his expertise to support the efforts of various local interest groups. He has testified to the Wilmington City Council regarding the flaws he identified in a development proposals traffic impact study. He has also testified about an error he discovered in a development plans calculation of the capacity of a stormwater detention pond. His opinion and recommendations led to meaningful changes in the design of those projects.

A long career followed by an unpaid career in public service. None of this was a problem until Nutt tried to offer his expert testimony in a 2020 lawsuit against the county government over allegedly negligent storm drain design that had contributed to additional flooding during Hurricane Florence.

At that point, the government had had enough of Nutt and his expert interloping. The governments lawyers said allowing Nutt to testify in this case would constitute the unauthorized practice of engineering. It made an attempt to silence him by sending him an email suggesting he would be breaking the law if he chose to offer his testimony, leading off by informing him he was not even legally allowed to refer to himself as an engineer.

The Board sent an email, explaining that an unlicensed individual cannot publicly use the term engineer in their descriptive title or offer testimony likely to be perceived by the public as engineering advice.The Board also provided a position statementthe focus of Nutts claimwarning that testimony impacting the public, including expert witness testimony on engineering matters in the courtroom or during depositions and testimony based on engineering education, training or experience, requires licensing. The statement also indicated that expert reports are also evidence of the practice of the profession. The Board stated that it has proceeded against unlicensed individuals for the unlicensed practice of engineering.

Nutt testified anyway. The irritated board responded with some per our previous email saber rattling. Then the expert witness testifying for the government filed a formal complaint against Nutt, accusing him of engaging in unlicensed engineering. A couple of months later following an investigation by the state board, Nutt received another email informing him he had broken the law and that he would likely be fined/cited if he insisted on offering his expert opinion during litigation involving the government.

The court says the emails and the threats they contained are enough to both show standing and demonstrate Nutt has a reasonable fear of prosecution if he continues to offer his expert opinion on engineering matters.

The state tried to moot the lawsuit by claiming the board was no longer pursuing any action against Nutt because the case he testified in had been dismissed. Not good enough, says the court. And stop pretending you didnt do the things you did while that litigation was still a going concern. (Emphasis in the original.)

At oral argument, the Board argued that Nutt should no longer reasonably expect prosecution for providing engineering testimony as an expert witness because it has not tried, and will not try, to prohibit Nutt from testifying as an expert witness. But the Boardhastried to prohibit Nutts speech. Moreover, renouncing its pre-filing enforcement position, while denying the true nature of its past practices, does not make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.

In hopes of exiting this lawsuit, the state dug its own hole with a combination of contradictory assertions and concessions to certain arguments made by Nutt. It all adds up to a First Amendment violation.

As mentioned above, Nutt seeks a judgment declaring that the Act, as interpreted and enforced, violates the First Amendment, both on its face and as applied to him and others similarly situated. He also seeks a permanent injunction allowing him and others similarly situated to testify about topics that require engineering knowledge without first obtaining an engineering license. The Board has conceded on paper and at argument that it will not enforce the Act to prohibit Nutt and others similarly situated from testifying on engineering matters.

As explained above, this concession does not render the parties dispute moot.It does,however, make clear that the Board does not contest Nutts core claim. Namely, the prohibition on unlicensed expert engineering testimony violates the First Amendment. Therefore, in light of the parties positions, the court will accept that claim as applied to Nutt. The court will also enjoin the Board from enforcing the Act against Nutt for testifying about topics that require engineering knowledge without first obtaining an engineering license.

The court acknowledges that the licensing program helps protect the public by ensuring those offering engineering services are actually capable of performing that job competently. But telling qualified engineers theyre not allowed to speak publicly about these matters without the permission of the board violates their rights. The government is always free to seek to have testimony from unlicensed engineers thrown out of court or otherwise seek to have this testimony blocked from admission. What it cant do is pursue criminal proceedings against engineers for speaking.

At its core, this case concerns the extent to which a law-abiding citizen may use his technical expertise to offer a dissenting perspective against the government. Stating that dissent required the speaker to use his expertise in several ways. He had to do some math. He had to apply recognized methodologies. He even had to write a report memorializing his work. Some of that work may plausibly be considered conduct. But it ends up providing him the basis to speak his mind. Thus, although the government may properly exercise its interests in policing the use of technical knowledge for non-expressive purposes, those interests must give way to the nations profound national commitment to free speech in this case. At the very least, the government had to show that it seriously considered less restrictive alternatives before targeting pure speech. The government failed to meet its obligations under the First Amendment.

