Category Archives: First Amendment

WASHINGTON, D.C. Recently, U.S. Senator Thom Tillis (R-NC) and 40 of his colleagues introduced legislation to prevent the Internal Revenue Service (IRS) from being used as a political weapon against American citizens.The IRS should never be used as a political weapon based on political or religious affiliation,said Senator Tillis. While the Biden Administration works to expand the IRS to go after hardworking Americans, I am proud to work with many of my colleagues on this commonsense legislation to protect our First Amendment rights.BACKGROUND:From 2010 to 2012, the Obama IRS spent over two years systematically targeting conservative tax-exempt groups. The Trump administration released a final rule in May 2020 that prevented the IRS from targeting certain tax-exempt groups based on their political beliefs.House Democrats H.R. 1 the For the People Act and Senate companion legislation S. 1 seek to repeal and undermine the Trump rule to weaponize the IRS to target nonprofit organizations based on the applicants political and policy positions.TheDont Weaponize the IRS Actcodifies the Trump rule that protects groups regardless of their political ideology or beliefs and prevents the IRS from doxing donors to these groups.Removing the requirement to report the names and addresses of donors helps protect taxpayers First Amendment rights: such information is not needed for tax administration purposes.The text of the Dont Weaponize the IRS Act can be accessedhere.

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Tillis, Colleagues Introduce 'Don't Weaponize the IRS Act' - Thom Tillis

On Wednesday, despite the thousands of calls, emails, and other communication from NRA Members and Second Amendment supporters, Senate Bill 5038 advanced out of the legislature and was signed into law. In response to the signing,NRA State Director Aoibheann Cline wrote:

BysigningSB 5038,Gov. Inslee yet againdisplays a blatantdisregard forthe safety and freedoms oflaw-abiding Washingtonians. The right of self-protection should never be denied whether at home, on the road, or in the public square. The NRA will continue this fight on all available fronts.

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Senate Bill 5038makes it a crime to openly carry, on the person or in a vehicle, a firearm or other weapon if you areat orwithin 250 feet of a permitted demonstration in a public place. Even if you leave your firearm locked in the trunk of your car, it isconsidered"open carry" under this bill andyou will be guilty of a gross misdemeanor.Despite permitting individuals to use an area for the exercise of their First Amendment rights, anti-gun legislators are banningindividuals from exercising their Second Amendment rights in the same permitted space. The Constitution was not written with gradually disappearing ink,where one right is more important than another. The Second Amendment should not be infringed upon in any capacity, especially where other Constitutional Rights are being freely and openly expressed.

Thank you to NRA Members and Second Amendment supporters who remained in constant contact with their legislators and voiced their staunch opposition to this measure. Stay-tuned to NRA-ILA for more information and updates on Second Amendment issues in the Evergreen State.

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Washington: Second Amendment Banned in First Amendment Spaces After the Signing of Anti-Gun Measure - NRA ILA

First Amendment

By Debra Cassens Weiss

May 12, 2021, 10:33 am CDT

Image from Shutterstock.

A federal appeals court has reversed the conviction of a white retired Air Force lieutenant colonel who used the N-word while complaining about a Black store employee who asked whether he needed any help.

If I called her a n- - - -r, would she still say good morning? the retired officer had said.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled Tuesday that Jules A. Bartows speech was protected by the First Amendment, and he could not be convicted for using abusive language.

The First Amendment allows a conviction only when language has a direct tendency to cause immediate acts of violence by the person to whom it was addressed, the appeals court said. Under the facts of the case, that fighting words exception to free speech protections did not apply, the court concluded.

Over the decades, the appeals court said, the U.S. Supreme Court has repeatedly determined that the First Amendment places considerable limits on the criminalization of speech. We must abide those limits, even if that means, as it does here, that shameful speech escapes criminal sanction.

Judge Diana Gribbon Motz, an appointee of former President Bill Clinton, wrote the unanimous opinion. Other judges on the panel were Judge Stephanie Thacker, an appointee of former President Barack Obama; and Judge A. Marvin Quattlebaum Jr., an appointee of Obama.

The court described what happened in November 2018, reconstructing the verbal exchange based on the testimony of witnesses.

Bartow was at the Quantico Marine Corps Exchange to shop for boots. A Black employee, Cathy Johnson-Felder, approached Bartow and said, Good morning. May I help you?

