A reconsideration of the values of the First Amendment is required now that a few companies dominate the Internet, according to the Columbia Journalism Review. How the First Amendment must evolve to keep up with the intervention of the Internet was the subject of a May 1 symposium held at Columbia University called Disrupted: Speech and Democracy in the Digital Age. Read more at the Columbia Journalism Review.
In April, the U.S. Department of Labor (DOL) issued a new rule – commonly known as the fiduciary rule – to protect workers saving for retirement from conflicted advice from their financial advisers. The U.S. Chamber of Commerce, the American Council of Life Insurers and a host of other corporate interests subsequently sued the DOL. One of their claims is that the rule is a content-based restriction on the commercial speech of their members and violates the First Amendment.
Today, Public Citizen filed an amicus brief (PDF) in support of the DOL in the U.S. District Court for the Northern District of Texas. The brief argues that industry’s First Amendment argument should be rejected because the fiduciary rule does not regulate speech; rather, it regulates the terms of a commercial or professional relationship and duties that attach to it.
The brief also demonstrates that even if the rule were a content-based commercial speech regulation, a long line of U.S. Supreme Court precedent, confirmed by recent decisions, demonstrates that regulation of commercial speech is not subject to strict scrutiny, even if the regulation differentiates between content of different types of speech. The rule should be upheld, Public Citizen argues.
Public Citizen has become increasingly concerned that corporate and commercial interests are promoting stringent applications of commercial-speech doctrine to stifle legitimate economic regulatory measures and protections for consumers. The plaintiffs’ position that strict scrutiny applies to content-based commercial speech regulations, if accepted by the court, would wrongly tilt the First Amendment balance against vital public safeguards.
The 1st Circuit Court of Appeals upheld a Federal Trade Commission (FTC) ruling against the creator of Jerk.com for misrepresenting that information on its site was generated by users, when it was actually scraped from the data of more than 70 million Facebook users.
The site also deceived users into believing that they could publicly dispute or remove negative information posted about them by purchasing a $30 membership.
Profiles generated by software, not users
The company’s founder, John Fanning, the former co-founder of Napster.com, launched Jerk.com – “a self-proclaimed reputation management website” in 2009. The site falsely claimed that users or an acquaintance of a person, made profile pages where users could vote on whether someone was a “jerk” or “not a jerk” or post anonymous reviews about the person.
However, the profiles on the site were not posted by willing users, but rather a software that scraped Facebook accounts for names, photos and other data to fabricate profiles on the website.
The website contained between 73.4 and 81.6 million unique profiles. For individuals finding their profile on the site, the company offered a “Remove Me!” page which allowed them to “manage [their] reputation and resolve disputes” through a $30 subscription.
The site also charged subscribers a $25 customer service fee to contact or email the website. Subscribers believed the membership would allow them to alter, dispute, or delete their Jerk.com profile, but in many instances “received nothing in return.”
The company’s customer service department ignored requests to remove photos and other profile information.
After hundreds of complaints were filed with the FTC, the commission issued an administrative complaint against Jerk.com alleging it falsely represented the material on the site was generated by users and that it deceived users into believing purchasing membership would provide the ability to dispute or remove information from the website.
The complaint also alleged that Fanning was individually liable because he “participated in the deceptive conduct and controlled the acts and practices” of Jerk.com.
The FTC granted summary judgement against Jerk.com and Fanning in violation of federal law prohibiting deceptive practices affecting commerce. The commission issued an order enjoining Jerk.com and Fanning from misrepresenting the source of any personal information or content on the website or from misrepresenting the benefits of joining any service.
The order also required him to “maintain” and “make available” “advertisements and promotional materials containing any representation covered by [the] order” for a period of five years.
The order further required Fanning to notify the commission of any new business affiliation or employment and submit the business address for the next 10 years.
Creator appealed FTC order
Fanning appealed the order to the 1st Circuit Court of Appeals. The court agreed with the FTC, finding that Fanning and Jerk.com implicitly misrepresented that the websites content was user generated, and expressly represented that a $30 membership would allow users to contest and remove negative reviews about themselves.