Thats pretty cut and dry. The board is still welcome to regulate the act of engineering. But it has no business regulating their speech.

Full opinion

Federal Court Says First Amendment Protects Engineers Who Offer Expert Testimony Without A License

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Federal Court Says First Amendment Protects Engineers Who Offer Expert Testimony Without A License - Above the Law

One employee walking by sternly asked Greene not to film her. I didnt give nobody permission, she said. A public affairs officer with the hospital stopped them to ask questions about why they were filming, eventually prodding them about what news agency they work for after Dorrell claimed they were gathering footage for broadcast.

Free press, Dorrell responded.

After about 15 minutes, a police officer arrived, saying he had received a call expressing concern about them filming in the hallways. After a short conversation, he told the men they could continue to film as long as they didnt film patients or sensitive areas before walking off, leaving them to their own devices.

Thats exactly what we want, Dorrell said. What would be even better is if we had no contact whatsoever.

After about an hour inside the hospital, and nearly one-dozen interactions with staff and patients alike, the audit ended. And Dorrell, hanging up his camera, was satisfied with what he found.

Big pass, he said. They did great.

There are about a half-dozen auditors with sizable audiences and regular auditing regimens scattered across South Carolina, though the advent of the smartphone age makes the true number impossible to monitor.

And in the years since the start of the COVID-19 pandemic, the ranks of their movement have been growing steadily, with First Amendment tests becoming a regular feature of municipal life in towns big and small.

Starting in 2020, we've had an increase in First Amendment audit activity in South Carolina, Eric Shytle, general counsel for the Municipal Association of South Carolina, said in an interview. Many South Carolina jurisdictions have had First Amendment auditors come. And many of them are local.

Many of the appearances are benign, with some lasting only minutes. Some auditors dont speak to anyone unless spoken to. Others, when questioned, cite state or federal statutes allowing them to film, and proceed with their activities unmolested until they eventually decide to leave.

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The amateur cameramen testing the limit of free speech in SC | News - The Post and Courier

For years, the fossil fuel industry has maintained that the First Amendment protects its right to mislead the public about the climate crisis, but that criticism and protest of its operations violates the law. Now, one of the industrys preferred law firms which has long been recognized for its defense of the First Amendment is arguing both sides of this issue in court.

Gibson, Dunn & Crutcher represents oil giant Chevron in lawsuits brought by dozens of state and local governments to hold the company accountable for deceiving consumers and the public about its products central role in climate change. (You may also recognize Gibson Dunn as the firm that accused U.S. attorney Steven Donziger and his Ecuadorian plaintiffs of racketeering after they defeated Chevron in Ecuadors courts.) As the evidence of Big Oils long-standing campaigns of climate denial piles up, and the cases inch closer to trial, the firm is deploying a defense that seeks to protect its clients ability to mislead the public.

Chevron and other oil companies statements about climate change, Gibson Dunn has argued, constitute First Amendment protected political speech or speech concerning public opinion and policy. The First Amendment bars tort liability based on speech attempting to influence public support for climate policies, reads one motion, authored by Gibson Dunn and local counsel in October 2023, to dismiss a case that the state of New Jersey brought against Chevron and other oil majors.

Under that logic, companies could lie to us about anything, and just say because we think its political, because we think its important to policy, then we get to lie about it, said Amanda Shanor, an assistant professor and First Amendment scholar at the Wharton School of the University of Pennsylvania. We would live in a very different and far more dangerous and less prosperous society [if that were the case], which is why in general the courts have been underwhelmed by these types of arguments.

Gibson Dunn is a favorite firm of fossil fuel companies aside from Chevron, it has represented a veritable whos who of the industry, including the American Petroleum Institute, Energy Transfer, Enbridge, ConocoPhillips, Occidental, and many more. But the firm is perhaps even better known for its First Amendment record. Ted Boutrous, the lead lawyer representing Chevron in its defense against climate liability cases, famously represented CNN reporter Jim Acosta when he was thrown out of the White House press room by former President Donald Trump. And his colleague Ted Olson argued and won the most seminal corporate free speech case of the last 20 years, Citizens United v. Federal Election Commission, which opened the floodgates to dark money in U.S. politics.

