Articles Posted in Freedom of Speech

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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.

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Last month, a case was settled between a 6th grader and the Minnewaska School District in Minnesota over a Facebook post from 2012. The American Civil Liberties Union of Minnesota defended Riley Stratton, who was punished for a post that she made on her Facebook page.

Social%20Media%20Compass%2054107999-001.jpgHer school forced her to hand over passwords for her Facebook and email accounts. The ACLU won their case after two years, and now the school district must strengthen privacy protections and pay damages.

Riley stated that she was happy that the case was finally settled, and that her school has to change its rules so that other students don’t have to go through what she went through. “It was so embarrassing and hard on me to go through, but I hope that schools all over see what happened and don’t punish other students the way I was punished,” she said after the settlement.

Stratton was repeatedly punished for a comment that she made on her Facebook page while at home about a faculty member at her school. Her Facebook was then searched by school officials with police present because a conversation about sex with a boy was also investigated on her Facebook. After the ordeal, Riley no longer wanted to attend school.

The school district must now change its policies and pay $70,000 to Riley and the ACLU-MN to cover court costs and support other ACLU-MN efforts in the future. The case is certainly a lesson for school districts in every part of the country as many have changed their policies regarding social media and students.

From the ACLU press release: “We are pleased with the settlement and hope this sends a clear message to other schools that is bad policy to police students’ behavior on social media,” said Charles Samuelson, who is the Executive Director of the ACLU-MN. “There may be times when it is appropriate for schools to intervene, but only in extreme circumstances when there are true threats or safety risks.”

The school district’s new policy will work to protect students’ privacy while also training staff members to ensure that correct procedure is followed.

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A Massachusetts high school student who landed in hot water after posting a profane tweet has successfully enlisted the ACLU to intervene on his behalf. The student, Nick Barbieri, is a senior at North Attleboro High School. His school sent a tweet in early February that informed students of a class cancellation because of inclement weather. The tweet ended with a “See you in June,” which Barbieri seems to have interpreted as a sarcastic tagline referring to the makeup day that would be required in June.

Barbieri responded with a tweet of his own that read, “F— off.” It wasn’t long before school officials were calling his home and demanding that the tweet be deleted. The student complied, and assumed that the situation was at an end.

However, when school resumed, Barbieri found himself being pulled out of class multiple times to discuss the situation and the punishment that the school was contemplating. Barbieri faced a minimum six hours of detention, and may have been subject to suspension.

He took to Twitter once again, sending messages about the school’s response and the pending punishment. North Attleboro High responded by asking him to delete these tweets as well. Frustrated, Barbieri finally sent a tweet directed to the ACLU, asking that they help him to protect his right to free speech as it is guaranteed by the First Amendment.

Stepping in quickly, an ACLU lawyer drafted a letter (available HERE) to school officials that asked them to reconsider their approach to the situation. The letter pointed out that the school did not have the right to punish a student for his remarks while off school property, even if those remarks related to the school. Moreover, the letter suggested that the school actually owed Barbieri an apology for seeking to punish him for speaking his mind.

The letter worked. North Attleboro High reversed its decision to punish Barbieri for the tweet, and his record has been cleared. Barbieri remains philosophical, noting that social media is unexplored territory for many, and that schools will have to deal with the fact that tweeting invites comments from others.

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Controversy over the separation of church and state is brewing in Montana. The trouble began when two high schools were invited to perform at a Christmas event taking place at a Kalispell Church of Jesus Christ of Latter-day Saints. It’s a two day event featuring several music acts and a display of nativities.

Choir%20Christmas%2036334519-001.jpgThe schools accepted the invitation as it gave students an opportunity to participate in a community event and gain extra performance experience. However, two organizations have taken exception to the involvement of the schools. The Freedom from Religion Foundation has sent a letter to the schools, asking that they cancel the scheduled performances. A similar request was made by the American Civil Liberties Union of Montana. Both organizations feel that the participation of public school choirs at the event constitutes an endorsement of a religion.

At attorney for the Freedom from Religion Foundation calls the celebration “a worship service” and likens the performance to singing in the church choir. The superintendent for Kalispell Public Schools argues that no sponsorship of religious beliefs will be implied by the performances. Instead, the district views this as an opportunity for the students to perform in a public venue.

Another point of contention for the protestors is whether or not the students are essentially being coerced into the performance. While district officials state that students always have the choice to opt out of certain activities based on religious beliefs, the Freedom from Religion Foundation and the ACLU insist that in this instance, this is not a choice students should have to face. They cite the enormous pressure teens commonly feel to fit in, saying that most students will go along with the performance even if it violates their beliefs so that they won’t be seen as troublemakers.

