Articles Posted in Freedom of Speech

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Toledo Public Schools recently settled a lawsuit with the Toledo Federation of Teachers. The settlement requires the district to change its policy regarding staff members interacting with the media. Allegations in the lawsuit stated that the current media policy violated the First Amendment rights of union members.

Freedom%20of%20Speech%2045907452-001.jpgThe trouble began when Bowsher High School athletic director Terrance Reeves granted an interview to a local weekly publication. A reporter asked questions about an injury Reeves received while breaking up a fight between spectators at a basketball game. Reeves had given interviews before in his role as athletic director. The focus of this interview was more personal, and Reeves didn’t have any qualms about answering the questions.

After the story appeared, Toledo Public Schools requested a meeting with Reeves. It seems he was in violation of the district’s policy that prohibits staff communication with the media without concurrently working with the district. The TPS policy says that staff members “contacted directly by a member of the media must refer the reporter to the communications office, who will work with staff and the media outlet to respond appropriately … .”

Although this policy had been in place for years it had never been enforced. Reeves had communicated with the media frequently without receiving any kind of reprimand, but the district’s reaction to this story was different. Reeves and the teachers union sued the district after he was given a “green sheet,” essentially a written warning. The lawsuit attacked the policy as being overly broad and vague.

The parties reached a settlement in which the district agreed to change its policy regarding staff members and media communication. Included in the new policy is an acknowledgement of the right of staff members to express themselves as part of participation in a free society. However, the policy also requires that media communications related to the district should be mindful of the district’s interests.

Having organization policies reviewed by an attorney is an excellent way to avoid similar situations. With the assistance of a lawyer it’s possible to balance the rights of employees with the interests of the employer.
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In a ruling that businesses are sure to welcome, a court has ruled that employers can prevent employees from wearing clothing that criticizes the company.

T%20Shirt%20Question%20Mark%2050357862-001.jpgA Washington, D.C., federal appeals court reversed the National Labor Relations Board (NLRB) 2011 ruling that AT&T was wrong to discipline employees who wore anti-AT&T shirts to service calls in customers’ homes.

Originally, the NLRB ruled that the employees’ right to wear the shirts outweighed AT&T’s right to protect its reputation. The ruling tied the hands of employers to manage their own reputations in crucial ways. For example, under the ruling, employees who dealt directly with the public could express their dissatisfaction with management through messages on their clothing. Additionally, employers could no longer prohibit union messages on employees’ apparel.

However, the appeals court disagreed, citing the need for common sense in legal decisions. The recent decision pointed out that banning union messages has always been allowed when the messages can reasonably be expected to damage customer relationships or the company’s image.

In the AT&T case, the company disciplined service technicians for wearing shirts that identified them as prisoners of AT&T, even bearing an inmate number on the front. The NLRB ruling found that AT&T failed to show enough evidence that the shirts damaged the company’s relationships with customers.

The appeals court sided with the lone dissenting member of the NLRB, agreeing that it was unreasonable to require AT&T to prove actual harm from the shirts. Additionally, it ruled that the banned shirt was different from other casual shirts that the company permitted. The court also agreed that a shirt that looked from the front like a prison-issued garment was particularly inappropriate in a community that had recently experienced a violent home invasion by an escaped prisoner.

The new ruling is a step in the right direction, but employers should be cautious about managing employee clothing. The NLRB has ignored circuit court rulings that opposed them in the past. Until the Supreme Court weighs in on the matter, employers who choose to lock horns with the NBLR should be prepared to take their battle to court.
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A question regarding whether or not prayer is appropriate in public schools has led to a lawsuit in Indiana. Jim and Nicole Bellar, along with their son who is identified as J.B., filed the lawsuit in the U.S. District Court in Hammond. The complaint alleges that the school violates the First Amendment rights of J.B. and other students by praying before various events.

team%20huddle.pray%2011360771-001.jpgJ.B. is a sophomore at River Forest Jr./Sr. High School in Hammond. The school is administrated by the River Forest Community School Corp., and prayers are allegedly a regular practice at school events. The Bellars say that J.B. has been forced to pray before participating in various sporting events. Prayers were also conducted at the graduation ceremony where J.B.’s older sister was graduated last year. The Bellars regularly attend the school district’s board meetings, and prayers are said before each session.