The firm is not historically known for arguing against free speech rights. But thats exactly what its now doing on behalf of pipeline company Energy Transfer, in a landmark lawsuit intended to silence the fossil fuel industrys critics.

In July 2023, Gibson Dunn began representing Energy Transfer in a case filed in North Dakota against Greenpeace US and individuals who protested against the Dakota Access Pipeline on the Standing Rock Sioux Indian Reservation. The firm had already helped Energy Transfers subsidiary, Dakota Access LLC, defend the pipelines continued construction against separate legal challenges brought by local tribal leadership in 2016. But Energy Transfers suit, initially filed by law firm Kasowitz, Benson & Torres in 2017, took its defense of the pipeline much further, charging pipeline resistors with violating state and federal Racketeer Influenced and Corrupt Organization (RICO) laws that could have made them liable for nearly $1 billion in damages.

By the time Gibson Dunn took it over in July 2023, Energy Transfers case had already faced major setbacks. In February 2019, a federal judge threw out the companys original lawsuit. A week later, Energy Transfers lawyers from Kasowitz, Benson & Torres filed a new case under state defamation law in North Dakota, which has no anti-SLAPP legislation that defendants can invoke to get suits like these dismissed. Defendants protests and statements against the pipeline, the new complaint argued, amounted to an unlawful, malicious, and coordinated attack that was designed to inflict damage, cause delay, defame Energy Transfer and Dakota Access, and disrupt Energy Transfer as much as possible.

Advocates and experts say the case, which campaigners have been fighting for seven long years, is a strategic lawsuit against public participation, or SLAPP a tactic oil and gas companies are increasingly using to suppress dissent through lengthy legal processes intended to intimidate critics and diminish their resources.

This isnt just Greenpeace on trial its the movement on trial, Deepa Padmanabha, legal counsel for Greenpeace US, said. The thought is that if they can successfully silence an organization like Greenpeace US, that will have a ripple effect and smaller groups and individuals wont dare speak out. The precedent that the fossil fuel industry is trying to set around protest and protest liability is so dangerous that, if successful, it is difficult to envision how this wont have a chilling effect, she said.

Gibson Dunn did not respond to requests for comment.

In November 2023, Energy Transfer targeted Indigenous and environmental justice activists with third-party subpoenas, requesting documents and appearances at depositions, Padmanabha said. Those subpoenas havent yet been made public.

Greenpeace has become a favorite target of the fossil fuel industry as it fights back against increasing climate protests all over the world; the group has been specifically cited in industry-backed efforts to criminalize protest in Australia, Canada, and the United States. And Gibson Dunn increasingly seems to be the law firm the industry is looking to for help in these efforts. As Gibson Dunn partner Randy Mastro told the American Lawyer more than a decade ago, [w]e are the firm that clients in distress have turned to when they are facing their worst problems, or when they have in fact faced defeat.

Gibson Dunn has long honed the skill of muzzling its opponents. In the early 2000s, the firm defended Dole in a lawsuit brought by Nicaraguan banana workers whod been exposed to a toxic pesticide, DBCP, that rendered them sterile. Gibson Dunn lawyers including Boutrous, who now represents Chevron worked with Dole to develop a strategy Doles general counsel called the kill step: reportedly enticing witnesses to accuse their legal opponents of fraud.

Gibson Dunn revived that strategy for Chevron in 2011, filing a civil RICO lawsuit targeting human rights attorney Steven Donziger and his Ecuadorian plaintiffs after they won a major judgment against the company for its toxic pollution in the Amazon. Relying heavily on the testimony of a witness whom Chevron paid an annual salary, Gibson Dunn argued that Donziger had won his case by committing fraud. While that witness later recanted much of his testimony, Donziger lost the RICO case, was ordered to pay Chevron hundreds of thousands of dollars in legal fees, had a lien put on his house to cover those fees, and was ultimately disbarred and spent more than two years on house arrest and 45 days in prison. Gibson Dunn also helped Chevron file an investor-state dispute against the government of Ecuador, arguing that Ecuador engaged in a pattern of improper and fundamentally unfair conduct by providing support for the Ecuadorian plaintiffs. As a result, the government of Ecuador currently owes Chevron $2 billion. The Ecuadorian plaintiffs a group of Indigenous people and small farmers from the affected area still dont have clean drinking water, have not been compensated, and are barred from collecting the settlement owed to them in the United States, where Chevron is headquartered and where the bulk of its assets are located.

