Google & Free Speech

Google_Mountain_View_campus_dinosaur_skeleton_'Stan'I learned something new in recent weeks.  If your blog is not being searched by Google, it tends to disappear from public view.

A defining feature of the marketplace of ideas today is that free speech is increasingly dependent upon  a handful of search engines, led by Google. And that’s kind of scary.  On May 29, 2014, I wrote an article noting that Google had omitted age from its plan to boost diversity in its workforce.  I’ve written a couple of articles about the fact that Google (like many Silicon Valley companies) appears to engage in blatant age discrimination with impunity.  On the day I wrote the article  my blog received almost a thousand impressions from Google.    This means pages from my site appeared in Google search results almost a thousand times.  A week later, my blog was receiving fewer than 100 Google impressions per day.

The chart showing the decline in Google impressions on my blog since May 29 looks like the flume at a water park when standing at the top or a graph of the economy right after the Great Recession. My Google search traffic ranged from 500 to 1,250 impressions per day for the month preceding May 29; it has been below 100 impressions ever since (with the exception of one day when there were 228 impressions).

The link in the decline in search traffic on my blog may be purely coincidental.  And I realize that Google is basically a mathematical formula, an algorithm.  However, clearly Google can be tweaked.  For example, European courts have recognized an individual’s right to be “forgotten” and require  Google to omit certain information from search engine traffic.  What if  Google was hyper-sensitive and was intentionally omitting my blog from searches?  I wondered whether I have any legal right to demand that Google play fair?

The answer appears to be no.

Continue reading “Google & Free Speech”

Library of Congress v. Free Speech

do-not-enterThe Library of Congress (LOC) has closed its doors to a foundation that was created by current and former employees to assist LOC employees in pursing complaints of racial discrimination.

The issue is interesting because it raises concerns about the right to free speech under the First Amendment of the U.S. Constitution, which would appear to be central to the Library’s mission.

A panel of three judges for the U.S. Court of Appeals for the D.C. Circuit recently upheld a lower court’s dismissal of a lawsuit filed against the LOC by The Cook and Shaw Foundation,  a non-profit group formed by present and past employees to assist LOC employees in filing race discrimination lawsuits.

The Library has a policy in which it recognizes certain employee organizations and gives them meeting space, the right to post materials on bulletin boards, etc.  The Foundation’s request for recognition was denied because “the Foundation’s purpose of helping employees bring and maintain lawsuits against the Library is inconsistent with the Library’s policy that recognized employee organizations be ‘concerned only with welfare, financial assistance, recreational, cultural, or professional activities.’”

The Foundation filed a lawsuit alleging the LOC violated the retaliation clause of Title VII of the Civil Rights Act of 1964.  This clause makes it unlawful for an employer to discriminate against any employees (or applicants for employment) because they have opposed any practice made an unlawful by the law or because they have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.

There is a certain logic to the Foundation’s view that helping employees file race discrimination lawsuits relates to their welfare and professional activities.  However, the appeals court ruled that Title VII covers only employees and job applicants and not foundations. The appellate panel said the Foundation failed to identify any particular library employee who was subjected to retaliation in violation of Title VII.

“Perhaps such allegations could have formed the makings of a First Amendment claim by the Foundation. But plaintiffs advanced a Title VII claim,” the panel concludes.

The case is Howard R.l. Cook & Tommy Shaw, et al v. James Billington, #12-5193.

Appeals Court SWATs Free Speech for Police

On the bright side, at least he’s still alive.

A panel of the U.S. District Court of Appeals for the Ninth Circuit in San Francisco this week reversed a jury verdict in favor of Brian Hagen, a Eugene Oregon police officer who was removed from the  department’s K-9 team after expressing safety concerns following several  instances involving the accidental discharge of weapons by members of the department’s SWAT team.

The panel ruled that a “public employee [who] reports departmental-safety concerns to his or her supervisors pursuant to a duty to do so ….does not speak as a private citizen and is not  entitled to First Amendment Protection.”

After three instances of accidental discharge of weapons by SWAT team officers in two years, one of which resulted in the actual shooting of a SWAT team member, Hagen became concerned about safety issues related to the K-9 team working with the SWAT team.  When he  repeatedly pressed for information about improvements to the SWAT team’s weapons handling, he was transferred from the K-9 team.

After a trial, a jury unanimously agreed that the City  had deprived Hagen of his First Amendment right to free speech under the U.S. Constitution by retaliating against him for expressing safety concerns. The jury awarded Hagen $50,000 in compensatory damages and $200,000 in punitive damages.

A three-judge panel of the appeals court ruled on Dec. 3 that the lower court improperly denied the City’s  motion for Judgment as a Matter of Law. The appeals court reversed the jury verdict, vacated the damages, and remanded the case back to the lower court with instructions to enter judgment in favor of the defendants on each of Hagen’s claims. 

The  appeals court agreed with the City’s  argument that Hagen failed to establish that he spoke as a private citizen, rather than as a police officer who was “required by [the] City and police department to report safety concerns.”