According to the Bellars the prayers all invoke God or Jesus Christ and are decisively Christian in nature. J.B. complained to his football coach about being asked to pray before games. The student was told to simply stay quiet during the prayers and was also instructed that he had to remained huddled with his teammates.

When that protest fell on deaf ears, J.B. and his father went to the district’s athletics director. Eventually they took their complaint to the principal and district leaders, all to no avail. At one point J.B. was told by administrators that he should improve his cooperation with the requests of his coaches.

The Indiana ACLU stepped in to assist the Bellar’s quest. While administrators turned a blind eye to the requests of the Bellar family to discontinue the prayers, it is unlikely that they can similarly ignore a lawsuit in the U.S. District Court.

If the Bellars prevail with the lawsuit, then the school district will be forced to give up its practice of holding prayers before events. They may also be asked to pay nominal damages and compensatory damages to the plaintiffs. As ACLU attorney Gavin Rose says, the prayers “represent a serious and flagrant affront to the First Amendment.”

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The National Labor Relations Board made a landmark decision recently, when it ruled that employees have the right to use their employer’s email system to send communications regarding union organizing.

Email%20%2081091615-001.jpgThe decision came in response to a matter involving Purple Communications of Rocklin, California. Company policy forbade employees from using the email system for “activities on behalf of organizations or persons with no professional or business affiliation” with Purple Communications.

A union was attempting to organize certain employees within Purple Communications. They filed a protest over election results at a couple of the company’s worksites because the restrictive email policy prevented employees from freely conversing about the election. Union organizers also filed a complaint of unfair labor practices because employees were being restricted from engaging in a legally protected activity. An administrative law judge initially found in favor of Purple Communications, but the union organizers decided to appeal that decision.

The board reversed its decision, finding that employees who have already been granted access to a workplace email system do have the right to use that system for protected communications relating to matters about working conditions and union organizing as long as such communications were made during non-working hours. Nonetheless, companies may still have the right to restrict such emails if they can show that such a ban is necessary for disciplinary reasons or to maintain production activities.

Holding that communication is a basic building block of legal organization efforts, the board effectively reversed earlier decisions. Members of the board agreed that email is ubiquitous in the modern workplace and that it is essentially a “gathering place” for employees to discuss their rights and working conditions.

The board notes that employers still maintain the right to monitor emails to meet management objectives. Moreover, the ruling does not apply to employees who do not ordinarily have access to the company’s email system or to third parties, like union organizers, who request such access. This new decision may make it necessary for employers to make amendments to existing email policies so as not to run afoul of this new precedent.
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The ACLU and PETA have settled a lawsuit with an Ohio school district that fired an employee over a Facebook post. Keith Allison, a Title I tutor in the Green Local School District of Smithville, was terminated from his position in August of 2014. Now he has been reinstated and granted all back pay from the months he spent without a job.

Freedom%20of%20Speech%2045907452-001.jpgThe trouble began in August of 2014 when Allison complained about the treatment of cows on dairy farms. He did so on his Facebook page, using his home computer and working on his own time. The post included a photo of a dairy farm, but did not identify the farm or the landowner.

The school district felt that the post would offend the farmer. They acted quickly, terminating Allison. He complained to PETA, and the organization passed the issue along to the ACLU. After agreeing to represent Allison, the ACLU filed a lawsuit on his behalf. In the complaint the ACLU points out that teachers do not sacrifice their right to free speech simply because they work for a public school district. There was nothing illegal in Allison’s posting. Moreover, he had not used school equipment to create the post and he was not on school district time.

The parties have now settled the matter without going to trial. It took several months, but eventually the school district agreed to pay the salary owed to Allison as well as outstanding pension contributions. The district will also pay for the legal expenses of the ACLU and PETA.

In addition, the school district has issued a statement affirming the right of teachers to express their opinions on matters of public concern, demonstrating to the children they educate that voicing a protest is a necessary component of a free nation.

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In January of 2015, the Florida State Court of Appeals delivered a ruling that may prove to be a landmark. Within the context of a personal injury case, the court ruled that social media posts made by the plaintiff were discoverable even though maximum privacy settings were used.

