F&W filed a discrimination lawsuit on behalf of its client. The lawsuit alleged, in brief, that the client tried to purchase a co-op unit to use for her medical office. The client is a black female nurse practitioner who operates a medical office providing skin care and beauty restoration services.

In the summer of 2023, the client was searching for a new office for her practice. She found a co-op unit on Park Avenue in Manhattan which suited her needs. The unit was marketed as being in one of Manhattan’s preeminent coop buildings. The unit had been listed for sale for three years and was being used as a medical office. The client made an offer and was about to finalize the contract, when another buyer suddenly surfaced. The seller sold the unit to this other buyer. As alleged in the lawsuit, the other buyer was a white male who was also a member of the building’s board of directors and owned another unit in the same building already. Based on these facts, the client alleged that this sale demonstrated race and gender discrimination.

On behalf of the client, F&W filed a lawsuit in New York County Supreme Court alleging housing discrimination based on race and gender. The lawsuit named the individual seller, the co-op corporation, and the co-op’s managing agent. The basis of liability against the co-op and managing agent was that the buyer-interloper, was a board member, so his actions can be imputed to the corporations.

The co-op and managing agent moved to dismiss the claims against them arguing that the complaint did not allege their liability with the specificity required by New York’s Civil Practice Law and Rules. F&W opposed the motion, but ultimately the court granted the motion and dismissed the two corporations from the case. The claim against the individual seller proceeded.

F&W appealed. F&W argued primarily that the corporations were demanding the court impose a heightened standard of pleading than is required by the law. Using the proper standard, “notice pleading,” F&W argued that the facts which were pled allowed inferences to be drawn showing that the corporations were involved in the discrimination. Further, F&W argued that co-op board members are agents of the board, so their actions can be imputed to the board.

On April 9, 2026, F&W partner, Matt Weinick, attended oral arguments for the appeal at the First Department. Facing what is commonly called a “hot bench,” or a panel of judges who actively question the lawyers arguing before them, Weinick fielded a flurry of questions which immediately signaled that the judges understood F&W’s arguments and were unsure about whether the lower court’s decision was the right decision.

Sure enough, on May 5, 2026, the Appellate Division, First Amendment issued its order unanimously reversing the lower court’s decision, reinstating the claims against the corporations, and awarding costs.

The Appellate Division first noted that the law imposes only a “lenient” notice pleading standard. At such an early stage of the case, the appellate court determined that the lower court should not have dismissed the case.

Notably, the First Department observed that the complaint’s facts showed that discrimination based on race and/or gender could have influenced the seller’s decision to not sell to the client. The court was swayed by facts including that the seller chose not to sell to the black female buyer who was qualified to purchase the unit, instead choosing to sell to a white male applicant who was not a medical professional and thus could not use the unit for its intended purpose.

Further, the Appellate Division agreed that that complaint showed that the corporations could be liable for the discrimination through the acts of the white male buyer. The co-op could be liable because the buyer was a board member, so he is an agent of the board. The managing agent could be liable because it was involved with the purchase.

The decision is a resounding win for F&W’s client. The case will be sent back to the Supreme Court so the claims against the corporations can be litigated.

If you have questions about discrimination, housing discrimination, or appeals, contact a New York discrimination lawyer at http://linycemploymentlaw.com. Our phone number is (631) 352-0050.

The full First Department decision is available on the Court’s website.

Today’s civil rights blog discusses Leroy v. Livingston Manor Central School District, a case in which New York federal appellate court, the Second Circuit, analyzed a student’s free speech rights.

Facts as Recited by the Decision

The case involves a high‐school senior, Case Leroy, who attended Livingston Manor Central School District. On April 19, 2021, Leroy and friends took a photograph outside of school hours and off school campus: Leroy lying beside a car, another student kneeling on his neck giving a “thumbs up” sign. The caption on Leroy’s Snapchat story read “Cops got another.” Simultaneously, another student posted the same image with a “Black Lives Matter” logo and the caption “Another one down.”

While Leroy said he did not realize the image resembled the murder of George Floyd until after the post—and that he did not intend that meaning—he removed his post after about seven minutes once he became aware of the reaction. A different student screenshot the post and reposted it publicly on other platforms.

Following the posting:

• The District received a wave of emails and complaints from community members, students, and staff, many expressing that the image was racist or made students feel unsafe.
• The school held an assembly, supervised a student demonstration (students knelt nine minutes to symbolize Floyd’s death), held discussions and training.
• Leroy was suspended for five days, charged under the Code of Conduct for off‐campus misconduct that “interferes with, or can reasonably be expected to substantially disrupt the educational process” and suspended from extracurricular activities for remainder of year.

Leroy then sued the District, alleging it violated his First Amendment right to free speech. The trial court, however, granted summary judgment to the District, meaning the case was dismissed. The court ruled that the suspension was lawful because the off-campus speech caused “substantial disruption.”

Legal Framework

The appellate court reviewed the case under the twin Supreme Court precedents of Tinker v. Des Moines Independent Community School District (1969) and Mahanoy Area School District v. B.L. (2021).

• Under Tinker, student speech at school may be regulated if the speech “materially disrupts class-work or involves substantial disorder or invasion of the rights of others.”
• Under Mahanoy, off-campus student speech receives greater protection: While schools can in some cases regulate off-campus speech, the unique parental and 24-hour nature of students’ lives means schools’ regulatory leeway is “diminished.” The Court did not adopt a broad rule but rather identified three features of off-campus speech that reduce the school’s regulatory interest: (1) geography/parental responsibility, (2) risk of regulating 24-hour student speech, (3) schools’ stronger interest in protecting unpopular student expression.

The appellate court applied those factors by asking: (1) What was the nature of Leroy’s speech (protected or not)? (2) When, where, how did he speak? (3) What was the school’s interest in regulating that speech?

Court’s Analysis & Holding

Nature of the speech: The court found Leroy’s speech did not involve true threats, fighting words, or obscenity—all categories typically outside First Amendment protection. Thus, his speech was “the kind of pure speech” that would ordinarily receive strong First Amendment protection.

When/where/how he spoke: The post took place off campus and outside of school hours, from his personal phone to his Snapchat friends. Although some of his “friends” were students at the school, that fact alone does not convert all his off-campus online speech into on-campus style speech. The court emphasized that social media posts, even if to school-friends, do not automatically place the speech within the schoolhouse gates. The fact it reached the school environment does not by itself justify regulation.

School’s interest: The school argued interests in preventing disruption, maintaining a safe environment, and educating students on racial sensitivity. The court accepted that these are legitimate school interests, but found them insufficient in this case. Specifically:

• The disruption evidence consisted of a 15-20 minute assembly, a student demonstration, some in-class discussion, and external messages/emails. The court found this did not meet the “substantial disruption” threshold under Tinker and Mahanoy.
• The school’s interest in punishing speech because it was offensive or made students feel unsafe was not sufficient to overcome Leroy’s First Amendment right. The court emphasized that the school’s discipline appeared motivated by offensiveness, not by evidence of actual threat, bullying, or fear undermining student learning.
• Although schools may sometimes regulate off-campus speech that causes fear or threat to safety, the record did not establish that here. The court noted that the reaction to Leroy’s post was driven largely by others (students, community, media), not by the speech’s own immediate effect within the school. The fact that third-party reposting and reaction happened did not itself justify the discipline.