Bartow responded: If I had indigestion, diarrhea or a headache, would you still address me as good morning?

Johnson-Felder froze in shock but tried again.

Can I help you, sir? she asked.

Bartow replied: Im not a sirIm not a male, Im not a female, if I had a vagina, would you still call me sir?

Bartows raised voice drew the attention of a white uniformed Marine lieutenant colonel, who began a conversation with Bartow. Both men gestured at each other with pointed fingers, even as they continued to try on boots.

An onlooker, a Black man in civilian clothes, told Bartow that employees say sir or maam because they are purchasing merchandise at a military installation.

Bartow replied: If I called her a n- - - -r, would she still say good morning?

Vicki Herd, a store security officer, was called. She observed a heated conversation between Bartow and the Marine lieutenant colonel. Herd moved between the two men and then escorted Bartow out of the store. Base security officers arrested him.

The 4th Circuit said Bartows remarks were offensive and bizarre, and their meaning was difficult to discern. Bartows briefs suggested that his remarks reflected discomfort with gender labels and sex stereotypes. He argued that he used the slur because it can be just as offensive to be called the N-word as it for a transgender person to be misgendered.

The 4th Circuit noted that the N-word is pure anathema to African Americans. The epithet is so loaded with a legacy of slavery and racial hatred that it is inextricably linked with prejudice and hostility toward African Americans, the court said.

The slur would qualify as fighting words that could be prosecuted under the leading 1942 Supreme Court case defining fighting words not subject to First Amendment protection, Chaplinsky v. New Hampshire, the appeals court said.

But in the decades since the 1942 decision, the Supreme Court has imposed so many limitations on the fighting words exception that it has not since upheld a conviction under the doctrine.

Among the limitations are that the fighting words must be clearly directed at the person who hears them, and that the utterance must be likely to provoke an immediate violent reaction by the person addressed or by a reasonable person in that persons position.

In Bartows case, his series of rhetorical questions didnt provoke anyone, and the government didnt prove that it was likely to do so, the appeals court said.

The ugly racial epithet used by Bartow undoubtedly constituted extremely abusive language, the appeals court said. But because the government failed to prove (or even to offer evidence) that Bartows use of this highly offensive slur tended to cause immediate acts of violence by anyone, his conviction cannot stand.

Among the publications covering the decision are Courthouse News Service and the Associated Press.

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Citing First Amendment, 4th Circuit reverses conviction for retired Air Force officer's use of N-word - ABA Journal

Prince Harry and Meghan Markle moved to Los Angeles in 2020. The Duke of Sussex has only been in the U.S. for a little over a year, but hes already starting to get the hang of our customs. For one, hes beginning to see how easily our First Amendment, the right to free speech, can be abused.

Prince Harry was a guest on Dax Shepards Armchair Expert podcast on May 13. Their discussion of the dukes mental health advocacy led Prince Harry to discuss how the First Amendment can make us vulnerable.

One year into his American residency, Prince Harry admits he has much to learn about our constitution. However, hes spent enough time here to see how not everybody uses free speech for noble purposes.

Ive got so much I want to say about the First Amendment as I sort of understand it, but it is bonkers, he told Shephard. I dont want to start going down the First Amendment route because thats a huge subject and one which I dont understand because Ive only been here a short time. But, you can find a loophole in anything. You can capitalize or exploit whats not said rather than uphold what is said.

Part of Prince Harrys advocacy includes calling out some of the harmful institutions of society. For example, he spoke to Shepard about how gossip and social media keeps people in a loop of hate.

Laws were created to protect people, he said. I believe we live in an age now where youve got certain elements of the media redefining to us what privacy means. Theres a massive conflict of interest. Then youve got social media platforms trying to redefine what free speech means. I wonder why youre doing that?

RELATED: Prince Harry Just Shared the 3 Times Hes Felt Completely Helpless in His Life

Prince Harry warned listeners that corporate interests were manipulating their right to free speech.

Again, this has been happening for 15 years now, he said. The laws have been completely flipped by the very people that need them flipped so they can make more money and they can capitalize off our pain, grief and general self-destructive mode thats happened at the moment. Conflict of interest is the major piece here.

Fortunately, the duke was not just cautioning about doom and gloom. He said the power is within every individual to deprive those negative influences of power.