 The appeals court said Hagen was required to express concerns about officer safety internally and within the police chain of command. Therefore, it said, even construing all evidence in Hagen’s favor, Hagen did not act as a private citizen who was  eligible to First Amendment protection.

The case is Hagen v. City of Eugene, Peter Kerns, Jennifer Bills, Thom Eichhorn, No. 12-35492.

Teacher Insubordinate; Except for Bible

The Ohio Supreme Court has upheld the dismissal of an eighth grade science teacher who was accused of insubordination because he refused to stop injecting his Christian faith into classroom instruction.

However, Ohio’s top court ruled that teacher John Freshwater had a First Amendment right to keep his personal bible on his desk and his failure to remove the bible was not insubordination. The court noted the school district was afraid that that allowing a teacher to keep a bible on his desk would violate the separation of church and state. “The district feared an Establishment Clause violation where none existed. Unsubstantiated fear alone cannot justify flouting the First Amendment,” wrote the court.

Dating back at least a decade, Freshwater refused to follow the Mount Vernon school district’s approved curriculum with respect to evolution.  Specifically, he refused to stop teaching creationism or intelligent design and the unreliability of carbon dating as reasons to support opposing evolution.

He also refused orders to remove a collage of the Ten Commandments and posters of former President George W. Bush and Colin Powell engaged in prayer. Freshwater taught that homosexuality is a sin. He distributed religious handouts to students, such as “Darwin’s Theory of Evolution—The Premise and the Problem”  from “All About God Ministries.”

The district was sued after Freshwater allegedly used a Tesla Coil electrostatic machine to make the mark of a cross on a student’s arm in 2007.

The Mount Vernon City School District Board of Education terminated Freshwater in 2011 for insubordination in violation of a state statute.

The Ohio Supreme Court concluded that “Freshwater not only ignored the school district’s directive, he defied it. After he was directed to remove the items, Freshwater deliberately added to them, incorporating the Oxford Bible and Jesus of Nazareth into the classroom,” The court notes  that Freshwater “is fully entitled to an ardent faith in Jesus Christ and to interpret Biblical passages according to his faith. But he was not entitled to ignore direct, lawful edicts of his superiors while in the workplace.”

Because there was “ample evidence of insubordination” to justify Freshwater’s dismissal, the court said it was not required to address Freshwater’s argument the school board violated his right to academic freedom pursuant to the First Amendment of the U.S. Constitution.

Michigan Bill Links Bullying & Crime

singsingA lawmaker has introduced a proposed bill in Michigan that would make bullying and cyberbullying a misdemeanor criminal offense punishable by a fine of up to $1,000 and a jail term of up to 93 days.

Republican State Rep.  Dale W. Zorn’s bill also would permit a judge to require an individual who is convicted of or found responsible for violating the anti-bullying law to “undergo an evaluation by a mental health professional at his or her own expense and to receive counseling or other treatment at his or her own expense if determined appropriate by the court.”

 Rep. Zorn’s proposal is one of  the first if not the first proposed bill in the United States to link bullying with crime and mental health. Other proposed legislation in the U.S. is civil  (non-criminal) in nature and seeks monetary damages and/or injunctive relief.

Zorn’s proposed bill addresses both school and workplace bullying. 

 There is precedent elsewhere for treating workplace bullying as a crime. Lawmakers in Victoria, Australia adopted an anti-bullying law known as “Brodie’s Law “that took effect in June 2011 and makes stalking related to bullying a crime punishable by up to 10 years in jail. 

Brodie’s Law was passed after the suicide of Brodie Panlock, 19, a waitress who was subjected to relentless bullying in the workplace. Four co-workers were fined a total of $355,000 (Australian) in 2010 but Ms. Panlock’s parents felt the fine was a slap on the wrist and lobbied for criminal sanctions.

Zorn says Michigan House bill No. 4746 is intended to encourage the rehabilitation of bullies by offering an option for mental health counseling at the judge’s discretion and the bully’s expense. The criminal  charge could be expunged or wiped from the defendant’s criminal record upon successful completion of treatment.

 “The  behavior of bullying has become a societal problem that may need to be eradicated through professional counseling,” he said.

The bill likely would face challenges with respect to the First Amendment to the U.S. Constitution, even though it specifically exempts speech that is protected by federal and state law.

 The bill defines “bully” to mean engaging in one or more of the following behaviors on two or more separate occasions with the intent to frighten, intimidate or harass another person:

     (i) Assaulting or battering that other person.

     (ii) Referring to that other person while in his or her presence with a derogatory or offensive nickname or label.

     (iii) Disseminating false or misleading information about that other person.

It is not clear why the bill prohibits derogatory  or offensive speech in the presence of the individual, but not in the individual’s absence.

In a press release, Zorn said he arrived a the definition of bullying after meeting with school administrators, students, parents, prosecutors and judges.

The bill was immediately referred to the Michigan House Judiciary Committee. 

Cyberbullies & Free Speech

A cyberbully, acting under the cloak of anonymity, has the potential to do grievous harm to an individual.

So what should society do about it?