I think that while everybody deserves a lawyer, Gibson Dunn has a reputation of using strategies that many perceive as abusing the legal system to defend the wealthy at the expense of disempowered people and communities, said attorney Lauren Regan, who has defended her clients against a number of lawsuits by the fossil fuel industry including terrorism charges that Energy Transfer filed against two women for damaging pipeline equipment along the Dakota Access Pipeline in Iowa.

Today, Gibson Dunn is using anti-SLAPP statutes intended to protect advocates and whistleblowers from cases like Energy Transfers to try to get climate cases filed against fossil fuel clients dismissed. The firm has filed anti-SLAPP motions to dismiss lawsuits brought by the states of New Jersey and Delaware, and municipalities including Annapolis, Maryland; Hoboken, New Jersey; and Honolulu, Hawaii. A state court in Hawaii rejected the anti-SLAPP motion in the Honolulu suit, and it is now pending before the Hawaii Intermediate Court of Appeals. Its now the last motion to dismiss arguments that the city and county must contend with before the case can move toward trial.

In most of these motions, Gibson Dunn lawyers invoke an anti-SLAPP law in California, where Chevron is headquartered. Californias anti-SLAPP immunity protects Chevron from suits like Plaintiffs that are based on speech on issues of public concern, Gibson Dunn argues in a motion to dismiss Delawares case.

Its the latest chapter in a decades-long effort to expand free speech rights for corporations while restricting them for people a project of which Gibson Dunn is a key architect. While the idea to create corporate personas that could contribute to public debate and to advocate for free speech protections for them was first sketched out by Mobil Oil executives in the early 1970s, Gibson Dunn has played a major role in solidifying it, particularly with the pivotal and notorious 2010 Supreme Court decision in Citizens United.

The Citizens United ruling asserted a First Amendment right for corporations to express their political speech through unlimited spending on communications about elections or political candidates. The ruling laid the groundwork for corporations to be on at least equal footing with citizens when it came to First Amendment rights in what Gibson Dunn lawyer Ted Olsen called a victory for the First Amendment and the right of all Americans to participate in the political process.

Shanor, the First Amendment scholar, said that Gibson Dunn has been at the vanguard of developing aggressive First Amendment arguments to protect companies, trying to turn the First Amendment, constitutional law, and free speech principles including things like anti-SLAPP into corporate protective principles. So in many ways, its not surprising that theyre playing both sides of the coin to shield the fossil fuel companies from liability.

Even Boutrous, the lead lawyer representing Chevron in its First Amendment defense, seems to innately understand the fallacy of his own arguments. Freedom of speech does not mean making knowingly obviously dangerously false statements of fact, the attorney posted to X last year.

Boutrous gained a reputation among some as a fierce advocate for press freedom after litigating against and publicly criticizing former President Trump for his efforts to silence public debate. In 2016, Boutrous promised to represent pro bono anyone Trump sues for exercising their free speech rights. Aside from representing Acosta, he also successfully represented Trumps niece Mary against her uncles efforts to block her memoir. Today, Boutrous sits on the advisory boards of the International Womens Media Foundation and investigative reporting outlets like Reveal, and he has consulted on First Amendment disputes for both CNN and the New York Times.

Haley Czarnek, national director of programs and operations at Law Students for Climate Accountability (LSCA), said Boutrouss status and pro bono work has helped Gibson Dunn develop a sheen of progressiveness that doesnt exist with their work in practice. Several years ago, LSCA urged law school graduates to boycott the firm, citing its defense of fossil fuel companies and its role in the case against Steven Donziger, whose imprisonment, the group said, is a direct result of Gibson Dunns unethical and bullying litigation strategies.

In 2020, the Reporters Committee for Freedom of the Press (RCFP) elected Boutrous to its steering committee. Soon after, at a star-studded virtual ceremony also honoring Dark Money author Jane Mayer, the organization handed Boutrous a Freedom of the Press Award, declaring that the lawyer understands the importance of the First Amendment every bit as much as a journalist does. Chevron was a Legacy Champion sponsor of that awards ceremony, meaning it donated at least $50,000 to the RCFP.

When asked about Boutrouss position at RCFP, Donziger replied that members of its steering committee basically are in bed with a man who makes his living violating the core tenants of the organization.