Conclusion: Because Leroy’s speech was protected, occurred off campus in a personal context, and the school’s regulatory interests were not strong enough to override his rights, the court held the school’s disciplinary action violated the First Amendment. Accordingly, the district court’s grant of summary judgment to the school was reversed and the case remanded for further proceedings.

Significance

This decision is significant in the evolving doctrine of student speech in the digital age. Some key takeaways:

• It reinforces that off-campus speech (including via social media) remains protected and that schools’ regulatory authority in that sphere is narrower than on-campus speech.
• The decision clarifies that the mere fact a post reaches school friends / school environment does not automatically convert it into on-campus regulated speech.
• It reiterates that the standard Tinker disruption threshold still applies; schools must show more than discomfort, outrage, or external reaction—they must show substantial disruption or a material invasion of rights.
• It underscores that schools’ interest in addressing offensive or racially insensitive speech is legitimate—but that such an interest alone cannot justify punitive discipline for off-campus speech unless it meets the required disruption/safety threshold.
• It provides practical guidance: Courts will weigh the three factors (nature of speech, context of speech, school interest) and emphasize the diminished regulatory leeway for off-campus speech (per Mahanoy).

Practical Implications for Schools and Students

• Schools should exercise caution before disciplining students for off-campus social media posts. They should assess whether the speech truly caused or was reasonably expected to cause a substantial disruption in the school environment, or a concrete safety problem—not merely offended or upset students.
• Schools may respond to offensive posts via assemblies, discussions, restorative practices, or training—rather than immediate punitive discipline—especially when the post was off-campus and removed quickly by the student.
• Students should recognize that off-campus speech is not immune from any regulation—but still enjoys robust First Amendment protection. The more removed the speech is from the school context (time, place, audience, connection to school), the stronger the student’s claim.
• In social-media cases, the transmission effect (how widely the post spread, whether others reposted) is relevant—but cannot by itself establish the disruption or connection needed for school discipline.

Limitations & Further Questions

• The court did not adopt a detailed bright-line test for off-campus speech regulation. As the majority emphasized, Mahanoy left open “where, when, and how” off-campus speech falls outside school authority.
• The decision acknowledges that cases in which speech involves serious harassment, bullying, threats, or clear interference with other students’ rights may still be disciplinable—even if off-campus. The line between “off-campus protected speech” and “regulable speech” remains fact‐intensive.
• Schools may still have stronger defenses when speech is posted to a very broad public audience, targets specific students or groups, or occurs during a school-sponsored event or via school‐provided resources.
• The decision may prompt reassessment of student disciplinary policies to ensure they align with First Amendment protections and reflect the digital reality of student communication.

In short, the Second Circuit in Leroy addressed the challenging terrain of off-campus student speech in the age of social media, reaffirming that students retain free-speech rights outside the school gate and cautioning schools against overly broad regulation of off-campus digital expression. It reversed the lower court’s decision and sent the case back for further proceedings consistent with its analysis.

If you have questions about the Leroy decision, students’ First Amendment rights, or other free speech questions, contact a First Amendment lawyer at Famighetti & Weinick PLLC. Our lawyers are available (631) 352-0050 or (845) 669-0040.

• Can my employer require that I take the COVID-19 vaccination?

Generally, yes. At least one federal court as well as the federal government’s Equal Employment Opportunity Commission (EEOC), have suggested that employers can mandate that employees get the COVID-19 vaccine. Employers may be required to provide reasonable accommodations or exemptions for employees who cannot take the vaccine because of a medical condition or a sincerely held religious belief. General objections to the vaccine are not a lawful basis to refuse. We previously blogged extensively about this question. To learn more about the court decision concerning COVID-19 vaccination, click here. Our comprehensive blog about workplace vaccination requirements is here. Though we agree that it is not an ideal answer, a Texas court has suggested that if employees do not want to take the vaccine for reasons unrelated to a medical contraindication or religious belief, employees can quit and work for an employer that does not require vaccinations.

• Can my college/university require that students be vaccinated against COVID-19?

Generally, yes. Like workplace requirements, colleges and universities can require that students, faculty, and staff be vaccinated against COVID-19. At least one federal court has determined that such COVID-19 vaccination mandates do not violate the Constitution (notably, the Constitution applies only to public colleges, not to private schools). Also like workplace requirements, colleges and universities may have to provide reasonable accommodations for medical conditions or sincerely held religious beliefs. (See below).

• Does the Emergency Use Authorization mean that vaccine mandates are unlawful or unconstitutional?

To our knowledge, to date, no Court has determined that the EUA has any bearing on the lawfulness or constitutionality of vaccine mandates. Further, as of August 2021, the Pfizer vaccine has full FDA approval, so legal arguments based on FDA approval are not likely to be successful in court.

• How do I sue the governor or the state to stop the COVID-19 vaccination mandates?

Legal challenges to the COVID-19 vaccination requirements are likely to fail. In 1905, the United States Supreme Court ruled that a Massachusetts vaccine mandate requiring all citizens to be vaccinated against smallpox was constitutional. With the exception of minor push back recently from SCOTUS about the breadth of the meaning of the 1905 case, courts continue to cite to the Massachusetts case as binding legal precedent about states’ lawful ability to impose measures to control public health risks. Based on the 1905 case, we anticipate most, if not all, challenges to vaccine mandates to fail in court. Each case is different, however, and individual questions about legal challenges to vaccine mandates should be discussed with an experienced civil rights attorney.

• I am required to get the vaccine or to be regularly tested for COVID-19. Is that legal?

Generally, yes. The EEOC has suggested that viral testing for COVID-19 is permissible under workplace discrimination laws. In other words, tests which determine whether an individual is currently infected, are lawful. Antibody testing, however, may violate the Americans With Disabilities Act, because antibody tests do not confirm a current infection. So, in sum, regular testing for current COVID-19 infection is likely lawful. Moreover, courts will likely view the testing option as a reasonable accommodation for individuals who cannot get vaccinated and, practically speaking, many people would view it as a reasonable accommodation for individuals who do not want to get vaccinated.

• Does weekly COVID-19 testing violate any other laws, such as the FLSA?

Employers mandating COVID-19 testing may be required to pay employees for the time spent getting the testing and for the cost of the test. The Department of Labor suggests that employers must pay employees for time spent waiting for and receiving medical attention, which the employer directs the employee to get. Moreover, if COVID-19 testing is necessary for an employee to effectively perform his or her job, the employee must be compensated for taking time to get tested, even if done on a day off.

• What do I have to show to get an exemption from vaccination due to a medical condition?

To obtain an exemption from a COVID-19 vaccination mandate because of a medical condition, individuals must show that the vaccination is contraindicated for a medical condition for which the individual is diagnosed. This means that individuals cannot simply allege that they have a particular condition and that the individual is worried that the vaccine will be harmful based on the condition. Rather, a doctor should be able to articulate the particular danger that the vaccination poses to the person’s medical condition. Currently available information suggests that few, if any, medical conditions will adequately meet this standard, other than allergies to COVID-19 vaccination ingredients.

• What do I have to show to get an exemption from vaccination due to a religious belief?

Like medical exemptions, religious exemptions to vaccination must be particularized. In other words, individuals cannot say generally that their religious beliefs prohibit vaccinations. Rather, individuals should be prepared to describe the teachings and/or beliefs which form the basis of the objection to vaccination. Explanation from religious leaders may be helpful in describing the belief. Further, the religious belief must be sincerely held. Applicants requesting an exemption for a religious belief should be prepared to describe their adherence to their religion and other ways that they apply their beliefs to their life, such as for example, eating or not eating certain foods, or taking or not taking certain medications.