A bill was recently proposed in New York State that would require website administrators to remove any comments posted on their web site by an anonymous poster unless the poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.

The proposed bill, The Internet Protection Act (A.8688/S.6779), also would require web site administrators to have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.

The bill is co-sponsored by two Republicans, Assemblyman Dean Murray and Sen. Thomas O’Mara. Murray says he was a target of cyberbullying during his 2010 re-election campaign. An anonymous source reportedly alleged that Murray had committed acts of violence towards his ex-wife and that his son, who was in the military at the time, was in hiding because he was being abused.

Fiddling with free speech rights is certainly tempting when one ponders the cowardly cyberbully, who intentionally uses a computer like an unseen sniper to inflict harm.  In recent years, there have been several reported cases of  teen suicides allegedly precipitated by cyberbullying.

However, history shows that efforts to protect victims often backfire as a result of unintended and unforeseen consequences.  It is not inconceivable that the Internet Protection Act could be used to further harass targets and to prevent them from speaking out about abuse for fear of reprisal.

The underlying issue is whether Americans should have the right to “publish” information anonymously and whether this right is outweighed by the target’s need to easily “out” a cyberbully.

The issue of anonymous publication was addressed by the U.S. Supreme Court in McIntyre v. Ohio Elections Comm’n, 514 U.S. 344 (1995). The Court upheld the right of a citizen to post anonymous leaflets in an election campaign. The Court said an individual may seek anonymity for reasons of fear of economic or official retaliation, concern about social ostracism or merely because s/he desires to preserve his or her privacy.  “Whatever the motivation may be…the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry,” the Court said.

Perhaps the most famous U.S. case involving freedom of the press was the 1735 trial of John Peter Zenger, a printer who refused to reveal the anonymous authors of published attacks on the Crown Governor of New York. When the Governor and his council could not discover the identity of the authors, they prosecuted Zenger for seditious libel.  Zenger’s lawyer, Alexander Hamilton, successfully argued the proposition that the truth is an absolute defense against libel. The jury returned a verdict of “not guilty.”

A bill such as the Internet Protection Act, which affects a basic American right, certainly should be weighed against the  legal avenues that currently exist to address cyberbullying.  And is this really the best, most narrowly drawn approach to the problem of cyberbullying?

Cyberbullying may include activity that falls within various federal, state or local criminal statutes, such as criminal harassment.

In 2011,  an attorney who was a senior official of a Rhode Island teachers union was criminally prosecuted and convicted of a misdemeanor charge of cyber-stalking after  he posted anonymous criticisms of a politician who was running for office. The politician lost his reelection bid and his wife testified during the trial that he suffered rising blood pressure and lost weight because of the stress of the anonymous e-mails. The teacher’s union official was fined $100.

Cyberbullying may also involve a civil issue, such as libel. A determined private party may be able to ascertain a cyberbully’s identity in a civil case through  “John Doe” subpoenas to the web site and the internet service provider.

Despite it’s problems, the proposed Internet Protection Act is reportedly supported by 23 of the 49 New York Assembly Republicans, plus one Independent and one Democrat.

The Cyberbullying Research Center defines cyberbullying as “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices.”

 

U.S. Supreme Court Hides Behind Anonymity

The Revolution Won’t be Televised

A while back, I noted the U.S. Supreme Court has done more than it’s fair share to contribute to the divide between the “haves” and the “have nots” in our society.

The President and the U.S. Congress receive much of the blame in the “one percent v. 99 percent” debate because they can be seen sweating under the glare of the television spotlight. They can be held accountable. But the nation’s highest Court conveniently refuses to allow its proceedings to be televised.

Now the Court has issued a press release that makes it clear it will not allow television cameras when it hears arguments on President Obama’s health care law, the Patient Protection and Affordable Care Act, on March 26, 27, and 28.  The law  is being challenged by 26 states and the National Federation of Independent Business. Instead, the Court will provide the audio recordings and transcripts of the oral arguments on the Court’s website, www.supremecourt.gov.

The audio recordings and transcripts undoubtedly will be of interest to a few law students and historians but most people today “watch” their news on television or the Internet. Refusing to be televised is akin to insisting in 1440 that the bible be penned in ink by monks, longhand, rather than printed on the newfangled Gutenberg printing press.

A USA TODAY/Gallup Poll found that 72% of the people surveyed think the Court should allow cameras to televise oral arguments on the health care law.

Many Americans are dismayed by the tawdry spectacle of the on-going Presidential race – which is infused with money funneled through superpacs from foreign countries and their lobbyists.  How many know that this is the direct result of the Court’s 5-4 decision in Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), which held that corporate funding of “independent” political broadcasts in elections is protected speech under the First Amendment?  Many on both sides of the political aisle believe the Citizens United ruling is literally one of the worst rulings in history and reflects a Court that is sadly out of touch with reality.

Could the Court be unaware of the deleterious effect of the Citizen’s United ruling on our country?  One could make a compelling argument that televising court proceedings would not only be good for America but also for the  U.S. Supreme Court.