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Category Archives: First Amendment

Use “The Streisand Effect” To Hit The Perfect Legal Writing Chord.

15 Saturday Aug 2015

Posted by Celia C. Elwell, RP in Civil Rights, First Amendment, Legal Argument, Legal Writing, Persuasive Writing

≈ Comments Off on Use “The Streisand Effect” To Hit The Perfect Legal Writing Chord.

Tags

Breaking Energy Blog, Civil Rights, Elie Mystal, Legal Writing, Persuasive Writing, Raymond Ward, Song Lyrics

Peabody Energy Tries To Strike Song Lyrics From Complaint: Welcome To The Streisand Effect, by Elie Mystal, Breaking Energy Blog (with hat tip to Raymond Ward!)

http://tinyurl.com/ozm4j5l

Kudos to the lawyers who came up with this legal writing strategy. A couple sued Peabody Energy and alleged a civil rights violation. The police arrested the couple for holding up a banner during Peabody’s shareholder’s meeting.

The Complaint filed against Peabody Energy included lyrics to a song called “Paradise,” by John Prine. Who knows how the plaintiff’s counsel found it. The lyrics are a perfect choice.

The song is about coal mining exploitation by a company. You guessed it – the company’s name is Peabody. The lyrics about the big, bad coal company abusing the rights of common people strike the right chord.

Peabody’s reaction was understandable, but a costly mistake. Peabody filed a Motion to Strike. Strike what? The song lyrics – in a lawsuit about freedom of speech. To be kind, perhaps Peabody’s counsel did not think that one through.

The plaintiff’s response is classic and brilliant legal writing strategy. -CCE

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NLRB “Likes” Facebook.

10 Wednesday Dec 2014

Posted by Celia C. Elwell, RP in Civil Rights, Employment Law, First Amendment, Social Media

≈ Comments Off on NLRB “Likes” Facebook.

Tags

Employment Law, Facebook, First Amendment Right, John R. Martin, NLRB, Rhoads & Sinon LLP, Social media

Social Media Update: Recent Developments from the Land of Facebook…, by John R. Martin, Rhoads & Sinon LLP

http://tinyurl.com/ky45qvf

I think we can all agree that, as a general rule, employers and social media are not Facebook friends. They don’t follow each other on Twitter. Or Instagram. And they would never (ever) be caught dead sending the other a Snapchat. (Mind out of the gutter, people. Not that kind of Snapchat.)

While employment relationships, for the most part, remain ‘at-will,’ social media has slapped the handcuffs on employers in many respects when it comes to the issue of employee discipline. Most notably, the National Labor Relations Board (“NLRB”) has come down hard on an employer’s ability to discipline an employee for social media-related conduct that has even a passing relationship to the terms and conditions of employment (e.g., complaining about wages, benefits, hours worked, etc.). The NLRB has also frowned on many social media policies and has declared nearly all of the ones it has reviewed to be unlawfully overbroad in restricting an employee’s right to engage in protected activity online.

Sorry employers… things aren’t getting any better just yet, as two recent cases have made clear.

An Employee’s First Amendment Right to ‘Like’

A federal appellate court recently ruled that clicking Facebook’s ‘Like’ button can be considered speech protected by the First Amendment. In the case, several deputies were not reappointed by the sheriff after winning his reelection campaign. What was the alleged reason for this decision? The deputies had (horror!) ‘liked’ the Facebook page of one of the sheriff’s opponents during the election….

The (now unemployed) deputies sued, citing a violation of their First Amendment rights. (A viable legal claim, as this is a public, i.e., government, employer. As discussed in a previous blog post, private employers need not concern themselves with such issues. However, when politics are at play, there’s always cause for concern, whether public or private, as was discussed in another prior post.) And guess what? The deputies won….

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Rhode Island Opens Records Law Not So Open.

28 Sunday Sep 2014

Posted by Celia C. Elwell, RP in Criminal Law, First Amendment, Government, Open Records Act

≈ Comments Off on Rhode Island Opens Records Law Not So Open.

Tags

Access to Public Records Act, Access/RI, Criminal Law, Criminal Law.Com, MuckRock, Open Records Law, Rhode Island

Criminal Records Search and Background Checks, from Criminal.Com

http://www.criminal.com/revised-open-records-law-not-always-enforced-in-rhode-island/

A report released by Access/RI shows that in the two years since Rhode Island changed its open records law, enforcement of the law has been less than stellar.

Access/RI isan alliance of First Amendment advocates and MuckRock, a group that works with journalists to secure and analyze public records. They show execution of the updated rules is extremely rare. The report states what is really happening isdifferent than what policy makers had hoped would transpire when legislation went through.

When Rhode Island Governor Lincoln Chafee signed the Access to Public Records Act into law in June of 2012 it was noted that employment contracts and other documents that had been sealed in the past would now be public and readily available.