As issues related to mandatory vaccinations continue to emerge, our civil rights attorneys will update this vaccination FAQ. Be sure to check back frequently for updates, and subscribe to our social media pages to receive alerts about updates.

This FAQ is provided for general information purposes only and should not be accepted as legal advice for your particular situation. For specific questions about particular situations, speak to one of our attorneys at 631-352-0050.

COVID-19 Vaccination Mandate FAQ

Throughout the summer of 2021, as vaccinations rates decline and the virus continues to spread, mandatory vaccination requirements are rolling out. Employers, governments, schools, colleges, and universities are all implementing vaccination requirement rules. In Indiana, Indiana University decided to require that all of its students must be vaccinated against COVID-19 to attend the school’s next semester.

Eight students challenged the University’s rule and the Seventh Circuit Court of Appeals heard the challenge. Today’s Long Island civil rights blog discusses the decision.

In Klassen v. Trustees of Indiana University, the Seventh Circuit reviewed the constitutionality of the University’s policy which requires all students to be vaccinated against COVID-19. Eight students challenged the requirement, arguing that the requirement violates their Fourteenth Amendment right to due process. The students asked the court to implement an immediate injunction, stopping the school from implementing the rule.

The Seventh Circuit needed only four pages of opinion to dismiss the student’s challenge and rule that the University’s requirement does not violate the Constitution. The Court relied heavily on the 1905 case, Jacobson v. Massachusetts. In Jacobson, the Supreme Court upheld a Massachusetts law which compelled all members of the public to get vaccinated against smallpox.

The Seventh Circuit ruled that the issue of vaccinations for college is easier to resolve than the issue in Jacobson. In Jacobson, the state required the entire public to be vaccinated, without exception. In contrast, Indiana University’s rule has exceptions to accommodate religious beliefs and medical conditions. (In those cases, instead of vaccinations, students must wear masks and undergo covid testing).

Further, the rule in Jacobson applied every adult member of the public. In contrast, the Indiana rule applies only to individuals attending the school. The Court suggested that individuals who do not want to be vaccinated, do not have attend Indiana University; those individuals can get education elsewhere.

The Court also noted that vaccination requirements are common in higher education and that many schools require vaccinations against measles, mumps, tetanus, and meningitis. Because close contact with others is inevitable at schools, and because vaccinations protect not only the individual vaccinated, but those that person comes in contact with, universities may decide how to keep other students safe.

The Court compared vaccinations to other actions Universities may take without offending the Constitution. The Court noted that the plaintiffs have a right to hold property, and the state cannot take property without due process. But, the plaintiffs surrender property to the state in the form of tuition, without violating the Constitution.

Similarly, under the First Amendment, states cannot dictate what people read or write, yet state colleges can nonetheless require that students read and write things that the students might prefer not to. Requiring that students follow a particular curriculum is not offensive to the Constitution.

Taking cues from these other examples, the Seventh Circuit concluded that if public colleges can require that students surrender property (tuition money) and that students read or write particular things as part of a curriculum, it seemed more than obvious that universities could impose other conditions implemented with the purpose of keeping the student population safe.

In sum, the Seventh Circuit ruled that state university’s requirement that students be vaccinated against COVID-19 is constitutional. This decision is useful in predicting how other courts across the country may rule on similar requirements.

But, the Seventh Circuit decision leaves open a few unanswered questions. First, the Court did not address that COVID-19 vaccines, as opposed to vaccines against for example, measles, mumps, and tetanus, does not have full FDA approval yet. The vaccines are approved only for emergency use. The Court did not address this concern asserted by many who currently oppose getting vaccinated right now.

Further, the Court determined that students who do not want the vaccine, can attend other schools which do not require the vaccination. But, as presumably more and more colleges and universities impose vaccination requirements and educational opportunities decline for the unvaccinated, will those conditions alter a due process analysis? We’ll have to wait to find out.

As vaccination requirements continue to roll out across the country, challenges to those rules will continue. If you have questions about mandatory vaccination rules, contact a Long Island civil rights lawyer at Famighetti & Weinick PLLC. We also serve the Hudson Valley in New York. Our phone number for both locations is 631-352-0050.

Are College Vaccination Requirements Constitutional?

Indeed, in the ensuing months of the pandemic, court after court, including the Supreme Court, continued to extend deference to the states’, when challengers sought a determination that regulation was unconstitutional. On November 25, 2020, however, SCOTUS, reconstituted as a strong conservative court, pushed back on New York’s regulations effecting houses of worship. Today’s Long Island civil rights blog discusses the case.

In Roman Catholic Diocese of Brooklyn v. Cuomo, several religious groups sued New York’s governor Cuomo, alleging recent regulations creating color coded zones based on a region’s COVID-19 outbreak, were unconstitutional. We blogged about the case when it was before New York’s federal appellate court. In brief, regions with higher outbreaks were required to comply with different regulations than regions with less significant outbreaks. The harsher regulations included which businesses could open and which must close. Further, under certain outbreak conditions, religious gatherings were limited (but not prohibited altogether). New York’s Second Circuit upheld the restrictions on religious gatherings as constitutional.

Upon reaching the Supreme Court, a different outcome resulted. In a decision with five separate opinions by the justices, SCOTUS determined that New York’s regulations were unconstitutional with respect to the restrictions placed on houses of worship. The key component’s of the decision are that the Court believes religious institutions were singled out for harsher treatment than secular businesses. For instance, the Court found that certain manufacturing facilities, and other businesses like acupuncturists, garages, and camp grounds, were not limited by a number of people that could enter those facilities. But, houses of worship were subject to occupancy restrictions.

Additionally, the Court determined that some comments made publicly by Governor Cuomo evidenced his intent to target to houses of worship.

Further, Justice Gorsuch pushed back on the relevance of the Court’s 1905 decision. Justice Gorsuch wrote that that case concerned different regulations, different rights, and thus, required a different analysis.

Though the case was decided in the context of a motion for an injunction, which is subject to a different type of review than if the case was being ultimately and finally decided on the merits, this decision signals a shift in the Court’s views of COVID-19 regulations. Indeed, just months ago, SCOTUS decisions suggested the Court would continue to defer to states’ policy decisions. Now, with a new Court composition, the Court is indicating its readiness to push back on state regulations.

If you have questions about the constitutionality of COVID-19 regulations, contact a Long Island civil rights lawyer at 631-352-0050, or follow our blog by subscribing to our Facebook page.

SCOTUS Pushes Back on COVID-19 regulations

Throughout the COVID-19 pandemic, the civil rights lawyers at Famighetti & Weinick PLLC have been closely following the lawfulness of government restrictions implemented to control the spread of the virus. From the earliest days, our video blog series, “Lockdown Video Series,” predicted that most coronavirus regulations would be declared constitutional by courts.

As the months of the pandemic lumbered along, we continued to follow developments in the law. Our June 2020 blog discussed failing legal challenges to COVID-19 regulations, and partner, Matt Weinick, published a legal article discussing the constitutionality of face mask requirements and temperature checks at work. Again, our analysis concluded that, because of the Supreme Court’s strong deference to a government’s right to control the spread of disease, most constitutional challenges would fail.

In yet another decision, New York’s federal Court of Appeals, the Second Circuit, issued a decision on November 9, 2020 holding that New York’s color coded covid zones which vary the degree to which restrictions exist in each zone, are constitutional with respect to restrictions imposed on houses of worship. Today’s Long Island civil rights blog discusses the Agudath Israel of America v. Cuomo decision.