The same year that RCFP handed out those awards, the group also condemned Energy Transfers effort to subpoena the work of journalists covering protests against its operations at Standing Rock. It described the subpoenas, which could provide evidence for the case helmed by Gibson Dunn, as an attempt to intimidate journalists and silence their sources. In November 2023, RCFP and local news outlets filed an amicus brief asking the Minnesota Supreme Court to deny Energy Transfers attempts to subpoena those journalists and to reverse a lower courts order forcing them to produce a privilege log listing unpublished newsgathering materials.

Boutrous and RCFP did not respond to separate requests for comment.

A five-week trial in Energy Transfers case against the Standing Rock protestors and Greenpeace is scheduled for July 2024.

This piece was co-published by DeSmog and ExxonKnews. ExxonKnews is a project of the Center for Climate Integrity, which has filed amicus briefs in support of Delaware, Minnesota, Rhode Island, and the District of Columbia, as well as Baltimore, Honolulu, Imperial Beach, Marin County, Maui, San Mateo County, and Santa Cruz County, in their lawsuits against Chevron and other fossil fuel majors. Emily Sanders, the author of ExxonKnews, had no involvement in the creation or filing of those briefs.

Read more:
The Law Firm Helping Big Oil Weaponize the First Amendment - DeSmog

As chancellor of the University of Wisconsin-La Crosse, Joe Gow was once surely to be remembered for a tenure that oversaw unprecedented enrollment growth and increased first- and second-year student retention rates. His stewardship at the midsize university drew acclaim from colleagues when he announced his decision to step down at the end of the current academic year.

Until recently, not many realized that during the 17 years Gow had been chancellor, hed also been creating pornographic content with his wife and other professionals over the past decade.

UW System President Jay Rothman has since let go of Gow before his expected date and is now threatening to review his status as a tenured faculty member, stating that the former chancellor has caused the university significant reputational harm, according to The New York Times. Rothmans actions have provoked the former chancellor and his wife to accuse the university of violating his First Amendment rights.

Under a pseudonym, Gow and his wife, Carmen Wilson, have uploaded content to OnlyFans and YouTube that involved sexually explicit acts with each other and with professional pornstars. However, Gow and Wilson believe the university is undermining their First Amendment rights since none of their videos identify who they are or UW-La Crosse.

Its not what were about in higher ed, to censor people, Wilson said, according to The Times. If they seek [the content], theyre free to do so.

The Foundation For Individual Rights and Expression, in its recent report, makes the case that the institution may be justified in its ability to dismiss Gow from his position as chancellor due to the high-ranking and public-facing nature of a government-paid position.

But Gow may have a stronger case to retain his tenured faculty position, said FIRE Program Officer Jessie Appleby in an email.

Generally, government employers like UW have greater latitude to regulate the private speech of political appointees and other high-ranking officials who publicly represent the university, but universities do not have the same latitude to discipline faculty for their private speech.

The report mentions a similar U.S. Supreme Court case from 2019, in which it held the government could not fire a federal employee based on her publishing a book under a pseudonym about her work as a phone sex operator. Like Gow, this individual had not deliberately linked her book with her government employment.

He has a strong First Amendment case that UW may not terminate his faculty position based on private speech unrelated to his position as a professor.

Previous instances in which courts ruled that employees could be terminated for their off-duty expression about these illicit acts were due to the fact the concerned individuals intentionally associated their government employment with adult content.

Read the original here:
To what extent is this chancellor's First Amendment rights protected? Experts weigh in - University Business

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His View: The First Amendment is under fire in today's America - Moscow-Pullman Daily News

Original Article Link: Website terms of use lead to First Amendment lawsuit against San Diego health care district | Courthouse News Service

A health district board member says her free speech rights were violated when she was reprimanded for criticizing a websites terms of use.

While many may blindly accept websites terms of use without even reading them, an elected member of the Palomar Health Districts Board of Directors bristled at the prospect of having to agree to a wide ranging set of rules in order to see the districts web page.

But after Laurie Edwards-Tate criticized the terms of use agreement in an interview with local media, the health district reprimanded her. Now, shes suing the San Diego County-based health district, claiming it violated her First Amendment rights.

In August 2023, the health districts administration added terms of use to their site. If users dont agree to the terms, they cant access any part of the site, including public records like meeting minutes and agendas for board meetings.

