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Category Archives: First Amendment

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First Amendment Law in 2015 – 8 Areas to Watch (Part II)

Posted in First Amendment
Tuesday’s post discussed four important issues in First Amendment law which will involve the Supreme Court and other courts deciding fairly traditional, “earth bound” questions of free speech.  Today’s post explores more unusual challenges facing the courts in 2015. 1. Individuals’ Speech on Facebook: Does the First Amendment protect an individual who makes menacing and… Continue Reading

Campus Free Speech – A Review of Policies Can Avoid Litigation

Posted in Education, First Amendment
It has been 50 years since the Free Speech Movement began at UC Berkeley in 1964, and approximately 40-50 years since near-riotous conditions overwhelmed college campuses in the late 1960’s and early 1970’s.  In our own time, it is about three years since the 2011 Occupy events and large-scale tuition protests erupted on college campuses. … Continue Reading

U.S. Supreme Court Issues New Public Employee Free Speech Decision – Compelled Employee Testimony Can Be Protected

Posted in First Amendment, Retaliation
On Thursday, June 19, 2014, the U.S. Supreme Court in Lane v. Franks held that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his or her ordinary job responsibilities.  In so holding, the Court overturned precedent from the U.S. Court of Appeals for the… Continue Reading

Disciplining Public School Students For Speech: First Amendment Implications

Posted in Education, First Amendment
Many student discipline matters in public schools involve speech, be it joking threats by the student, outrageous bullying on social media, epithets or hate speech, or clothing containing messages or symbols that violate school rules.  Because they involve speech, these discipline cases can raise substantial First Amendment concerns. Some view student speech as less valuable… Continue Reading

U.S. Supreme Court Will Hear New Case On Public Employee Free Speech Rights

Posted in Education, Employment, First Amendment
On January 17, 2014, the U.S. Supreme Court decided to hear the free speech retaliation case of Edward Lane.  Lane, a former employee of the Central Alabama Community College District, alleged in federal court that he lost his job because he had testified in a criminal matter against a former co-worker.  In deciding the case,… Continue Reading

The First Amendment in Employment and Education – Five Issues for 2014

Posted in Education, Employment, First Amendment
The year 2014 will bring important developments in a number of areas of free speech law in employment and education.  The following are five primary areas worth following in the next 12 months: 1.  Anti-SLAPP Motions Creatively Invoked by Public Employers and Educators: December 2013 saw a surprising new case in the context of anti-SLAPP… Continue Reading

Ninth Circuit Issues First Amendment Ruling Applying the Legal Framework Set Forth by the Recent Dahlia Decision

Posted in First Amendment, Public Safety Issues
This blog post was authored by Alex Polishuk On Tuesday, December 3, 2013, the U.S. Court of Appeals for the Ninth Circuit, on the heels of its recent Dahlia v. Rodriguez decision that broadened police officers’ First Amendment rights, issued its ruling in another First Amendment case. In Hagen v. City of Eugene, the Court… Continue Reading

Federal Appeals Court Broadens Scope of Law Enforcement Officer First Amendment Rights

Posted in First Amendment, Public Safety Issues
On Wednesday, August 21, 2013, the U.S. Court of Appeals for the Ninth Circuit held in Dahlia v. Rodriguez that a Burbank police detective could assert a First Amendment retaliation claim based on his allegedly having complained to authorities about abusive interrogation tactics at his department.  The case is significant because it expressly overturns a… Continue Reading

Ninth Circuit Decision Reaffirms The Difficulty Members Of Law Enforcement Can Face In Asserting First Amendment Claims

Posted in Constitutional Rights, First Amendment, Public Safety Issues, Retaliation
Update: On December 11, 2012, the U.S. Court of Appeals for the Ninth Circuit decided to re-hear Dahlia v. Rodriguez en banc. Accordingly, public agencies can no longer rely on the three-Judge panel opinion discussed below. A panel of eleven Judges will re-hear the appeal. The opinion of that en banc panel of the Ninth Circuit will likely… Continue Reading

Pressing The “Like” Button, Reluctant Counselors, And Key Lieutenants – First Amendment “Hot Topics”

Posted in First Amendment
Several types of First Amendment cases have taken center stage this year, as free speech lawsuits by public employees continue to proliferate.  This post addresses three areas that qualify as “hot topics.” 1. Pressing “Like” on Facebook:  Courts continue to struggle with how to address public employee claims for free speech retaliation based on statements… Continue Reading

Anti-Slapp Motions As A Litigation Resource For Public Employers

Posted in First Amendment, Litigation
Public employers in California have a powerful tool available to them in California’s anti-SLAPP statute, California Civil Procedure Code section 425.16.  This availability was confirmed in a recent case named Vargas v. City of Salinas.  Not much fanfare accompanied the Vargas decision, which issued last November.  But the Court of Appeal’s decision, on constitutional grounds,… Continue Reading

Supreme Court Recognizes That The “Ministerial Exception” Under The First Amendment Precludes Retaliation Claim Brought Under The ADA

Posted in Discrimination, Education, First Amendment, Retaliation
This post was co-authored by Michael Blacher On January 11, 2012, the U.S. Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, in which the Court recognized for the first time the existence of the “ministerial exception” to employment discrimination laws.  That exception allows religious organizations, including religious schools, to make employment… Continue Reading

The First Amendment In Public Employment And Education – Six Issues For The Year 2012

Posted in Education, First Amendment, Legislation
2012 promises to be a significant year for freedom of expression in America, not only because protest movements are expanding across the country in various forms, but also because 2012 is an election year.  And, it will not be just any election, but one involving a “show down” of forces that have railed against each… Continue Reading

New Political Causes, OCCUPY Protests, And Public Employers

Posted in First Amendment
The rising intensity of political debate in recent years and this fall’s wave of OCCUPY protests nationwide have created unique challenges for public sector employers.  Employers are used to responding to mainstream political disputes in the workplace with the time-tested standby: “Republican or Democrat, it makes no difference, and please just go back to work.” … Continue Reading

U.S. Supreme Court Considers Limits Of Ministerial Exception

Posted in Discrimination, Education, First Amendment, Retaliation
This post was co-authored by Michael Blacher God said “Be fruitful and multiply.”  But does that make a math teacher at a religious school a “minister?”  The United States Supreme Court will soon decide. On October 5, 2011, the U.S. Supreme Court heard oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a… Continue Reading

Fifth Circuit Rules Cheerleader’s Free Speech Claims Were Not Frivolous

Posted in Constitutional Rights, Education, First Amendment
On September 12, 2011, in John Doe and Jane Doe v. Silsbee Independent School District, the U.S. Fifth Circuit Court of Appeals in Texas ruled that a high school student will not be required to pay attorney’s fees to the school district for her First Amendment free speech claims, but she will be required to… Continue Reading

The Ninth Circuit Decides “Religious Banners” Case On First Amendment Rights Of Public School Teachers

Posted in Education, First Amendment
The U.S. Court of Appeals for the Ninth Circuit, in Johnson v. Poway Unified School District, yesterday issued a decision that answers numerous questions bearing on the First Amendment free speech rights of high school teachers.  At the core of Johnson is the extent to which high school teachers’ expression to students in the course… Continue Reading