RELATED: Prince Harry Says His Royal Life Was Like The Truman Show

It does come back to supply and demand, he said. If we collectively became better at not clicking on or not spreading and sharing the things we know are putting people through hell, then theres no market for it. The more depressed and the harder life becomes, we end up surrendering to the information parallel with our own feelings.

Source: Armchair Expert podcast

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Prince Harry Calls The First Amendment 'Bonkers' and He Makes a Good Point - Showbiz Cheat Sheet

Everyone knows that a fundamental principle of American democracy is the First Amendment guaranteeing many freedoms to US citizens including freedom of the press and freedom of speech. It is one of those concepts that underlies our society, but is often mentioned only in passing, and rarely considered in practice. Few people even broadcasters and other media companies have cause to think about First Amendment principles in their day-to-day operations. The concepts embodied by the First Amendment are almost a given except when they are not.

In our politically polarized society, there are more and more arguments made about regulation of speech in various contexts often made without significant consideration of those First Amendment principles. On the broadcast side, we have seen Commissioner Carr react to two cases where the FCC has seemingly been called on to regulate the speech (or anticipated speech) of broadcasters. One case involved a call to deny the sale of a broadcast station allegedly based on a perceived change in the political orientation of its programming from liberal to conservative (see the Carr statement here), and another calling for the FCC to investigate a TV station in Baltimore for allegedly being too focused on investigations into a local government official (see the Carr statement here and an NAB statement also weighing in on the controversy here). While there may well be issues in each case that go beyond the question of the proposed speech of the broadcasters involved, the issue of whether the FCC can get involved in the regulation of political positions taken by broadcasters is one that is addressed both by the Communications Act and past FCC precedent.

We have written many times about how the FCC is restricted by the First Amendment and Section 326 of the Communications Act from regulating the speech of broadcasters. Section 326 states:

Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

The FCC has weighed the impact of the First Amendment and Section 326 in numerous cases and found that these principles keep it out of content regulation (with certain limited exceptions, such as indecency and obscenity). This hands-off policy has been a consistent theme through the FCCs decisions in a variety of areas. See, for instance our article last year regarding the FCCs denial of a complaint about stations airing President Trumps news conferences that allegedly contained false information that violated the broadcast hoax rule; our article here on the FCCs reluctance to get involved in assessing the truth of attacks made in political ads; our articles here and here on the FCCs policy that it does not regulate the format of broadcast stations; the FCCs decision to end enforcement of the Fairness Doctrine (see our article here); its denial of previous requests that it penalize a licensee for allegedly airing fake news reports (see our article here); and its decisions to not substitute its judgement for that of the licensee in cases where the FCC was asked to deny renewal applications based on a petitioners assessment that the programming selected by the licensee did not best serve the public interest (see our article here).

This consistent position keeps the FCC out of regulating the political speech of broadcasters. But these same issues are now being raised by both liberals and conservatives in the context of regulating online speech. We have seen calls for the regulation of Internet platforms that do not limit the speech of some individuals (see, for instance, the controversy last week around the continued ban of former President Trump on Facebook), as well as calls from others to forbid these platforms from blocking individuals, particularly where these platforms provide access to some but not all candidates for political office. Because online platforms are private companies with their own free speech rights, including the right not to be associated with certain speech of others or with hate speech, it is not necessarily the same analysis as content regulation by government actors. The First Amendment generally will not apply to the decisions of private online platforms in the same way that it does to government actors, like the FCC, which generally are barred from injecting themselves into content decisions. But there are still calls for online regulation of these platforms and we will delve into some of those arguments and their implications for the First Amendment in an article to be published in the near future.

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The First Amendment's Role in Broadcast and Online Regulation - Lexology

In Short

The Situation: The Federal Communications Commission ("FCC") under President Biden is likely to revive Obama-era net neutrality rules repealed by President Trump's FCC.

The Issue: Net neutrality raises First Amendment questions that have yet to be addressed by the Supreme Court, although in 2017, then-D.C. Circuit Judge Kavanaugh concluded that the Obama-era net neutrality rules violated the First Amendment.

Looking Ahead: The First Amendment is likely to play a key role in any proceeding to revisit the FCC's net neutrality rules and in any subsequent litigation.