The court, further agreeing with the FTC ruling, rejected Fanning’s argument on appeal that the injunction violated his First Amendment free speech protection, writing that the First Amendment “does not protect misleading commercial speech.”
The court also upheld the 5-year record keeping provisions, finding it “reasonably related to Fanning’s FTC violations.” The court also made note that Fanning started a similar website “Reper” while running Jerk.com, writing that the east with which the deceptive practices “could be transferred to other websites weighs in favor of requiring Fanning to comply with some reporting requirements.”
However, the court found the 10-year compliance monitoring provision imposed on Fanning was overbroad. Without any guidance from the commission on the inclusion of the provision, other than its traditional practice of requiring such reporting in other cases, the court deemed the provision not reasonably related to Fanning’s violation and vacated the requirement.
The case is John Fanning v. Federal Trade Commission, case number 15-1520, in the United States Court of Appeals for the First Circuit.
June 27, 2016 – Today, the Supreme Court of the United States issued its decision in Whole Woman’s Health v. Hellerstedt, which involved a challenge to two restrictive provisions of a Texas law (HB2) that required abortion practitioners to have admitting privileges at a hospital within a 30 miles radius, and that also required abortion facilities to meet strict ambulatory-surgical-center standards.
“Today’s Supreme Court decision vindicates the rights of people seeking access to the critical services provided by reproductive health centers,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law.
“The ruling has particular implications for African-American, Latino and other women of color, who are more likely to rely on the important services provided by abortion centers. The court’s ruling makes clear that states expose themselves to liability when they seek to gut the protections of Roe v. Wade by imposing burdensome and unnecessary restrictions that unfairly deny access to abortion clinics and reproductive health service providers.”
The court’s ruling means that dozens of licensed abortion facilities across the state of Texas can now reopen. Prior to the enactment of H.B. 2, there were more than 40 licensed abortion facilities in Texas, and the number dropped significantly in the wake of the restrictions in this case. As Justice Ginsburg cautions in her concurrence, “[w]hen a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux (for want of a better alternative), at great risk to their health and safety.”
African-American women in the state of Texas comprise a disproportionate number of those women seeking abortions in Texas. As recently as 2012, about 25 percent of the abortions performed in Texas were obtained by black women—though they represent only 13.1 percent of Texas women of reproductive age. In addition, African-American women in Texas are more likely to be uninsured and thus, rely significantly on the wide range of basic health services provided by reproductive health clinics.
Lawyers’ Committee for Civil Rights Under Law
The Lawyers’ Committee, a nonpartisan, nonprofit organization, was formed in 1963 at the request of President John F. Kennedy to involve the private bar in providing legal services to address racial discrimination. The Lawyers’ Committee celebrated its 50th anniversary in 2013 and continues its quest of “Moving America Toward Justice.” The principal mission of the Lawyers’ Committee is to secure, through the rule of law, equal justice under law, particularly in the areas of fair housing and fair lending, community development, employment, voting, education and environmental justice. For more information about the Lawyers’ Committee, visit www.lawyerscommittee.org
A California lawyer is determined to find out the identity of those leaving anonymous negative reviews about his law firm on the job listing website Glassdoor.com. Alleging the reviews are defamatory, the name partner of California law firm Layfield & Barrett is fed up with authors claiming to be current and former employees of the firm.
Spitting Venom Anonymously
Attorney Philip Layfield filed a defamation case last month in Los Angeles County Superior Court against 25 “John Does” over anonymous Glassdoor reviews. Layfield believes former employees who “spew false information” and “spit their venom” on websites such as Glassdoor.com should have to answer for their conduct. Layfield and the firm also subpoenaed the website for identifying information about the authors of 12 different posts.
One reviewer wrote, “For the love of God, do NOT work here.” Another reviewer said working at the firm was “psychological torture.”
Layfield filed the subpoena because, in order to move forward with his defamation claims, he must know the identity of the reviewers. Layfield’s subpoena requested all documents that “state, list, describe, or refer to identifying information” related to the people who authored the posts. Glassdoor is not a defendant to the defamation claims, likely attributable to Section 230 of the Communications Decency Act. Under the Act, interactive online services are immunized from liability stemming from content uploaded by site users.