Access/RI found that restructured law was not being followed when routine documents such as arrest reports and contracts were requested. Many school systems have been unwilling to comply with the law and instead give heavily redacted copies of employment contracts. . . .

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29 Sunday Jun 2014

Posted by Celia C. Elwell, RP in Abortion, Appellate Law, First Amendment, United States Supreme Court

≈ Comments Off on

Tags

Abortion Buffer Zone, American Civil Liberties Union, Civil Rights, Concurring Opinions Blog, First Amendment, Judge Posner, Massachusetts, McCullen v. Coakley, Ronald K.L.Collins, Walter Dellinger

FAN 20.4 (First Amendment News) — 9 Comments on McCullen, the Abortion Buffer Zone Case, by Ronald K.L.Collins, Concurring Opinions Blog

http://tinyurl.com/lj44njo

Mr. Collins shares excerpts from nine commentaries on the U.S. Supreme Court’s recent ruling in McCullen v. Coakley, which removed the “buffer zone” around abortion clinics in favor of First Amendment rights of those who protest abortion. -CCE

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U.S. Supreme Court’s New Pleading Standards For Qualified Immunity.

27 Tuesday May 2014

Posted by Celia C. Elwell, RP in Appellate Law, Excessive Force, First Amendment, Governmental Tort Claim Act, Qualified Immunity, United States Supreme Court

≈ 1 Comment

Tags

Excessive Force, First Amendment, Iqbal, Qualified Immunity, Supreme Court, Twombly

SCOTUS Decision in Wood v. Moss: Guidance on Pleading Standards?, by Adam Steinman, Civil Procedure and Federal Courts Blog 

http://tinyurl.com/pvgjemj

Today the Supreme Court issued a unanimous decision in Wood v. Moss, with Justice Ginsburg authoring the opinion for the Court. As covered earlier here, Wood v. Moss is a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his 2004 visit to a restaurant in Oregon. The plaintiffs claim that the defendants, who were secret service agents, violated their First Amendment rights by moving them farther away from the President than a similar group that was expressing support for the President.

In today’s decision, the Court unanimously rules that the defendants are protected by qualified immunity. To most, this conclusion did not come as a surprise. For many proceduralists, however, the case was of particular interest because of its potential effect on pleading standards in the wake of Twombly and Iqbal. . . .

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Court Bars Woman From Facebook. First Amendment Violation?

18 Sunday May 2014

Posted by Celia C. Elwell, RP in Criminal Law, First Amendment

≈ Comments Off on Court Bars Woman From Facebook. First Amendment Violation?

Tags

Civil Rights, Facebook, First Amendment, Matt Moreno, NEWSY, Rants, Social media

Woman Barred From Ranting About Family On Facebook, by Matt Moreno, NEWSY

http://www.newsy.com/videos/0518facebook/

Hate it when people rant on Facebook? Well, one New Jersey mom has actually been banned from doing just that.

A judge has ordered one unidentified woman not to go on Facebook rants about her children or ex-husband. . . .

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Federal Court Rejects Portland’s Panhandling Ordinance.

15 Saturday Feb 2014

Posted by Celia C. Elwell, RP in Constitution, First Amendment, Municipal Code, Municipal Law, Panhandling

≈ Comments Off on Federal Court Rejects Portland’s Panhandling Ordinance.

Tags

Anti-Camping, First Amendment, Homeless, Mayor Charlie Hales, Muncipality, Oregon, Panhandlers, Portland, U.S. Constitution, U.S. District Judge George Z. Singal

 Our View: Rejection Of Median-Strip Panhandling Ban Right Call For Portland, Portland Press Herald

http://tinyurl.com/l6o3gdp

It is estimated that 4,000 homeless people sleep on Portland’s streets. Portland’s Mayor Charlie Hales has been taking various measures since last summer to address with Portland’s homeless situation. Mayor Hales has said he wants to crack down on homeless camps by increasing homeless shelters, but has not set any specific amount for pay for shelters.

The Mayor’s anti-camping law allows police to “sweep” homeless  on sidewalks. In a “sweep,” the police discard the homeless’ few possessions, including warm clothing and blankets, in spite of the number of homeless who have frozen to death.

Mayor Hales says this law is not about homelessness but about lawlessness. Unfortunately for Mayor Hales, his actions have galvanized grass roots protesters to head this week towards City Hall with – literally – pitchforks and torches.

To the Portland Police Department’s credit, it responded to the recent extremely cold conditions by moving people to shelter. The Fire Department also did its part to help. Normally around 1,000 shelter beds are available for the homeless, but various agencies, such as the Red Cross, provided 350 more shelter beds.

This will, I hope, give you an idea of the scope of the homeless situation in Portland, the struggle to address it, and set the stage for the case discussed in this post from the Portland Press Herald.  An ordinance forbidding panhandling purportedly to address “public safety” has been struck down by a federal judge in support of the First Amendment. -CCE

There is something disturbing about seeing men and women standing near the roadway holding signs and asking for help. It’s hard to ignore a median-strip panhandler when you are sitting in a car stopped at a red light. It makes some people feel angry, others threatened.