New York’s Governor Cuomo issued an executive order concerning COVID-19 hotspots. The order creates yellow, orange, and red zones. The Department of Health is empowered to determine each zone in accordance with the severity of the coronavirus outbreak in each zone. Each zone then has a different level of restrictions within the zone.

The red zone is the most restrictive, applied to areas with the most severe outbreak. In red zones, non-essential gatherings of all sizes are prohibited, non-essential businesses must close, schools cannot instruct via in-person methods, restaurants cannot serve seated patrons, and houses of worship are limited by occupancy.

Several religious groups and leaders in New York sued Governor Cuomo alleging that the executive order violates the First Amendment. Of course, the First Amendment protects freedom of religion. The trial court denied the plaintiffs’ request to impose an injunction to bar enforcement of the executive order. In other words, the plaintiffs asked the court to stop the state from enforcing the order, but the court denied the request. Then the plaintiffs appealed.

After discussing some initial procedural issues, the Appellate Court turned to the question of whether the First Amendment challenge to the executive order had merit. The Court determined that the challenge could not succeed.

The Court first reviewed the law concerning the constitutionality of government conduct which impacts religious freedom. Laws which specifically target religion are subject to a strict test to determine whether there is a constitutionally permissible basis for the law. But, laws which are general and not specifically targeted towards religion are generally constitutional, even if they incidentally impact religious practice.

So, the primary question concerning the executive order is whether the order is general and neutral with respect to religious practice, or whether the order targets religion. The majority of the Second Circuit panel determined that the executive order concerning “zones” was constitutional, notwithstanding its impact on religious practice. To reach this decision, the Court noted that the order equally impacts (or impacts to a greater degree) schools, restaurants, and comparable secular gatherings. The Court relied on Chief Justice John Roberts’ recent decision which found similar restrictions on religious gatherings to be constitutional.

A dissenting judge argued that Justice Roberts’ decision came early in the pandemic when governments were continually working to define their response to the pandemic while facts on the ground were changing. But, the majority disputed that such an argument should alter the result in Agudath because the “central facts” from May 2020 still exist today, to wit, there is no known cure or available vaccine, the pandemic has killed hundreds of thousands of Americans, and people may be infected and unknowingly infect others. Thus, the order is constitutional.

In sum, the Second Circuit again afforded deference to a state government’s plan to battle the COVID-19 pandemic. Because the executive order does not treat religious practice worse than any other conduct, the Governor’s order does not violate the First Amendment’s guarantees of freedom of religion.

If you have further questions about the constitutionality of COVID-19 mitigation efforts, please visit our Youtube channel and blog or call a New York civil rights attorney at 631-352-0050.

Does New York’s red zones violate the First Amendment?

But, in certain contexts, such as schools, the First Amendment does not apply as broadly as it does to general citizen First Amendment speech. In some areas, such as public workplaces and public schools, the First Amendment recognizes that the government has a strong and important interest in regulating speech. So while students and government workers do not completely shed their First Amendment rights in schools and workplaces, different rules apply to determine whether the First Amendment applies.

Today’s Long Island civil rights blog discusses a First Amendment claim in the context of a public college.

In Collins v. Charter Oak State College, a student sued his college and a professor, because the professor removed a post he made from an online college message board. For one class assignment, the professor asked students to watch a video, then answer questions about the video and post them to the class’s virtual classroom message board.

Collins posted to the board, but instead of answering the questions, he critiqued the video and the assignment. The professor told Collins that she did not mind some humor, but she could not tolerate critiques which could be offensive to other students. The professor removed the blog. The student protested, accusing the professor of censorship, then promising that she would be “educated on the civil rights of . . . students.”

Collins sued, but the trial court dismissed his case, holding that his First Amendment rights were not violated. Collins appealed.

On appeal, the Second Circuit noted that the Supreme Court has identified several tests to determine whether a student’s speech is protected by the First Amendment. In Collins’s case, one of two of these tests could potentially apply.

The first test is known as the Hazelwood standard. Under the Hazelwood test, Courts look at whether the student’s speech related to school sponsored expressive activity. School sponsored activity exists when students and parents would reasonably believe the speech bears the imprimatur of the school. If the speech is school sponsored, then the educators may regulate the speech if the regulation is reasonably related to a legitimate pedagogical concern.

Under the Tinker test, Courts look at whether the speech was a student’s personal expression that happens to occur on school premises. Then, educators may only regulate speech which disrupts classwork and discipline.

Collins argued that his speech should be evaluated under Tinker, but the trial court and appellate court disagreed. The Court held that his speech had the “hallmarks” of school sponsorship, including being made as part of a school assignment, it was made under the supervision of a faculty member, and the message board was available because the school provided it as part of the class and was made available only to students, instructors, and administrators. Thus, Hazelwood applied.

Next, the Appellate Court ruled that the professor’s deletion of the post related to pedagogical concerns. On this point, the Court looked at Collins’s own admission that his post critiqued the assignment and materials.

The Court summarized its decision by highlighting its view that the case was about nothing more than a student who, instead of responding to an assignment as instructed, complained about the materials usefulness for teaching. The Court found no Constitutional violation existed when the professor removed such material from the message board.

First Amendment issues are rarely clear cut, but because of the latitude afforded to public schools and public workplaces to regulate students and workers, First Amendment issues can be even blurrier in such circumstances. Famighetti & Weinick PLLC are experienced in handling First Amendment matters and can assist in evaluating First Amendment issues.

To speak to a Long Island First Amendment lawyer about free speech or other First Amendment freedoms, contact us at 631-352-0050.

When is a student’s speech protected by the First Amendment?

This week, a Brooklyn federal judge again rejected another constitutional challenge, this time brought by a Long Island strip club and its owner. Today’s Long Island civil rights blog discusses the case and the judge’s decision.

In McCarthy v. Cuomo, the plaintiffs were the owner of a strip club, and the strip club itself. The essence of the lawsuit was similar to other challenges we’ve written about, except the suit also alleged that the plaintiffs were treated differently because of the type of business it conducts – a gentleman’s club. Generally, the plaintiffs alleged that the Governor’s shutdown orders and social distancing orders, violated the state and federal constitutions. They further alleged that the federal government’s Paycheck Protection Program unlawfully prohibited them from applying because of the type of business they conduct.

More specifically, the plaintiffs alleged the following violations against Governor Cuomo: (1) Fourth Amendment seizure; (2) First Amendment freedom of speech; (3) First Amendment assembly; (4) Fifth Amendment Takings; (5) Fourteenth Amendment due process; and (6) Article IV right to a republican form of government. Plaintiffs alleged some similar violations under the New York State constitution and constitutional violations against the federal government.

Before the court was plaintiffs’ request for emergency relief, legally referred to as a temporary restraining order. On such a request, the plaintiffs are not required to prove the defendants’ violations, but must merely show that they have a likelihood of ultimately succeeding at the conclusion of the case. Notwithstanding this standard, the Judge determined that each claim was not only unlikely to succeed, but were “doomed to fail.” Each claim is discussed below.

Preliminarily, the Court noted that at least thirteen similar challenges have been brought across the country, from Florida, to Illinois, to Oregon, and that in each challenge, the government’s regulation was upheld as lawful. The judge further set the tone for evaluating such challenges, referring to the leading Supreme Court case dating back to 1905, Jacobson v. Commonwealth of Massachusetts. In Jacobson, the court held that governments may lawfully protect communities from disease and established a remarkably high standard to determine when a regulation used to combat a pandemic could be unconstitutional.