2015 Net Neutrality Rules

Net neutralitythe principle that broadband internet access service providers should transmit all internet content equallyhas long prompted legal and policy debate, and the federal government's posture on the issue has shifted several times during the past decade. After several attempts to impose net neutrality during the Bush and Obama administrations, the FCC adopted net neutrality rules in the 2015 Open Internet Order to prevent broadband providers from blocking or slowing internet traffic to websites and applications. The FCC also classified broadband service as a Title II "telecommunications service" under the Communications Act.

First Amendment Issues

Broadband providers challenged the Open Internet Order, arguing in part that the net neutrality rules violated the First Amendment by forcing broadband providers to transmit speech with which they might disagree. In 2017, the D.C. Circuit upheld the net neutrality rules after concluding that nondiscrimination and equal access obligations do not violate the First Amendment. In a dissent from the denial of rehearing en banc, then-Judge Kavanaugh viewed the FCC's net neutrality rules as restricting broadband providers' editorial discretion over what content to carry over the internet in violation of the First Amendment.

2018 Restoring Internet Freedom Order

That First Amendment issue never reached the Supreme Court because the Trump FCC repealed the Obama-era net neutrality rules in the 2018 Restoring Internet Freedom Order. In that order the FCC also reclassified broadband internet access service as an "information service" under Title I of the Communications Act, and explicitly moved to preempt state net neutrality laws. In 2019, the D.C. Circuit largely affirmed the Restoring Internet Freedom Order, except the court vacated the FCC's preemption decisionclearing the way for a handful of states, including California, to enact their own net neutrality laws.

The Road Ahead

President Biden campaigned on a promise to restore the Obama-era net neutrality rules, and the Biden FCC appears poised to revive them. Since taking office, President Biden appointed a leading proponent of net neutrality as a White House advisor, and his Department of Justice withdrew a lawsuit challenging California's net neutrality law. The two current Democratic FCC commissioners have long championed net neutrality, and the acting chairwoman dissented from the Restoring Internet Freedom Order.

The First Amendment will loom large in any FCC proceeding to restore the net neutrality rules once the FCC is at full strength. In the time since the D.C. Circuit ruled that the First Amendment was no obstacle to the FCC's net neutrality rules, dissenting Judge Kavanaugh was elevated to the Supreme Court. As demonstrated by the Supreme Court's decision to invalidate the CFPB's structure in Seila Law LLC v. CFPB, then-Judge Kavanaugh's opinions on government actions and authorities often foreshadow the views of a majority of the Supreme Court. The Supreme Court's views about government regulation of online speech will likely play a central role in the conversation regarding the next iteration of the FCC's net neutrality rules.

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The Road Ahead for Net Neutrality and the First Amendment - JD Supra

In Part I of our look at the history and theory of campaign-finance law, we considered the 1976 US Supreme Court case of Buckley v. Valeo, which established the principle that First Amendment political speech can be limited by the government only when there is a compelling justification, such as preventing corruption or the appearance of corruption.

These principles set forth in Buckley continue to play a role in our campaign-finance system today. Under US Supreme Court jurisprudence, it is permissible for the federal government or a state to institute limits on the amount of a contribution that may be received from one contributor, because high-dollar contributions from one individual could create the appearance of corruption. But once funds are raised in accordance with applicable limits, states cant then restrict what a candidate can expend on his or her campaign because there is no anti-corruption rationale for such a restriction.

Thus, New Jersey non-gubernatorial candidates can only accept $2,600 per election from each contributor, and contributions that exceed $300 per election must be reported in detail to ELEC. These limits and requirements are consistent with the First Amendment. (Some states have opted to allow unlimited contributionsfor example, Pennsylvania allows individuals to contribute without limit to a Pennsylvania candidate. The First Amendment protection of free speech allows contribution limits, but doesnt require them.) But New Jersey candidates cant be forced to endure an expenditure cap, except in the limited scenario of a candidate that voluntarily opts to participate in the gubernatorial public-financing system.