Social%20Media%20Magnified%2044298834-001.jpgThe plaintiff was shopping at a Florida Target store when she allegedly suffered a serious slip and fall. She claimed that her ability to enjoy life was forever diminished. Moreover, she was asking the corporation to compensate her for lost earnings. In the course of the lawsuit, lawyers for Target attempted to review the plaintiff’s Facebook account. She had set her privacy settings at the highest standard. Nonetheless, attorneys could see that she had posted more than 1,000 photographs since the time of her injury.

Attorneys for Target filed discovery demands with the plaintiff’s attorney, seeking an opportunity to view the photographs. The plaintiff objected, believing that such discovery violated her rights to privacy. The court of appeals did not agree.

Judges at the court released an 11 page opinion regarding their decision to allow discovery of the social media photographs. They argued that the images might be “powerfully relevant to the damage issues in the lawsuit.” Moreover, they argued that, “there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media.” In the court’s decision, it was also pointed out that even the owners of Facebook make no guarantees regarding the privacy of its users. In fact, it is possible for friends on the social media website to copy images and redistribute them however they wish. Accordingly, the plaintiff cannot expect to keep those pictures private in the face of a discovery demand.

This particular personal injury matter is still pending in the Florida court system. However, this ruling by the appeals court sets a powerful precedent for all civil and criminal matters in Florida going forward. It will likely become easier than ever for attorneys to gain access to social media accounts as they conduct legal research.

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The Fremont (Michigan) Public Schools District is the subject of a new lawsuit. Fremont High School teacher Scott Herlein filed it after being terminated. Herlein maintains that the district violated his First Amendment rights and his rights under the state’s Whistleblower Protection Act.

Whistleblower%206928551-001.jpgThe story began on March 4 when Herlein was supervising a classroom of junior year students. The students were taking the ACT, which is required as a portion of the Michigan Merit Exam. For the math section of the ACT students are permitted to use calculators. While some students use their own calculators, others use calculators that are provided by the school.

During the course of the test, Herlein noticed that the students who were using the school issued calculators had access to ACT help files. The files had been preloaded onto the calculators by the school to help students prepare for the exam. Believing the files to be nothing other than cheat sheets, Herlein reported the use of the files to the district on March 6.

The Michigan Department of Education investigated the claims. By May 14, the investigation was over, and the department found that the school may have violated the spirit of the law, but engaged in no real wrongdoing. A loophole in ACT regulations states that files may not be erased from calculators used during the exam. Although this violates state policy, it is difficult for the department to find otherwise since the ACT would not have permitted deleting those files. About two weeks after the conclusion of the investigation, Herlein was terminated.

Since then, a new district superintendent has taken over. Herlein’s lawsuit names the former superintendent and each board member individually. The details of Herlein’s termination were not made immediately clear by the complaint. In fact, the current superintendent notes that Herlein remains employed and on the payroll of the district pending an upcoming tenure hearing.

Further filings in the lawsuit should prove revelatory regarding the conditions of Herlein’s termination. He has already disclosed that he was “interrogated” by investigators on May 5, and was forced to admit that he was the whistleblower.

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As various social media formats and blogs continue to evolve, the definition of free speech may also evolve. That seems to be the case with a former Bucks County, Pennsylvania English teacher who sued her former employer.

Grades%20on%20a%20chalkboard%2033883975-001.jpgThe situation began in 2011, when teacher Natalie Munroe began blowing off steam through her personal blog. She routinely made attacks on her students, whom she did not name, in the blog. Using descriptors like “utterly loathsome,” “frightfully dim” and “jerk.”

Before long, links to her blog were being floated around parents and students in Central Bucks School District. Despite receiving positive teacher evaluations in 2008, Munroe found herself being put on a disciplinary work plan because of the furor her blog posts caused. Subsequent evaluations were poor, and Munroe was terminated.

Munroe and her attorney claim that the work plan and the poor evaluations were retaliation for the blog posts. Further, they claimed that the posts should have been protected as free speech under the First Amendment.

