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.
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
Face It, Face Covering Policies Do Not Muzzle First Amendment Rights
Masks and face coverings have become part of the “new normal” for everyday life since the coronavirus pandemic began. As worksites continue to reopen across California, public employers have implemented face-covering policies based on recommendations and guidance from the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), Equal Employment Opportunity
What’s in a Name? – The Karen Meme Question
If you consume social media, be it Facebook, Instagram, Twitter, or the app of the moment TikTok, you have certainly come across “the Karen meme.” By and large, “the Karen meme” is an image depicting a middle-aged Caucasian woman, almost always sporting a spiky, short blonde haircut. “Karen” argues with and is condescending to service
Public Employment Issues and the 2020 Election – From Employee Free Speech to Taking Time Off to Vote
Election day, November 3, 2020, is only several months off. Almost all agree the election will be historic, with a high-level of public activity anticipated, whether through donations, rally participation, letter writing, buttons, t-shirts, banners, yard signs, word-of-mouth, or social media. Protests and even civil disobedience are possible. Election times present unique issues for California