Despite the letters of protest, the school district seems determined to continue with the plan for the choirs to participate in the event. They seem to be taking the protests in stride, arguing that the festival is a public event that many people attend for artistic reasons rather than out of any religious convictions.

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Eighth grade student Skylar Davis was recently suspended for wearing a purse to his classes at Anderson County Senior-Junior School. Davis had been wearing the Vera Bradley bag everyday since the beginning of the school year in August. Yet, in November, the Kansas student was asked to remove the purse.

Rules%20Compliance%2053450701-001.jpgDavis refused, and was sent to the office. There, Assistant Principal Don Hillard repeated the request to remove the bag. Davis continued to refuse, citing that other students are permitted to carry purses and bags to class. He felt that the request that he remove the purse was discriminatory.

Hillard suspended Davis. In disbelief, Davis’ mother, Leslie Willis, called the school to verify the reason for her son’s suspension. When she learned that the suspension sprang solely from Davis’ refusal to remove the bag, Willis decided to review the student handbook. She could find no references to purses or bags in the document. Accordingly, Willis also felt that the request for Davis to leave the purse in his locker was discriminatory in nature.

While Willis could find no entry in the student handbook that prohibits carrying bags and purses into classrooms, the Facebook page for School District 365, of which Anderson County Senior-Junior School is a part, states that school policy prevents students from carrying bags or purses into the room for certain core classes. Bags are supposed to be stowed in the student’s locker when they are in class. If the student brings a bag to class, they may be asked to take it to their locker. The district says that this rule has been in place for several years.

It appears that Davis disagrees, noting that many female students carry purses into classrooms. The situation suggests that perhaps the rule against bags in the classroom has not been uniformly enforced in the past. Perhaps the suspension and subsequent media attention will cause the school to revisit its bag policy, applying it equally to all students or abolishing the prohibition entirely. For now, Davis is back in class, and it remains unclear how the situation will ultimately be resolved.

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A non-profit organization and a group of Kansas parents are suing over new public school science standards. Citizens for Objective Public Education, an anti-evolution advocacy organization, and Christian parents whose children attend public schools in Kansas filed a lawsuit to prevent the adoption of the new science standards. Plaintiffs state that if the new science programs are implemented, they will promote atheism and violate First Amendment rights.

Science%20%26%20Universe%2047054434-001.jpgThe new scientific teaching standards are the result of an effort between more than 20 states, including Kansas, and the National Research Council. In the program, students would be introduced to concepts like evolution as early as kindergarten. Additionally, emphasis would be placed on projects and experiments as opposed to readings and lectures. The effort is aimed at getting kids interested in science.

However, the Citizens for Objective Public Education and their attorney, John Calvert, feel that there is another agenda operating below the surface. Calvert seems to feel that the agenda is an insidious one, having been quoted as saying that, “By the time you get into the third grade, you learn all the essential elements of Darwinian evolution … By the time you’re in middle school, you’re a Darwinist.” In his complaint, Calvert asserts that the science program pushes a “non-theistic religious worldview” on impressionable students without allowing room for alternative theories. According to Calvert, this violates First Amendment rights of both parents and students.

Joshua Rosenau, a representative of the National Center for Science Education, calls the lawsuit “silly,” going on to note that the plaintiffs are “trying to say anything that’s not promoting their religion is promoting some other religion.”

This is not the first time that scientific standards in Kansas public schools have come under fire. In fact, the state has adopted no fewer than six different sets of science standards in a 15 year period. The content of the standards changes as the relative liberalism or conservatism of local politicians changes. Although the current situation remains unresolved, it seems clear that this is just another step in the process toward finding scientific curriculum that adequately addresses student needs.
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Last week we reviewed a Butler Medical Transport firing based on a Facebook post which was ruled illegal by an Administrative Law Judge. This week we read about a different outcome for a different Butler employee allegedly fired due to his Facebook post.

Facebook%20up%20and%20down%2047059270-001.jpgIn this case, Michael Rice created a Facebook post stating that he was “broke down” for the second time in two weeks because the company was unwilling to replace malfunctioning equipment. Butler terminated Rice over the post, and was able to produce maintenance records to the Administrative Law Judge that proved that Rice’s vehicle had been in working order at the time of the post. In addition, Rice had testified at an earlier unemployment insurance hearing that his post had referred to a private vehicle rather than a Butler vehicle. These facts induced the judge to find that Rice’s termination was not illegal. As the post was maliciously untrue and since Rice knew it to be untrue at the time of the posting, the board found in favor of Butler.