“People need to realize that just because you are sitting anonymously behind a keyboard, you can’t break the law,” Layfield said. “We are going to obtain the identities of these cowards and bring them to justice.” Glassdoor disagrees, however due to its standard practice “to fight on our users’ behalf to protect their anonymity and rights to free speech.”
First Amendment Protection
Generally, people have a First Amendment right to speak anonymously. People can count on anonymity as long as they don’t do things to lose First Amendment protection. The First Amendment doesn’t shelter people who engage in cyberbullying, reveal trade secrets, or make threats.
Layfield said in a statement,
“With respect to the lawsuit filed, here is the reality. Our law firm has approximately 150 employees and 35 attorneys. We demand the best of the best. Many people lie about their skills, their experience and their desire to be the best when they interview. We pay top dollar for candidates and many of our attorneys earn in excess of $1 million per year. When people are lazy or incompetent, they either quit because the writing is on the wall or they are terminated. Unfortunately, most of those people are unwilling to recognize their shortcomings and they turn to anonymous blogs to spit their venom. The reality is that they should be upset with their parents for raising lazy and incompetent young adults, but they choose to spew false information on blogs such as Glassdoor. The majority of these posts contain blatantly false information. We are going to obtain the identities of these cowards and bring them to justice.”
Unfortunately for Layfield, a majority of the reviews on Glassdoor are just opinions, which are not enough to support a defamation claim. One review, which comes close to defamation, alleges that Layfield is unethical. Without more, however – such as citing a specific provision of the ethics code – even this comment will likely be construed as an opinion.
Layfield’s suit will thus likely be riddled with obstacles.
Things haven’t been good lately for the widely-popular burrito chain Chipotle. From ongoing e-coli outbreaks to a sexual discrimination suit earlier this year, the Mexican grill is now facing violations of Section 8(a)(1) of the National Labor Relations Association (NLRA).
An administrative law judge deemed Chipotle’s social media policy illegal and is requiring the chain rehire a Philadelphia-area employee who was terminated after criticizing the company on Twitter last year.
Plaintiff James Kennedy was reprimanded for posting on Twitter against a “free burrito” promotion and was dismissed two weeks later, when he was found collecting signatures petitioning for the mandated breaks owed during employees’ shifts. Kennedy’s tweet, sent in response to a free burrito giveaway, read: “@ChipotleTweets, nothing is free, only cheap #labor. Crew members make only $8.50hr. How much is that steak bowl really?”
The company was ordered to cease prohibiting employees from posting on social media regarding employees’ wages or other terms or conditions of employment.
Chipotle’s social media strategist emailed the regional manager for the Haverford, Pennsylvania location, forwarding the tweet. The next day, the restaurant’s general manager approached the Kennedy in the kitchen and said she wanted to talk to him in the dining room. They went out and sat with the regional manager, who asked the employee if he was familiar with the company’s social media policy. Under pressure, Kennedy ultimately agreed to delete the tweet, which he did later that day.
The Chipotle social media policy at issue states, “If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information. You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”
Judge Susan Flynn not only struck down Chipotle’s social media policy as violating labor laws, she also ordered the burrito chain to post signs acknowledging that some of its employee policies – especially the social media rules – were illegal. Kennedy’s manager testified at the hearing that she fired Kennedy, a war veteran, because she was concerned he would become violent with her after arguing about his right to collect signatures on the meal break petition.
Employers may not prohibit social media postings of false, misleading, incomplete, disparaging or inaccurate information, according to the ruling in Lafayette Park Hotel. In order to lose the NLRA’s protection, employers must demonstrate that the employee had a malicious motive in posting the material. If employers choose to retain policies regarding “confidential” company information, the word “confidential” must be defined within the employer’s policy. Otherwise, this prohibition will be deemed a violation of Section 7.
The bottom line: Kennedy’s tweet was protected concerted activity because they had the purpose of “educating the public and creating sympathy and support” for hourly workers in general and Chipotle’s workers in specific. The tweet did not pertain to wholly personal issues relevant only to the employee but were truly group complaints and were therefore protected.
Kennedy, whom Chipotle has been ordered to reinstate and pay back wages, said he’d happily accept his back wages in the form of free Chipotle food vouchers. “You cannot deny that their food is delicious, but their labor policies were atrocious,” Kennedy said.