Moving panhandlers off the median strips did not fix any of the real problems of poverty in Portland, but neither does knocking down the ordinance that banned them. City leaders should keep working to address the real problems of homelessness and extreme poverty.

But that’s not enough to override the First Amendment to the Constitution, according to U.S. District Judge George Z. Singal. In his ruling Wednesday, Singal struck down a Portland ordinance that banned standing in median strips by pedestrians as ‘content-based restriction on free speech.’

Judge Singal saw right through the city’s claim that the goal of the ordinance was to protect public safety, correctly pointing out that the ordinance did not prohibit people from posting campaign signs on the medians, which is at least as dangerous as standing still. . . .

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North Carolina’s “Woman’s Right to Know Act” Unconstitutional Under First Amendment.

19 Sunday Jan 2014

Posted by Celia C. Elwell, RP in Abortion, First Amendment

≈ Comments Off on North Carolina’s “Woman’s Right to Know Act” Unconstitutional Under First Amendment.

Tags

Abortion, City University of New York, Constitutional Law Prof Blog, First Amendment, North Carolina Supreme Court, Ruthann Robson, Stuart v. Loomis, The Woman's Right to Know Act, U.S. District Judge Catherine Eagles, Ultrasound

Federal District Judge Invalidates North Carolina Abortion Provision on First Amendment Grounds, by Ruthann Robson, City University of New York, Constitutional Law Prof Blog

http://tinyurl.com/jvu9scb

In her opinion in Stuart v. Loomis, United States District Judge Catherine Eagles held the ‘speech and display’ provisions of North Carolina’s ‘The Woman’s Right to Know Act’ unconstitutional under the First Amendment. . . .

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Framing Your Legal Arguments To Persuade.

11 Saturday Jan 2014

Posted by Celia C. Elwell, RP in Closing Argument, Cross-Examination, Direct Examination, First Amendment, Jury Instructions, Legal Writing, Making Objections, Opening Argument, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Framing Your Legal Arguments To Persuade.

Tags

A&E, Chris Kluwe, Dr. Ken Broda-Bahm, Duck Dynasty, Free Speech, Minnesota Vikings, Persuasive Litigator, Phil Robertson, Trial Tips and Techniques

Frame It As “Freedom with Consequences,” by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/mvb6qjy

Ducks and Vikings have been prominent recently on the free expression front of the culture wars. The ‘Duck’ would be Duck Dynasty’s reality star Phil Robertson, who’s recent comments on homosexuality and race caused his network, A & E, to briefly suspend him from the show. The ‘Viking’ would be former Minnesota Vikings punter Chris Kluwe, who was released by the team after controversy following an editorial he wrote in favor of marriage equality. While Kluwe lost his job and Robertson kept his, the similarity in the cases is that both were framed in the public sphere as a question of free expression. But it is less the question of whether Robertson and Kluwe have free speech, but whether they have freedom from the employment consequences of that speech.

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A Rose by Any Other Name . . . .

09 Saturday Nov 2013

Posted by Celia C. Elwell, RP in First Amendment, Legal Writing, Motions in Limine, Trial Tips and Techniques

≈ Comments Off on A Rose by Any Other Name . . . .

Tags

Hercurles and the Umpire, Hon. George Richard Kopf, Motion in Limine, Name Designations, Tennessee Supreme Court

Counsel on both sides petition the Court to be called “specific” names. The jury, as juries sometimes do, may be able to think of some on its own. CCE

A response to a motion in limine that I wish I had received, by Hon. George Richard Kofp, Hercules and the umpire Blog

http://bit.ly/19NNlFV

 

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During Trial, Court Should Have Admonished Jury Not to Google Plaintiff’s Lawyer Rather than Ordering Removal of Verdict Successes from Attorney’s Website

01 Friday Nov 2013

Posted by Celia C. Elwell, RP in First Amendment, Jury Instructions, Law Firm Web Sites, Law Office Management, Legal Ethics, Marketing, Trial Tips and Techniques

≈ Comments Off on During Trial, Court Should Have Admonished Jury Not to Google Plaintiff’s Lawyer Rather than Ordering Removal of Verdict Successes from Attorney’s Website

Tags

Censorship, First Amendment, Jury instructions, Law Firm Websites

Jurors Might Google Law Firm’s Website, but Judge Can’t Censor It During Trial, by Scott Graham, The Recorder (with hat tip to Allen Mihecoby, CLAS, RP® on LinkedIn)

http://perma.cc/0UvXPVmc3Fg

[T]the decision sets new boundaries in an area of increasing concern for trial attorneys and judges: the balance between attorney free speech rights and potential jury contamination in a networked world.

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