These concepts even apply to independent expenditures and Super PACsif the rationale the Supreme Court cited to uphold contribution limits is that these limits are necessary to prevent corruption or the appearance of corruption, then it follows that independent expenditures and committees that make only independent expenditures must not be subject to limits because there is no danger of corruption when activities are not coordinated with the candidate. This was the rationale behind the Citizens United line of casesprovided that expenditures are truly independent, the Supreme Court determined that there is no danger of corruption or the appearance of corruption, and thus limits on what may be contributed to a Super PAC are unconstitutional. People can and do disagree on the effects of Super PACs on our politics, but overturning Citizens United isnt as simple as it may seem: the legal principles underlying our politics date back to Buckley in 1976 and the First Amendment.

Other countries, not subject to the First Amendment protections on political speech, have devised different systems. In Germany, for example, there is no limit on what an individual may contribute to a political party. But elections there are not dominated by large individual contributors because there is significant public funding of major parties and there are also federal and state limits on expenditures made by the partiesin one clarifying example, German public guidelines ensured that the two largest parties would be limited to 12 minutes of TV ad time per campaign period, with smaller parties limited to either 6 or 3 minutes. While TV viewers in October of a US Presidential election year might appreciate these limits on TV commercials, these mandatory limits would not pass constitutional muster under our First Amendment.

The key thing for those looking to be active in political activity is to understand both the theory of campaign-finance law as well as the practical application of the law.

Avi D. Kelin, Esq. is Counsel in Genova Burns LLCs Corporate Political Activity Law Practice Group and Chair of the firms Autonomous Vehicle Law Practice.

This column is for educational and informational purposes only and is not intended and should not be construed as legal advice. It is recommended that readers not rely on this column, but that professional advice be sought for individual matters.

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Compliance Corner: A Brief Introduction to the History and Theory of Campaign-Finance Law, Part II - InsiderNJ

D.C.'s ban on dancing at weddings provoked eyerolls when it was first announced. Now a bride-to-be is suing to stop the regulation, arguing that it is an irrational and unconstitutional restriction on her special day.

On Monday, Margaret Applebya doctoral student and D.C. residentfiled a lawsuit against D.C. Mayor Muriel Bowser and D.C. Attorney General Karl Racine in U.S. District Court, arguing that a ban on dancing at her upcoming June wedding violates her First Amendment rights.

"The First Amendment does not permit the District to irrationally discriminate against wedding dancing, while simultaneously allowing equally dangerous, though less expressive, activities to continue without remark," said Adam Schulman, a senior attorney with the Hamilton Lincoln Law Institute, which along with the Liberty Justice Center is representing Appleby.

The wedding dancing ban was first announced as part of Bowser's April 26 public health order. That order allows "multi-purpose" facilities to host weddings and other "special non-recurring events"at 25 percent capacity without the need for a special city waiver starting May 1. But it also required attendees to be seated. "Standing and dancing are not allowed," reads the order.

This restriction applies to Appleby's wedding in spite of all the other health precautions she had agreed to take, including requiring guests and vendors to be masked (unless seated and eating), making available guests' contact information for contact tracing purposes, and providing hand sanitizer throughout the venue.

Appleby and her fiance were planning to have a maskless "first dance," which they assumed was permissible given that they are members of the same household and have both been vaccinated. The explicit ban on dancing came as a shock to them, and to wedding planners throughout the city.

Both dancing and wedding rituals, Appleby's lawsuit argues, are First Amendmentprotected expression. To restrict this expression while permitting dancing in fitness classes and strip clubs is, it says, "arbitrary and underinclusive."

Their lawsuit also argues that D.C.'s restriction on expressive dancing is not "narrowly tailored" to achieve the city's public health goals, because it bans dancing even if participants are masked or vaccinated.

The lawsuit asks that D.C.'s ban on masked, socially distanced dancing be ruled unconstitutional and the city be prevented from enforcing it.

The reopening of the country's most restrictive jurisdictionsa group that definitely includes D.C.has produced a bizarre mix of restored freedoms and arbitrary restrictions. COVID-hawk governors and mayors are begrudgingly permitting more activities while also regulating them to death. Lawsuits like Appleby's are a necessary corrective to the absurd rules that are coming along with these halting reopenings.

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New Lawsuit Argues That D.C.'s Ban on Dancing at Weddings Violates the First Amendment - Reason

In a commencement address delivered at Michigan Stadium in 2010, President Barack Obama famously prescribed a cure for the enmity ailing our politics.

"If you're someone who only reads the editorial page of The New York Times, try glancing at the page of The Wall Street Journal once in a while," he exhorted. "If you're a fan of Glenn Beck or Rush Limbaugh, try reading a few columns of the Huffington Post website."