If users opt in, they agree to let Palomar Health collect their personal information, to resolve any disputes through arbitration, and to waive their right to bring a class action lawsuit against Palomar, among other things.

A reporter for Voice of San Diego, a local nonprofit news outlet, wrote a story about the new user agreement. For a follow-up story, the reporter spoke to Edwards-Tate, who relayed her concerns that it would be a barrier for people to access the Palomar Health Districts website, and that, to her knowledge, the decision to put the agreement on the site was never brought up in a regular board meeting.

The Voice of San Diego story also pointed out the possibility that the terms of use agreement could violate the Brown Act, a state law that governs public access and participation in public meetings, since Palomar is a public health care district, and the new terms of use may impose a restriction to access public records on the site.

Shortly after the article was published, Edwards-Tate received an email from an attorney representing the chief executive office of Palomar informing her that her comments were being investigated for possible violations of the health districts duty of loyalty and their media policy, which prevents employees from giving their personal opinions to the news outlets without permission from the marketing department. The email also said her comments could be considered under the districts policy as being false or misleading.

Edwards-Tate claims in her lawsuit that the districts policies amount to unconstitutional prior restraint on speech and violate the California Constitutions freedom of speech clause.

I think it all boils down to the right of a public official to speak to their constituents, Edwards-Tate told Courthouse News. The constituents have the right to hear from their public official.

Thelawsuitwas filed in the U.S. District Court, Southern District of California in San Diego on Wednesday.

Edwards-Tate said she was aware the board had plans to upgrade their website, but there was never any discussion, or vote, on the terms of use agreement or how it would affect constituents.

People count on us, count on me, to represent them. When it comes to health care, this is a very serious issue, she said, adding that she is also concerned about how it affects her constituents rights to access public record, or make public comments to be considered at board meetings.

She said she gave the Voice of San Diego a very benign statement, that didnt malign the health district itself.

The districts position here flies in the face of the First Amendment. They are trying to sanction an elected official for telling the people she represents about a policy she disagrees with, wrote Karin Sweigart, one of Edward-Tates attorneys, in a press release. It is hard to think of a more blatant infringement on First Amendment speech than the government telling a legislator they cannot tell their constituents they think a government policy is a bad one.

Palomar Health District did not immediately respond to requests for comment.

Original Article Link: Website terms of use lead to First Amendment lawsuit against San Diego health care district | Courthouse News Service

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Website terms of use lead to First Amendment lawsuit against San Diego health care district - San Diego News Desk

Veteran Teacher Sues Hartford Board of Education Over Alleged First Amendment Violation

John Grande, a physical education teacher with over 30 years of experience in Hartford schools, is challenging the Hartford Board of Education and several individuals in a federal lawsuit, sparking conversations on free speech and the enforcement of training policies within educational systems. The individuals include Leslie Torres-Rodriguez, the superintendent of Hartford Public Schools; Edward Wilson Jr., the staff attorney and executive director of internal investigations and security; and Tracy Avicolli, the director of arts and wellness.

Grande alleges that the district violated his First Amendment rights and fabricated evidence against him after he criticized a mandatory Identity and Privilege training session. The lawsuit seeks to expunge a letter of reprimand from his file, secure restitution for his paid time off, and claim monetary damages for interference and deprivation of his First Amendment rights.

Further accusations suggest that school officials engaged in a witch hunt investigation against Grande and conducted a kangaroo court to convict him for his exercise of free speech rights. The veteran teacher contends that the training was part of a broader initiative to introduce critical race theory into the school system. Grande also disputes the language attributed to him by the school district and alleges that the Hartford Federation of Teachers failed to address his complaint about the schools training.

In a related development, Abby Zwerner, a former first grade teacher at Richneck Elementary School in Newport News, Virginia, is suing the school for alleged inaction that could have prevented a classroom shooting incident. The event, which occurred on January 6, 2023, left Zwerner with physical and emotional scars. Despite her lawsuit, the school district maintains that the incident falls under workers compensation. Jeffrey Breit, Zwerners attorney, argued that no teacher should expect such violence in the classroom and that the school board needs to address the issue. The trauma has permanently affected Zwerners life, and her lawsuit continues to make progress.

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John Grande Sues Hartford Board Over First Amendment Dispute - BNN Breaking