The use of social networking sites by employees continues to be a matter of concern for employers. Increasingly, social sites have the power to make or break a company’s reputation, making it vital to draft thoughtful (and legal) policies regarding what employees may and may not post regarding their work situation.

The problems Butler Medical Transport encountered with employee Facebook posts might have been avoided had they crafted policies that accurately stipulated what was and was not acceptable online behavior. Butler utilized an informal bulleted list of “work rules” that barred employees “from using social networking sights [sic] which could discredit Butler … or damage its image.” An Administrative Law Judge at the National Labor Relations Board felt that the list constituted official company policy although Butler argued otherwise. The judge pointed out that Butler had relied on the bulleted list to terminate two employees in relation to their Facebook posts. Accordingly, this list has the effect of being official company policy.

Butler’s failure to successfully argue that their informal list was not company policy is a cautionary tale to other employers. When a workplace rule is written down, communicated to employees and may result in disciplinary action if it is broken, then it is official policy and a judge may treat it as such. Clearly, any company rules, policies or guidelines dealing with social media need to be drafted with care and reviewed by legal counsel before being put into effect. Doing so can save a lot of headaches and clears the way for the employer to focus on generating profits rather than policing employee Facebook posts.
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The question of whether or not an employee’s Facebook posts are protected speech recently came into play with two termination proceedings brought before the National Labor Relations Board. Although both employees made Facebook posts and were subsequently fired as a result of those posts, the presiding Administrative Law Judge reached two very different conclusions.

Facebook%20up%20and%20down%2047059270-001.jpgIn the first instance, emergency medical technician William Norvell was working for Butler Medical Transport. While off duty and using a personal computer in his home, Norvell logged in to his Facebook account only to read a post from a fellow employee that stated she had been terminated. The terminated employee went on to write that she felt the firing stemmed from an incident during which she had complained to a patient about the state of repair of the ambulance in which they were riding. Other Butler employees weighed in on the subject, with Norvell commenting that the former employee might consider “getting a lawyer and taking them to court.” Later, Norvell also suggested that the ousted employee could contact the labor board.

Management at Butler obtained hard copies of these Facebook posts, using them ultimately to terminate Norvell. At the time of his firing, Norvell was told his posts were in violation of the company’s work rules. This bullet point list included an entry that forbade employees from harming Butler’s image in a public manner, such as through social media posts.

The Administrative Law Judge found that the firing was illegal and that Norvell’s postings fell under the category of protected concerted activity. Because the posts were not reckless or maliciously false, Butler could not legally terminate Norvell for writing them. Instead, he had been discussing a matter that concerned all Butler employees, an activity protected under the NLRA.

In our next post, read about another Butler employee who received a very different outcome from the judge after his “Facebook firing”.

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A Michigan school district that is being sued by a former elementary school principal is seeking to have the case dismissed in order to avoid having the matter go to trial. Tracy Sahouri, who was once employed as the principal at Creekside Elementary School, filed the lawsuit against her former employer in April of 2012. The legal action is centered around the manner in which Michigan Educational Assessment Program tests were administered at the school in 2011.

Whistleblower%206928551-001.jpgIn court filings, Sahouri alleges that she brought to light several irregularities regarding the administration of the standardized tests in the district. Specifically, she alleges that Creekside teachers had gained inappropriate access to the writing section of the test prior to the tests being given to students. Sahouri felt that her actions should have been protected under the federal government’s Whistleblower Protection Act.

The act’s essential purpose is to prevent the unlawful or unwarranted dismissal of employees who publicly expose wrongdoing. Accordingly, Sahouri believed that her actions should have protected her against being discharged for reasons connected to the whistleblowing. However, when it was time for Sahouri’s contract as a principal to be renewed, the board of education unanimously voted that the renewal should not go through.

The district alleged that it was Sahouri who mishandled the tests, and that it was investigators from the district who ultimately uncovered the irregularities. Accordingly, the district reassigned Sahouri, who was then working as a high school vice principal, as a special education teacher and Sahouri filed suit.

In May of 2013, an independent panel recommended that the school district offer Sahouri a $525,000 settlement. The district refused to make such a settlement offer, and is now moving to have the case summarily dismissed instead.

Sahouri and her attorney remain adamant about the merits of their case and their willingness to go to trial. The lawsuit includes claims for slander, libel and invasion of privacy, all relating to the school district’s making information about the matter available to the media. A formal hearing on September 23 will determine whether or not the lawsuit moves forward.