Turning to the claims, the court quickly rejected each. On the Fourth Amendment seizure claim, the Court recited law requiring a showing that the government conducted an investigation either as an employer, or as part of traditional law enforcement activities. Neither applied here so no Fourth Amendment claim could exist.

On the First Amendment claims (both analyzed the same) the Court concluded that the covid-19 regulations were content-neutral, meaning the regulations are unrelated to the content of the expression. Thus, the regulations are not subject to the highest level of constitutional scrutiny. Applying an intermediate level of scrutiny, the court determined the regulation must be narrowly tailored to serve a significant government interest. The Judge could “think of few governmental interests more pressing than protecting the public” from a deadly disease and that a sister court properly analyzed why New York’s regulations are narrowly tailored. Accordingly, the First Amendment claim was unlikely to succeed.

The Court similarly doubted the likelihood that the Fifth Amendment takings claim could succeed. Here, the Court noted that the plaintiffs voluntarily chose to not use their property in some other lawful way, such as take out food and drinks. Plaintiffs’ “voluntary” decision to close the business instead of engaging in some other lawful business could not constitute a government taking.

On the Fourteenth Amendment claim, the Court looked at both the due process clause and the equal protection clause. For due process, the Court noted that such claims require the plaintiff show deprivation of a property interest and that the plaintiffs failed to explain how they were deprived of a property interest.

Similarly, for the equal protection claim, plaintiffs were required to show that the government action being challenged lacked “some” legitimate purpose. The court determined that “given the seriousness of the COVID-19 pandemic,” plaintiffs could likely not show the Governor’s orders lacked a rational basis.

The remainder of the claims had fatal procedural flaws. Eleventh Amendment immunity barred plaintiffs’ challenges based on the state constitution. For the federal constitutional claims against the federal government, the claims were barred because the plaintiffs invoked a statute (Section 1983) which does not allow for lawsuits against the federal government.

In sum, this latest decision again does not foreclose the possibility that a valid constitutional argument against covid-19 mitigation regulations can be made. But, the decision reinforces that plaintiffs face an uphill battle. As we suggested when the pandemic started, the government’s interest in controlling the disease’s spread will more likely than not be a more important interest, than the impact on individual freedoms.

If you have questions about the constitutionality of covid-19 government regulations, contact a Long Island civil rights attorney at Famighetti & Weinick PLLC at 631-352-0050.

Challenge to Covid-19 regulations fails

Constitutionality of Shutdown Orders

On May 15, 2020, United States District Judge Gary R. Brown (Eastern District of New York) issued a decision relating to New York’s business shutdown order, also known as the Pause. In sum, Governor Cuomo’s order directs that all business which are non-essential must operate via telecommuting only and must reduce their in-person workforce by 100%. Essential businesses may stay open with no reduction in force required. The order allowed for enforcement under the Public Health Law with consequences for businesses which did not comply.

Judge Brown’s order concerns a case filed by Omnistone Corp. and its owner. Among other things, Omnistone manufactures and installs stone countertops. In its complaint, Omnistone alleges that it requires its employees to wear protective equipment and that it maintains space between workers’ workstations. In other words, Omnistone suggested that it can safely carry on its business.

Nonetheless, Omnistone was deemed non-essential, but continued to operate, believing its business was essential to provide sinks in homes, and flooring. The Fire Marshall issued an “order to vacate” to Omnistone and further ordered that it cease its operations.

Based on these facts, Omnistone filed suit against Andrew Cuomo, New York State, and Nassau County. The lawsuit alleged that the shutdown order violates several provisions of the U.S. Constitution, including the due process clause, the contracts clause, the interstate commerce clause, and the Fifth Amendment’s takings clause. The lawsuit sought immediate injunctive relief from the court.

Judge Brown quickly disposed of Omnistone’s request for emergency relief. First, the court noted that Omnistone did not show any irreparable harm, arguing only that it risked losing skilled workers if it could not operate. This issue relates only to the question of whether issuance of an emergency order is appropriate, though.

Turning to the question of the merits of the plaintiffs’ claims, the court was similarly unpersuaded. Notably, the court observed that, “in the midst of a catastrophic global pandemic of a kind not seen for more than a century, it is difficult to imagine how counsel could argue that the ‘EO does not serve a legitimate public purpose'”, a requirement to show the order violates the constitution.

Judge Brown further observed that “when movants seek to compare preventing widespread sickness and death to their right to sell stone countertops, not much reflection is required to resolve whether this presents a serious question.” In other words, the court was not persuaded that the plaintiffs presented meritorious claims.

But, the court expressed some concern whether the due process and Fifth Amendment claims had merit. On these claims, Judge Brown was unable to determine on the record before the court, whether the state provided constitutionally adequate procedures for businesses to challenge their designation as either essential or non-essential. The court asked the parties to submit further briefing on the issue. Thus, we will monitor the case as it proceeds.

In sum, though the Omnistone decision relates to a request for emergency relief and does not ultimately resolve the question of whether the shutdown orders are constitutional, the decision suggests the orders are constitutional, provided the state provides an adequate means to challenge the designation of essential versus non-essential.

Constitutionality of Social Distancing

On May 18, 2020, United States District Judge Denise Cote (Southern District of New York), issued a decision concerning the constitutionality of social distancing orders in the City of New York. Specifically, the order relates to a plaintiff’s challenge that the City’s ban on public gatherings violates her First Amendment right to freedom of speech.

Like Judge Brown, Judge Cote’s decision does not suggest the question is a close call. Judge Cote noted that speech on matters of public concern is at the heart of the First Amendment, so it deserves special protection. Nonetheless, the First Amendment is not absolute.

Most importantly, under Supreme Court precedent, communities have a right to protect themselves from disease, so judicial scrutiny of measures taken for disease protection are limited to determining whether no substantial relation exists between the regulation and the public health, or whether the regulation is beyond all question a violation of fundamental laws.

The court recited some other rules concerning First Amendment analysis, but which are better left for law school con-law classes. Suffice to say for this blog, the court determined that New York City was permitted to regulate First Amendment activity under these circumstances, if the law was narrowly tailored to serve a legitimate government interest, and if it left open some other avenue of speech.

Applying the law to the New York City rule, the Court determined the rule is constitutional. First, the rule did not target any particular viewpoint or the content of the protests or speech. Rather, the rule targets the harmful effects of public gatherings due to the risk of an incurable disease.

Next, the court observed that the plaintiff conceded the City has a legitimate government interest in controlling coronavirus. But, the court emphasized that the City was trying to “slow the spread” of a disease which killed and hospitalized tens of thousands of New Yorkers “in less than three months’ time.”

With such severity, Judge Cote held the City’s measures were reasonable and narrowly tailored. The Court noted the law was implemented based on science and medical information and the court would not “second guess” those opinions.

Finally, Judge Cote acknowledged that protesting by one’s self is not ideal, but the alternative channels of protest, such as online, media, and alone in public, were acceptable under the circumstances. In sum, the court held that the ban on public gatherings is constitutional and the case was dismissed.

These cases support Famighetti & Weinick PLLC’s initial opinions that covid-19 mitigation regulations are generally constitutional. Some courts have stricken down rules imposed by governors in states such as Wisconsin and Oregon. Those decisions, however, relate to how the rules were implemented under their respective state laws, not whether the rules are constitutional under the U.S. Constitution.