A recent decision handed down by U.S. District Judge Cynthia Rufe disagrees with the plaintiff’s assertions. Judge Rufe used a time-tested standard for determining whether or not the blog posts were protected speech. She noted that Munroe was a public employee who may be held to a different standard when disparaging their employer. Ultimately, Judge Rufe said that the blog posts caused a significant disruption at the school and within the district. This disruption made it difficult for the district to carry on its essential function to educate students. Accordingly, Munroe’s blog posts were not protected speech.

Because of the judge’s ruling, this case will not be proceeding to trial. Legal scholars warn that anyone who is employed by a public entity should be exceedingly careful about their social media presence. In most instances, it’s best not to blog or otherwise post comments about a public employer, coworkers or recipients of the services provided by government entities. Doing so may put the blogger’s job in jeopardy, and there is a very good chance that a court will agree that the employer was within their rights.
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A Southwest Airlines traveler is expressing his displeasure after he was temporarily removed from a flight for tweeting about a gate agent. Duff Watson was traveling between Denver and Minneapolis with his children, aged 6 and 9. Watson was a Southwest Airlines A list traveler, a status that granted him priority seating.

Social%20Media%20Magnified%2044298834-001.jpgWatson prepared to board the plane with his children, only to be told by a gate agent that while his A list status entitled him to early boarding privileges, his children were exempt. As a regular Southwest customer, Watson says the decision mystified him. He had been able to have priority boarding with his children on the airline on several past occasions. When the agent denied him the ability to board in the A group with his children, Watson told her that he was going to tweet about the incident.

“RUDEST AGENT IN DENVER. KIMBERLY S. GATE C39. NOT HAPPY @SWA,” was Watson’s all caps posting. He boarded the plane with his children, only to hear his name being called over the loudspeaker. They were being asked to leave the plane.

The gate agent said she felt threatened by the use of her name and location in the tweet. She requested that Watson delete the tweet before he and his children would be allowed to board the plane. Watson eventually complied after a supervisor was called in to handle the situation. However, the damage was already done.

The story has been reported in many media outlets with the deleted tweet being read more times than it might have been otherwise. Watson vows never to fly Southwest again. In a statement, the airline notes that a “customer was briefly removed from flight #2347 … to resolve the conversation outside of the aircraft and away from the other Passengers.” The statement goes on to say that Watson was not removed from the plane only because of the tweet.

Southwest will not be releasing details about what, if any, disciplinary actions were taken against the gate agent. Vouchers were provided to all three travelers, but it seems unlikely that they will be used.

While no lawsuit has been threatened or filed, time will tell if this incident will lead to another in the evergrowing number of social media lawsuits.

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An offhand, two word social media post has ignited controversy in Minnesota. Reid Sagehorn, who at the time of the post was a 17 year-old senior at Rogers High School in Rogers, Minnesota, responded to a Twitter post with a flippant comment. Though it took only seconds to post it, the fallout has lasted for months and has now become the subject of a lawsuit.

Social%20Media%2037877338-001.jpgIn January of 2014, Sagehorn was asked by an anonymous Twitter user whether or not he had ever made out with a 28 year-old physical education teacher at Rogers High School. Sagehorn replied, “Actually,yes.” Although he insists the comment was made in jest, school district officials took it seriously. Charging that his remark damaged the reputation of the teacher, the principal at Rogers High suspended Sagehorn for five days. Another five days were later tacked on before even more days were added, resulting in a suspension of about seven weeks.

The local police also got involved in the melee. They opened a criminal defamation investigation against Sagehorn. Although no charges were ultimately filed, Sagehorn contends that the felony investigation further harmed his reputation.

While enrolled at Rogers High School, Sagehorn was a member of the National Honor Society and a star athlete. He was in the midst of his senior year when the Twitter controversy began. Overcome with humiliation, Sagehorn withdrew from Rogers and graduated from another local high school. Nonetheless, the fallout from the suspension and the investigation by police continues to haunt him.

That’s why Sagehorn recently filed a lawsuit that names various school district and police officials as defendants. The lawsuit seeks damages for the harm done to Sagehorn’s reputation. His lawyers claim in the complaint that Sagehorn’s posting in no way posed a threat to the teacher. Moreover, he made the post on his own time without using any school resources. Accordingly, his lawyers believe his First Amendment rights were violated by the actions of the school and the police. The outcome of this case may well set a precedent for how schools respond to student use of social media.