The case is Chipotle Services LLC dba Chipotle Mexican Grill (March 14, 2016).
The North Carolina “Public Facilities Privacy & Security Act,” or House Bill 2 (“HB2”) is arguably the most anti-LGBT statute that has ever been passed in the United States of America. But HB2 is about more than just adding limits on what local government entities can do regarding public bathroom usage.
News coverage of HB2, which has largely been referred to as a “bathroom bill,” lacks an important understanding of a detrimental change in employment discrimination law that accompanies the bill’s passage. As Charlotte School of Law Professor Brian Clarke points out, most articles about the passage of HB2 omit “a hugely significant issue, the bill’s complete elimination of the ability of NC employees to sue employers under state law for employment discrimination based on the protected categories of race, sex, national origin, religion, color, or age.”
Prohibits the right to sue for discrimination
Clarke, who has practiced employment law for more than 11 years and published significant research in the field believes, “The single sentence that accomplished this feat overturned decades of well-established North Carolina law, eliminated a critical legal protection for all employees in North Carolina, and – of course – is utterly unrelated to bathroom usage.”
Clarke is referring to Part III of HB2 (143-422.2), or the North Carolina Equal Employment Practices Act. Section 422.2 decrees that employment discrimination based on the standard protected classes referred to in Title VII is illegal, but the following section – 422.3 – completely prohibits the right to a cause of action for such discrimination. By its own language, 422.3 overrides the protections of 422.2 by removing its teeth: “This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action . . .” So, in North Carolina, employers may not discriminate against employees; but, if they do, employees have no right to sue.
The North Carolina Equal Employment Practices Act (“EPA”) was originally passed in 1977 and tort of wrongful discharge was recognized in 1982. Wrongful discharge was premised on the language of 422.2, but the passage of HB2 takes away this private right of action North Carolina employees have relied on for more than 30 years. Race, sex, religion, national origin, color, and age are now no longer subject to a private right of action in the state.
Final avenue of justice is gone
The real problem a lot of employees face with employment discrimination suits is that they simply do not know their rights. When employees do not find out their legal rights until after the 180 days to sue allowed for by Title VII, their only recourse is to sue under the EPA for wrongful discharge in violation of public policy. Now, that final avenue of justice is gone. Arguments were made on the House floor by Republican Representative and HB2 co-sponsor Dan Bishop that the EPA was never intended to create a private right of action for employees, but evolved through the common law; according to HB2 sponsors like Bishop, this new language removing the private right of action is meant to “correct” that.
Both the legal community and country as a whole remain shocked at the passage of HB2. Andrew Gordon, President of the LGBT Legal Society in Charlotte believes there have been major abuses of power throughout the un-democratic process of HB2’s passage. “The fact that an ‘emergency session’ was called in response to HB2 is a blatant waste of thousands of taxpayer dollars. There are far more pressing needs in this state; not the least of which is the fact that we rank as one of the worst states in the entire country regarding quality of education, teacher pay, and student spending,” Gordon stated.
Gordon’s mission for the LGBT Legal Society is to bring the legal community’s attention to issues of special concern to LGBT students by serving as a bridge between students, law school alumni, and the legal profession at large.
Revokes anti-discrimination laws
The unfair process Gordon mentions is this: HB2 was not revealed to those required to vote on it until the morning it was to be voted on. HB2 passed both the House and Senate and was signed by Governor McCrory within the short span of 12 hours.
“This process, this bill not only harms LGBT communities and establishes that North Carolina does not tolerate LGBT diversity, it revokes the power of any state locality to establish any anti-discrimination laws. HB2’s passage thereby removes the ability of any city to protect citizens it determines should be protected. Now, after HB2, any discrimination complaint can only be brought to the state’s Human Relations Commission and no civil cause of action exists for a perceived violation of the state’s non-discrimination statute.”
Gordon sums up HB2’s passage by saying, “Our state’s politicians preyed on an irrational fear: that protecting the dignity and civil rights of transgender citizens will somehow also allow predators to molest children and women in bathrooms. As if signs on bathroom doors will ever be enough to prevent predators who would misuse such a protection from harming others. One thing has proven true that the LGBT community assumed from the start: the discrimination politicians have long-attempted to couch in religious freedom has never been about religion at all; it was only ever about legalizing discrimination.”
