Social media sites have become the new “public square” where individuals share opinions and information about all types of political and societal events. Public sector employees, as much as anyone else, use social media to post viewpoints and to participate in public debate. Problems arise, however, when a public employee posts harsh, derogatory, defamatory, or
Discontinuing A Business Relationship Can Raise First Amendment Concerns
A recent case has made clear that a government agency’s ceasing doing business with a company based on the viewpoints of the company’s owners can lead to First Amendment liability for the agency. Earlier this year, in Riley’s American Heritage Farms v. Elsasser, the United States Court of Appeals for the Ninth Circuit (the
The Government’s Flagpole or the Public’s? The U.S. Supreme Court Rules Against Boston in First Amendment Case
When does a City create a public forum for speech under the First Amendment? When can a City restrict which flags fly on a City flagpoles? When can a City limit religious speech under the First Amendment? The United States Supreme Court addressed these questions in its unanimous decision in Shurtleff v. City of Boston
Smith Receives a Reprieve as the Supreme Court Turns its Attention to Questions of Compelled Speech
In June 2021, the Supreme Court declined an invitation to overturn Employment Division, Department of Human Resources of Oregon v. Smith, its seminal 1990 case holding that a facially neutral and generally applicable law survives a challenge under the Free Exercise Clause if it is rationally related to a legitimate government interest. However, the
Government-Hosted Social Media – How To Avoid First Amendment Claims
This post appeared in April 2018. It has been reviewed and is up to date.
Social media and the First Amendment is a fascinating and quickly-developing area of the law. All types of business organizations have a social media presence, for example, a Twitter page or Facebook account, and often on their own websites
Smith Survives – The Supreme Court’s Fulton v. City of Philadelphia Decision Does Not Alter the Free Exercise Analysis for Facially Neutral and Generally Applicable Laws
The First Amendment to the United States Constitution includes both an establishment clause and a free exercise clause. Of these, the free exercise clause is often invoked in the employment context to challenge employer policies that, while facially neutral and generally applicable, incidentally burden religion.
In Employment Division, Department of Human Resources of Oregon v.
Policymaking Employees and the First Amendment
This article was originally published in April 2017. The information has been reviewed and is up-to-date as of November 2021.
A newly-elected official is going to want to fill top posts in their organization with persons committed to the official’s vision for the future. In the same way, a top official after a period of
A SWAT Sniper’s First Amendment Rights Impact a Police Department’s Ability to Discipline Him For a Facebook Posting
In 2015, someone shot a police officer and a suspect was later arrested. While off-duty, a SWAT sniper commented on a friend’s Facebook post which linked to an article about the shooting. He wrote, “It’s a shame he didn’t have a few holes in him.” An anonymous tip came in about the post, there was
Fulton v. City of Philadelphia – The End of an Era in Limiting Free Exercise of Religion?
In March 2018, a Philadelphia Inquirer reporter alerted the City’s Department of Human Services (“Department”) that two of the foster care agencies with which it contracts – including Catholic Social Services (“CSS”) – refused to work with same-sex foster parents. The Department promptly conducted an investigation and, upon confirming that CSS refused to work with
Annual Review of the Strange and Unusual Employment Cases
Once again we take a look at the truly odd and remarkable employment cases from near and far.
Tweet the Gift Horse in the Mouth and You Might Be Shown the Door
An American company’s annual holiday gift to Canadian employees was a bottle of barbeque sauce and a grill scraper. One of the employee