The president's sage advice went unheeded. As evidenced by voters' schizophrenically partisan opinions about President Joe Biden's legitimacy, too many of us now huddle in toxic media bubbles feedback loops confirming our political biases.

Reinstating and modernizing the time-tested Fairness Doctrine, a policy dating back to 1929 that for nearly six decades required over-the-air broadcasters to present both sides of public issues, would help burst those bubbles.

Wrapping themselves in the First Amendment, partisans and broadcasting conglomerates would fight any effort to resuscitate the Fairness Doctrine.

But freedoms are not absolute. In 1969, the Supreme Court held in Red Lion that the Fairness Doctrine withstands legal scrutiny: The First Amendment allows the government to require a broadcast licensee "to present those views and voices which are representative of his community."

Indeed, the Supreme Court ruled the Fairness Doctrine furthers the purpose of the First Amendment by creating "an uninhibited marketplace of ideas in which truth will ultimately prevail."

A Fairness Doctrine equal to the task of meeting today's challenges, including ubiquitous social networks and 24/7 cable news, would have to be carefully crafted to pass constitutional muster. But a regulatory and enforcement scheme one that balances myriad competing interests could be devised.

Ideological regulators at the Federal Communications Commission gutted the Fairness Doctrine in 1987 by selling a fiction: An increase in cable channels eliminated any need for government to shape editorial content.

The argument was not evidence-based. Fairness Doctrine opponents never established a correlation between an increase in broadcast outlets and voters' exposure to contrasting viewpoints.

History has disproven assumptions undergirding arguments hyped by libertarians who advocated the Fairness Doctrine's demise: Competition for public trust would "force" broadcasters to cover many sides of issues; the doctrine causes outlets to remain silent on controversial issues; in a bustling media marketplace, voters would listen to each other and change their minds.

These predictions were as misguided as futurists who prophesied that, like George Jetson, we'd now be commuting in flying cars.

Sean Hannity's business model doesn't give airtime to Nancy Pelosi. "Morning Joe" MSNBC producers make profits by playing to progressive partisans.

We know now broadcasters will never voluntarily walk away from the billions of dollars annually generated by wall-to-wall "politainment."

Rather than meaningfully engage each other, we rarely, if ever, emerge from partisan corners a fact reflected by our news consumption. Republicans overwhelmingly get their political and election news from Fox News, a recent Pew Charitable Trust poll found. One-fifth of Democrats and Republicans receive their news only from sources catering to like-minded audiences.

The electronic iron curtain dividing our media landscape explains why former President Donald Trump's approval ratings stayed locked in place throughout his four tumultuous years in office, why he maintains an iron grip on Republicans today, and why liberals often unfairly paint his supporters with the broadest of brushes, peremptorily dismissing them as morally irredeemable.

We don't have to live in a world in which millions of eyeballs are glued to hyper-partisan TV. Grassroots groups across the political spectrum (from the ACLU to the NRA) supported the Fairness Doctrine. It allowed them to register complaints about editorial imbalance and demand "reasonable opportunity for presentation of opposing points of view."

The Fairness Doctrine worked. It resulted in, for example, airtime being granted to respond to the political harangues of a fiery radio evangelist and the revocation of a broadcast license belonging to another radio station whose programming was "highly racist, anti-Semitic, anti-Negro and anti-Roman Catholic."

Enforcement of the Fairness Doctrine generated public trust in the media, which in recent years has plummeted to all-time lows, according to Gallup.

As importantly, the Fairness Doctrine cultivated an ethos of civic responsibility, promoted allegiance to journalistic codes of ethics, and stood as a beacon of objectivity.

Imagine the sunnier reality a wisely implemented, clearly defined Fairness Doctrine would help usher in. News outlets would be incentivized to broadcast truly "fair and balanced" news coverage. Partisan screeds more likely would be answered with counterstatements of fact.

The media, with its cacophonous echo chambers, are self-evidently in dire need of reform. It's time to revive the Fairness Doctrine and even expand it so it applies to cable TV's demagogic talking heads.

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Commentary: It's time to revive Fairness Doctrine and expand it - Crain's Detroit Business

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

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

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

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

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

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

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

1. First Amendment

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

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

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

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

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