View House Bill 2 here.
Christie administration’s grant of more than $11 million to divinity schools is unconstitutional, say ACLU-NJ, Americans United and national ACLU
The ACLU of New Jersey will argue Monday, April 11, before the Appellate Division at the Hunterdon County Courthouse that the New Jersey government’s planned distribution of more than $11 million in funding to divinity schools violates the New Jersey Constitution, as well as the New Jersey Law Against Discrimination.
The ACLU-NJ — joined by Americans United for Separation of Church and State, the ACLU Program on Freedom of Religion and Belief, and the ACLU Women’s Rights Project — represents the Unitarian Universalist Legislative Ministry of New Jersey and three New Jersey taxpayers.
In 2013, New Jersey Gov. Chris Christie released a list of 176 college construction projects to be funded by a voter-approved bond, including two divinity schools. Beth Medrash Govoha, which trains an all-male student body in rabbinical studies, was slated to receive $10.6 million. Princeton Theological Seminary was set to receive $645,323. As a result of the lawsuit filed by ACLU-NJ and its allies, the distribution of the funds has been on hold.
WHAT: Arguments before the Appellate Division challenging New Jersey’s distribution of state funding to sectarian religious institutions.
WHEN: Monday, April 11, 2016, at 9:30 a.m.
- Edward Barocas, ACLU-NJ Legal Director, arguing before the court
- Alex Luchenitser, Americans United Associate Legal Director, appearing in court
- The Rev. Craig Hirshberg, Minister with Unitarian Universalist Legislative Ministry of New Jersey, a plaintiff
- Gloria Andersen, plaintiff
- Penny Postel, plaintiff
WHERE: Hunterdon County Court House, 65 Park Avenue, Flemington
Americans perceive law firms behind other industries in hiring and retention practices
Washington, D.C. – Among 11 major industries, law firms are perceived to have the lowest commitment to diversity when it comes to hiring and retention. According to a survey undertaken by leading strategic and research experts McGinn and Company and Repass Research, law firms rank last in these practices in a poll of Americans nationwide.
A wake-up call
“This should be a wake-up call for the legal profession. The public simply doesn’t believe that law firms care much about diversity,” said Dan McGinn of McGinn and Company who collaborated on this poll. “Expectations are rising in this arena and the legal profession needs to move from laggard to leader.”
Respondents were asked to rate 11 industries on whether they are more or less committed than average to diversity. Higher education led the list with a net plus 43 score. Law firms came in last with a net minus 1 score.
Despite the legal industry’s poor perception, the public believes strongly that a diverse workforce is highly beneficial for a law firm’s business prospects. Sixty-two percent of respondents to the survey said that a law firm that is committed to diversity will be more successful attracting clients.
Diversity bring success
Public perception of diversity as a positive factor across industries is even higher. According to lead researcher Rex Repass, “These results show that nearly three-fourths of Americans (71%) believe organizations with a diverse workforce are more successful than organizations that do not have a diverse workforce.”
Key Findings (industries ranked by largest percent above average to lowest percent below average for perceived commitment to diversity):
- Higher Ed +43
- Healthcare +35
- Restaurants +34
- Hotels +
- Government +29
- Manufacturing +29
- Media +
- Entertainment +23
- Finance +9
- Accounting +5
- Law firms -1
McGinn and Company is one of the nation’s leading reputation management firms with more than 35 years of experience. Founder and CEO Dan McGinn has advised more than 40% of Fortune 100 companies, including General Electric, IBM, 3M, General Motors, Coca-Cola, Verizon, Merck, Dell, and Nestle. Based in Arlington, Virginia, Dan and his team have worked with corporate general counsel, university presidents, and government officials on some of their most complex and high profile issues.