As we follow the evolution of the law concerning the constitutionality of social distancing and business shutdown orders, follow our social media channels to stay updated with our blogs. For specific questions, please contact our civil rights lawyers at 631-352-0050.

Are business shutdown orders unconstitutional?

Elizabeth Naumovski worked for SUNY Binghamton as an assistant basketball coach. Soon after she started working, rumors circulated that Naumovski was having an “inappropriate relationship” with “J.W.,” a gay female-student athlete. The rumors continued into the next academic year, so the school responded by imposing restrictions on interactions between students and coaches.

Yet, the rumors allegedly continued to persist into the next year. In early February 2010, the defendant head coach and athletic director spoke by phone and agreed to terminate Naumovski, allegedly because Naumovski demonstrated favoritism to some students.

Two days later, J.W.’s family received a letter alleging J.W. was “screwing” Naumovski. J.W. told Naumovski. About a week later, J.W.’s mother requested a meeting with Norris, but they agreed to meet after the season ended. In the interim, Norris fired Naumovski, alleging the reason was performance.

Based on the foregoing, Naumovski sued the school, the head coach, and the athletic director alleging claims of discrimination based on sex, perceived sexual orientation, and national origin. She alleged the discrimination violated statutes including Title VII, Title IX, and the New York State Human Rights Law. She further alleged violations of the right to equal protection arising from Fourteenth Amendment, as well as violations of the First Amendment. Ultimately, parts of the case were appealed and the Second Circuit Court of Appeals was asked to review issues concerning Naumovski’s claims under the United States Constitution.

The law has been long settled that the equal protection clause of the Constitution’s Fourteenth Amendment prohibit sex discrimination in government workplaces. In the most general ways, courts analyze Fourteenth Amendment discrimination claims the same way as courts analyze discrimination claims brought under statutes such as Title VII and the New York State Human Rights Law.

Some differences have been recognized though. For example, constitutional claim must allege the defendants acted “under color of state law,” constitutional claims may be brought against individuals whereas Title VII claims may be brought against only the employer-entity, and constitutional claims do not allow for vicarious liability to the employer.

The Naumovski case, however, discussed another possible distinction between constitutional and statutory claims of discrimination, namely the level of causation a plaintiff must show. Historically, Title VII and Fourteenth Amendment discrimination claims were analyzed identically. Title VII is understood to require a showing that discrimination was a “motivating factor” in the employer’s decision to take action against an employee. This is so because Congress amended Title VII to specifically state that Courts should apply the lessened causation standard of motivating factor.

But, Courts have also looked to tort law when analyzing discrimination claims. Tort law requires plaintiffs to show that a defendant’s conduct was the “but for” reason for an injury. Applying this principle, the Supreme Court (and the Second Circuit in other circumstances) has said that when a statute does not indicate some other standard of causation, such as motivating factor, then the appropriate standard is “but for” causation. Using these principles to look at discrimination claims arising the Constitution, the Second Circuit determined that plaintiffs must show “but for” causation when suing under the Fourteenth Amendment, pursuant to 42 U.S.C. 1983. This constitutes a heightened standard as compared to Title VII which requires only a showing that discrimination “played a role” in the employment decision.

The Naumovski decision made some other minor, but notable points. The Court acknowledged that a plaintiff may have a discrimination claim based on sex stereotyping if an employer believed the employee was more likely to have engaged in a sexual relationship based on the employee’s sex.

Moreover, the Second Circuit rejected that the cat’s paw theory of liability can be used in a constitutional case. Using a cat’s paw theory, employers are liable for discrimination if they negligently adopted the discriminatory animus of a lower level employee.

In sum, the Naumovski case represents several set backs for public employees alleging discrimination claims. Claims of employment discrimination asserted under the Fourteenth Amendment are now subject to the heightened causation standard of but-for, as opposed to Title VII’s motivating factor standard. Moreover, the cat’s paw of liability has been rejected as a basis for imposing liability against a public employer.

If you have questions about employment discrimination, Fourteenth Amendment claims, causation in discrimination cases, or public employees’ rights, contact a Long Employment lawyer at Famighetti & Weinick PLLC at 631-352-0050. Our website is at http://linycemploymentlaw.com.

14th Amendment Heightened Discrimination Standard

On January 8, 2011, Jared Loughner killed six people and injured thirteen others while opening fire at a political rally for Democratic Congresswoman Gabrielle Giffords in Tucson, Arizona. Giffords was seriously wounded during the attack. Before the attack, Sarah Palin’s political action committee, “SarahPAC,” produced a map that displayed images of a crosshairs target over specific Democratic congressional districts. For some, this evoked images of violence.

Among those pictured on the map was Congresswoman Giffords’ district. Though the map had been publicized during the earlier political controversy surrounding the Affordable Act, in the wake of the Loughner shooting, speculation swirled that the shooting was connected to the crosshairs map.

Six years later, in response to another shooting that left Republican congressman Steve Scalise seriously injured, the New York Times published an editorial called “America’s Lethal Politics”. The article asserted that both shootings exemplified the “vicious” nature of politics in America. To support this position, the article reminded its readers of the map circulated by Sarah Palin’s political action committee. The editorial suggested that Giffords and 19 other members of Congress were pictured on the map. In other words, the editorial linked Sarah Palin and the 2011 Loughner shooting.

Soon after the editorial was published, Palin sued the New York Times in federal court, alleging defamation under New York State law. The Times then moved to dismiss Palin’s complaint, arguing that the allegations did not satisfy the legal requirements for proving defamation.

After the Times made the motion, the U.S. District Court Judge Jed Rakoff held an evidentiary hearing on the motion to dismiss, an “unusual procedural turn.” The purported purpose of the hearing was to answer the question of whether the Times issued the editorial with “actual malice.” When public figures, such as Palin, sue for defamation, they must meet this higher standard of showing actual malice. “Actual malice” means “with knowledge that it was false or with reckless disregard of whether it was false or not.” (Ironically, this standard was initially articulated by the Supreme Court in an earlier New York Times case from 1964).

At the evidentiary hearing, James Bennet, the author of the editorial, testified that he did not know about previously published articles that confirmed that there was no link between Palin and the Loughner shooting. Bennet also testified that he did not read the initial version of the editorial, which included a hyperlink that also confirmed that there was no connection between Palin and the Loughner shooting. Judge Rakoff credited Bennet’s testimony and concluded that he committed a simple mistake rather than “actual malice” and, thus, granted the Times’ motion to dismiss.

Writing for the Second Circuit, Judge John M. Walker, Jr. concluded that Judge Rakoff’s reliance on the evidentiary hearing to decide the motion to dismiss violated the Federal Rules of Civil Procedure. When faced with deciding whether to grant or deny a motion to dismiss for failure to state a claim, federal judges are guided by Federal Rule of Civil Procedure 12, which requires courts to look only at the allegations of the complaint in deciding whether to dismiss a case. The two exceptions to the rule which sometimes allow a court to look outside the allegations of the complaint, did not exist in Palin’s case. Further the Circuit Court rules that Judge Rakoff improperly invoked Rule 43(c), which addresses taking testimony at trail, not for an evidentiary hearing on a motion to dismiss.