The survey was conducted for McGinn and Company by Repass Research. The 1,156 respondents that completed the survey were sourced from an online double opt-in panel of adults age 18 and over in the U.S. Data was collected March 3-9, 2016. The final results were weighted based on gender, age, race, and household income to be representative of the U.S. population. When using online panel for data collection, it is not appropriate to apply a probability-based margin of error to interviews completed. However, with a total of 1,156 completed interviews weighted to gender, age, race, ethnicity and household income, statistical tests of significance may be conducted for each question asked, which yields an overall statistical error of approximately +/- 3.0 percentage points at the 95% confidence interval.
An Illinois Appellate Court affirmed a $3 million jury verdict to plaintiff James Crowley for a whistleblower retaliation claim brought under the Illinois State Official and Employee Ethics Act.
Determining that punitive damages are available under the Ethics Act, the Illinois Appellate Court ruled that Chicago State University’s conduct was “thoroughly reprehensible,” and the ratio between the compensatory and punitive damages award was entirely reasonable.
Obeying the Law
Crowley, former Senior Legal Counsel for Chicago State University (CSU), reviewed contracts and processed the university’s FOIA (Freedom of Information Act) requests. Crowley alleged he was retaliated against after he refused to withhold certain documents from FOIA requests inquiring about the university’s President. Crowley reported his concerns about the FOIA requests and Chicago State’s contracting practices to the Illinois State Attorney General’s Office.
According to the Illinois opinion, Crowley’s employment was without incident until 2009, when defendant Dr. Wayne Watson was hired to become president of CSU. Watson had just finished a job as the head of the Chicago City Colleges and planned to draw his state pension. Shortly after the announcement of the CSU job, it was discovered that, in order to begin receiving pension payments from the State University Retirement Systems (SURS), the rules required him to have a three-month gap between state jobs.
Improper Use of Funds
During the gap, amidst significant public controversy about the merits of Watson’s appointment, allegations focused on Watson’s alleged use of state funds to renovate the so-called “presidential residence” while making decisions at CSU when he was not yet officially in office. During this period, in the view of all parties at trial, Watson was not a CSU employee and thus could not authorize any sort of activity at the university.
Numerous FOIA requests were received by CSU from curious citizens (including a rather prolific document requester named Phillip Beverly, a tenured political science professor at CSU) which called for any documents concerning Watson’s hiring and the work at the residence. Crowley went about the task of collecting all documents that he believed would be responsive to these numerous requests.
Adverse Employment Action
According to Crowley, during a meeting in President Watson’s office, which the interim acting president, Dr. Sandra Westbrooks joined, Watson demanded that nothing be produced without his personal review — despite the notable facts that Watson was not yet an university employee and that it was Crowley’s job to fully respond to FOIA requests. Crowley testified at trial that a rather animated Watson grabbed his wrist and told him, “If you read this my way, you’re my friend. If you do it your way, you’re my enemy.”
On February 1, 2010, Crowley was escorted off CSU premises after being summarily suspended by Patrick Cage, CSU’s newly hired (November 2009) general counsel and a longtime colleague of Watson’s. Crowley was brought back to CSU on February 19, 2010, for a very brief meeting with Cage in which he was told that financial irregularities were found in an audit relating to Crowley’s work.
Hours later, Crowley’s employment was officially terminated. There is no indication in the court record that Crowley was given any opportunity to correct these perceived shortcomings, which Crowley claimed was in violation of CSU’s policies and procedures.
$3 Million Award for Retaliation
A Cook County jury found that Crowley was retaliated against in violation of the Ethics Act and awarded him $480,000 in back pay and an additional $2 million in punitive damages. Pursuant to the statute, the trial court doubled the back pay to $960,000, ordered the University to pay attorneys’ fees of $318,000, and awarded prejudgment interest in the amount of $60,000.
The trial court also ordered the University to reinstate Crowley to his former position or provide “front pay” based on a $120,000 annual salary through the resolution of any appeals.
The appellate court affirmed and held that punitive damages are available under the Ethics Act, rejecting the University’s position that it was immune from liability for punitive damages pursuant to the doctrine of sovereign immunity. The court also held that the jury’s award did not violate the University’s due process rights as the University’s conduct was “thoroughly reprehensible” and the ratio between the compensatory and punitive damages award was entirely reasonable.
This ruling clarifies that punitive damages are available under the Ethics Act and affirms the serious risks employers face for taking adverse action against employees engaging in lawful activity under state whistleblower laws.