More importantly, the Second Circuit ruled that Judge Rakoff inappropriately relied on Bennet’s testimony that Bennet did not know about any articles written prior to the editorial that confirmed that there was no link between Palin and the Loughner shooting and that he did not read the initial version of the editorial, which included a hyperlink to an article that made the same confirmation. Rather, Judge Rakoff, should have just relied on Palin’s complaint indicating that Bennet wrote the editorial with “actual malice.” Judge Walker concluded by reversing Judge Rakoff’s ruling. Because of this reversal, both parties in this case will move forward to the discovery stage.

The Palin case is an instructive decision about how courts must handle motions to dismiss. But, this point is largely academic and relevant to lawyers and litigants. The Palin case, however, may provide food for thought about the issues on which this case touches.

If you have questions about defamation law, libel, slander, First Amendment rights, or the Palin decision, contact a Long Island civil rights lawyer at Famighetti & Weinick PLLC. Our phone number is 631-352-0050 and our website is http://linycemploymentlaw.com.

Lucas Klirsfeld, a Hofstra Law School student and intern with Famighetti & Weinick PLLC contributed to today’s blog. The facts were taken from Palin v. New York Times, No. 17-3801-cv, 2d Cir. Aug. 6, 2019.

Sarah Palin’s Defamation Lawsuit

In Knight Institute v. Trump, a group of individuals sued President Trump. The individuals criticized the President on Twitter, then they were blocked from the President’s personal Twitter account. The individuals alleged that the President’s actions constituted a violation of the First Amendment’s free speech guarantees. The Southern District of New York agreed.

On appeal, the Second Circuit considered whether President Trump’s use of Twitter’s blocking function constituted conduct in violation of the First Amendment. The government argued that the Presidents use of his personal Twitter account (@realDonaldTrump), is private conduct. Private conduct is not regulated by the First Amendment whereas government conduct is. Indeed, the government noted that the President established his Twitter account in 2009, long before he became president.

But, the parties agreed that President Trump uses his Twitter account as a means for communicating about his administration and for interacting with the public. The Court determined that the president’s Twitter account generated an extraordinary level of engagement. Further, the Court determined that the President does not generally limit the users who can engage with his account.

Moreover, the Court determined that the President’s Twitter account bears other indicia of an official state run account, including that it is registered to the 45th President of the United States, photographs show the President engaged in official business, and the President and members of his administration describe the account as official. In fact, the Court noted that the administration describes the account as a “main vehicle” for engaging in official government business and the National Archives treats the account as official records.

After reaching these factual determinations, the Court rejected all of the government’s arguments and held that the evidence was “overwhelming” that the President’s use of Twitter constitutes official government action. The Court then recounted this overwhelming evidence, including the President’s declaration that the account is “Modern Day Presidential,” his administration’s description of the account as they way in which the President communicates with the American people,

This conclusion is important because, as the Court next noted, the First Amendment restricts only government action, not private action. In other words, if President Trump were acting solely as a citizen when blocking Twitter users, the First Amendment would not apply. But, if President Trump was acting as President, then the First Amendment would apply. In sum, the Court determined that the President’s Twitter account is not private.

The inquiry does not end here though. The next question is whether the President’s Twitter account is a public forum. Public forums cannot limit speech based on viewpoints. In other words, when a forum is public, the government cannot prohibit an individual from speaking about a particular point of view. Here, the court held that the President uses Twitter as a vehicle for governance and opened its interactive features up to the public. By doing so, the President created a public forum and could not censor particular accounts because he disagrees with the users’ viewpoints.

The Court further noted that it was not deciding several issues. First, it was not deciding whether an elected official could exclude individuals from entirely personal social media accounts. Second, it did not decide whether private social media companies, such as Twitter, Facebook, and Youtube, are bound by the First Amendment.

The Knight case is an important reminder about the impact of social media in the current era of political debate. Moreover, Knight re-affirms that centuries old principles embodied by the First Amendment, apply to the newest forms of communication, such as social media.

If you have questions about the First Amendment, civil rights, or free speech, contact a Long Island civil rights attorney at Famighetti & Weinick PLLC. Our telephone number is 631-352-0050 and our website is at http://linycemploymentlaw.com.

Twitter and the First Amendment

Close family relationships enjoy constitutional protections. In fact, courts have determined that two amendments protect individuals’ rights to enter into and enjoy close personal relationships. The First Amendment was determined to protect close family relationships in 1999 by the Second Circuit Court of Appeals in New York. The First Amendment prohibits the government from intruding into a familial relationship as retaliation for one family member’s exercise of free speech rights.

The relationship at issue must be very close. For instance, a husband and wife, parent and child, and brother and sister (or other siblings), have all been determined to be close enough so as to constitute a constitutionally protected familial relationship. Two longtime childhood friends, however, are not constitutionally protected as an intimate association, even if those friends consider themselves so close as to constitute a de facto family.

First Amendment intimate association claims are frequently brought in the context of employment cases where two employees are married or are otherwise closely related, and also work for the same government employer. For example, if a husband and wife both work for the same police department and the husband exercises free speech rights in the workplace (meaning the husband has spoken as a citizen on a matter of public concern), then the employer violates the First Amendment if it took an adverse employment action against the wife in order to retaliate against the husband.

The First Amendment is not the only amendment which provides protection for intimate associations. The Fourteenth Amendment also protects close familial relationships under its substantive due process provisions. Like the First Amendment, the Fourteenth Amendment similarly protects only close family relationships such as husband and wife, parents-children, and siblings. It has long been settled that the conduct at issue must be shocking, arbitrary, and egregious. This high standard meant that only the worst and intentional government conduct would give rise to an intimate association claim.

But, an open question in New York was whether the government’s action must be intended to target the familial relationship, or whether the interference could be incidental. In Gorman v. Rensselaer County, New York’s federal appellate court, the Second Circuit Court of Appeals, settled the question. The Second Circuit held that the government’s conduct must indeed intentionally interfere with the relationship at issue. The decision relied on other cases noting that due process is implicated only by deliberate decisions of government officials. The circuit emphasized that indirect and incidental conduct cannot give rise to a due process intimate association claim. First Amendment intimate association claims, however, continue to be analyzed the same and do not require a showing of intentional interference.

In sum, the United States Constitution protects close and intimate associations among family members. The government cannot arbitrarily and intentionally interfere with protected familial relationships nor can the government retaliate against one family member for another family member’s engaging in protected First Amendment activity. But, the bar has been raised for intimate association claims under the Fourteenth Amendment.

The constitution is not the only law which protects relationships, particularly in the employment context. Title VII and other anti-discrimination laws, have been held to protect zones of interest, meaning that an employer can discriminate or retaliate against an individual by taking action against another employee who is sufficiently close to the employee. Again, a common example would be retaliating against a husband because the wife complained about unlawful discrimination. State laws also explicitly prohibit workplace discrimination based on familial status.

If you have questions about intimate association claims, the First Amendment, the Fourteenth Amendment, or the Gorman case, contact a Long Island civil rights lawyer or employment lawyer at Famighetti & Weinick PLLC at 631-352-0050.

Intimate Association claims

The Constitution has limits. The First Amendment is not unlimited and neither is the Fourth Amendment. For instance, the Fourth Amendment places limits on a police officer’s arrest power. Specifically, the Fourth Amendment requires police officers to have probable cause before making an arrest, meaning a reasonable belief that a crime has been committed. Otherwise, the arrest is unlawful. Establishing probable cause, however, is easy and police officers are given a significant amount of discretion and deference when it comes to arrests.

On June 18, 2018 in Lozman v. Riviera Beach, the question before the U.S. Supreme Court was whether the existence of probable cause prevented an individual from suing for retaliatory arrest.

Lozman was an outspoken Florida resident who often opposed and criticized his city council’s policies, practices, and laws. The city first encountered Lozman when he criticized the city’s new law affecting his boat home resulting in him filing a lawsuit against the city.

At issue in Lozman’s current case was an incident that occurred in 2006, during his attendance at a public city council meeting, when Lozman criticized the city’s alleged corrupt practices.

A city councilmember frustrated with Lozman’s comment, requested that he step off the podium and stop talking, but Lozman refused. Video taken of the incident shows Lozman standing at the podium for about 15 seconds and talking in a calm voice, when suddenly, a council member ordered a police officer to “carry [Lozman] out.” A police officer complied with the council member’s request, placed Lozman in handcuffs, and escorted him out of the public city council meeting.

Lozman was subsequently charged with disorderly conduct and resisting arrest without violence. The prosecution ultimately dropped the charges against him. Shortly thereafter, Lozman, again, sued the city. In this suit, Lozman conceded that probable cause existed for his arrest, but he argued that it was something else that actually caused his arrest.

Lozman argued that the city was fed up with him due to his prior lawsuit, constant criticism, and his conversations at public city meetings regarding the city’s corrupt practices. Thus, Lozman argued that the council member wrongfully and arbitrarily requested the officer to arrest him just to silence him. Further, Lozman argued that this was often done by the City and was therefore the city’s “official municipal policy” that led to his arrest. Thus, according to Lozman, it was not the police officer that Lozman accused of wrongdoing, but the city council member.

The issue before the Supreme Court was whether Lozman’s arrest violated the First Amendment because the arrest was made in retaliation for his earlier protected speech. Writing for the majority of the Court, Justice Kennedy noted that engaging in political speech is “one of the most precious of the liberties safeguarded by the Bill of Rights.” The Court concluded that whether or not probable cause existed did not matter and Lozman did not have to prove the absence of probable cause. Where, as here, a plaintiff could show sufficient evidence that the arrest was caused by a “substantial or motivating factor” to retaliate, the defendant could win only by showing that the arrest would have still occurred, regardless of whether or not it was motivated by a retaliatory animus.

The Long Island First Amendment lawyers of Famighetti & Weinick PLLC are available to discuss free speech cases including retaliatory arrest lawsuits, free speech retaliation, and other First Amendment violations. Contact a Long Island civil rights lawyer at 631-352-0050 or visit us on the web at http://linycemploymentlaw.com.

Today’s Long Island civil rights blog was written by law clerk and Hofstra law school student Thalia Olaya.

First Amendment retaliatory arrest

According to its website, the League of Women Voters is a “grassroots organization.” Earlier this year, the group contacted the Nassau County Bar Association looking for a volunteer lawyer to speak about civil rights. Civil rights lawyer and bar association member Matthew Weinick responded to the request and the discussion was scheduled.

At the meeting, Weinick discussed First Amendment and Second Amendment rights. Weinick tried to keep these hot button issues away from politics and spoke about these rights from a legal viewpoint, discussing the way courts have interpreted the amendments. Weinick used recent court decisions relating to sexual orientation discrimination and gun regulation to show how courts interpret the Constitution.

For the First Amendment, Weinick concentrated the discussion on free speech rights. Weinick talked about the words of the amendment itself which state only that “Congress shall make no law . . . abridging the freedom of speech.” From that language, there are now volumes of law interpreting those few words. Further, Weinick showed that although the First Amendment uses the words “shall make no law,” there are nonetheless many lawful restrictions on speech. Weinick made the point that the Constitution and its amendments are written broadly and it’s the job of the courts to interpret that broad language.

Turning to the Second Amendment, Weinick discussed the recent Heller decision which looked at a handgun regulation from Washington D.C. Weinick started the conversation by again turning to the language of the amendment and asking attendees what they think those words mean. Weinick then talked about how Heller established Second Amendment rights as individual rights then he shared statements written by Justice Scalia which suggests that the Second Amendment rights are not unlimited and are subject to regulation and limitation like many other Constitutional rights.

On that point, Weinick compared the First Amendment with the Second Amendment and showed that like all restrictions on speech which were discussed for free speech rights, Second Amendment rights were similarly subject to some restrictions. These opening remarks and comparisons led to a lively discussion and question and answer period in which the attendees were actively engaged.

Weinick says he was privileged to have the opportunity to speak before such an important and historic civic group. He was pleased that the group was so engaged and seemed genuinely interested in the discussion. Weinick further thanks the Nassau County Bar Association for arranging the meeting and for providing the opportunity for its members to speak about topics which interest them.

Matthew Weinick is a civil rights on Long Island, New York. He regularly represents individuals in civil rights lawsuits, including First Amendment cases. If you have questions about the First Amendment or Second Amendment, or other civil rights, contact the civil rights lawyers at Famighetti & Weinick PLLC at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.

First Amendment Free Speech

The First Amendment prohibits the government from passing laws which restrict speech based on the content of the speech. For example, a law which generally allows picketing unless the picketing is aimed at a particular type of labor dispute has been declared unconstitutional. In Centro, the Second Circuit found that Oyster Bay’s law unlawfully regulated content based speech because the government would have to assess what the speaker was saying to determine whether the person was violating the law. In other words, as described by the Court, Oyster Bay would have to look at whether the person was stopping vehicles and saying “hire me” verse “tell me the time.” Thus, the Court had no problem finding that Oyster Bay’s law restricted content-based speech.

Commercial Speech is Less Protected Than Other Speech

Constitutional scholars can write lengthy articles about the different kinds of protections the Constitution gives to different types of speech. For purposes of today’s blog, it is sufficient to say that the Constitution gives very high protections to citizens who exercise the Constitution’s most fundamental rights. For example, a citizen who speaks about his or her political beliefs receives the highest level of Constitutional protection, called strict scrutiny.

The speech in Centro, however, concerned employment, which the Court determined constitutes “commercial speech.” The Constitution gives less protections to commercial speech and it is only protected by “intermediate scrutiny.” Under intermediate scrutiny, courts look at whether (1) the law restricts speech that concerns lawful activity; (2) the government has a substantial interest; (3) the law is connected to that interest; and (4) the law is not any more extensive than necessary to meet that government interest.

In Centro, the Court determined that asking for employment is a lawful activity. The Court also had little difficulty in finding that the Town’s interest in protecting the safety and welfare of motorists and pedestrians was substantial and that the law furthered that interest.

The last element of intermediate scrutiny is whether the law was “narrowly drawn to further the interests served.” The Second Circuit agreed with the trial court and found that Oyster Bay failed to establish this element.

First, the Court determined that there are many ways a person could solicit employment which don’t threaten public safety along roadways and so, the law was overbroad. As examples, the Court noted the law made it illegal for children to sell lemonade on a driveway, the law would prohibit a veteran from holding a sign on the sidewalk saying “will work for food,” and it would prevent students from advertising a school car wash on the side of a road.

The Court further noted that there were many other ways to draft the law such that it would not violate the First Amendment, even citing similar laws passed by Oyster Bay which are constitutional.

In sum, the Centro case invalidated the Oyster Bay employment solicitation law because it impermissibly regulated free speech and thus violated the Constitution’s First Amendment.

Long Island First Amendment Lawyers

If you have questions about the Centro case, or about First Amendment free speech or other rights, contact the Long Island First Amendment lawyers of Famighetti & Weinick, PLLC. Our lawyers are available on the web at https://www.linycemploymentlaw.com or at 631-352-0050.