Articles Posted in Civil Rights

Courts have long recognized a constitutional right to intimate association. Intimate association protects close family relationships from undue interference from the government.  Today’s Long Island civil rights blog discusses some of the contours of these claims and a recent appellate court decision concerning intimate association under the Fourteenth 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.

The First Amendment’s freedom of speech guarantee remains a hot topic in the courts. The First Amendment lawyers at Famighetti & Weinick PLLC handle First Amendment cases ranging from employment retaliation to retaliation against private citizens. Today’s Long Island civil rights blog discusses retaliatory arrests and the effects of government officials censoring speech.

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.

The First Amendment of the United States Constitution protects, among other rights, the freedom of speech.  An unsettled area of employment law in New York has been the question of how much protection does the First Amendment provide to public sector employees like police officers.  Today’s Long Island employment law blog discusses a recent case involving a police officer’s union activity and First Amendment retaliation.  Continue reading

On April 25, 2018, Long Island civil rights lawyer Matthew Weinick led a discussion about First and Second Amendment rights at a meeting of the League of Women Voters.  The meeting, held at the Levittown Library, was well attended by both organization members and the general public.

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.

The First Amendment to the United States Constitution protects several rights, including the freedom of speech.  Indeed, the text of the Amendment reads “Congress shall make no law . . . abridging the freedom of speech.”  Like most Constitutional rights, the freedom of speech is not limitless and the level of Constitutional protection speech may be afforded depends, sometimes, on where the speech is made. Courts have interpreted the freedom of speech to apply to a variety of forums, including books, public streets, and, in some cases, public buildings.  Today’s civil rights blog discusses the collision between a centuries old document and 21st century technology – twitter.

Public Forums vs. Non-Public Forums

Throughout the course of U.S. history, the country’s courts have been called upon to interpret the meaning of the Constitution and its Amendments.  As First Amendment law has developed, it’s become understood that public spaces can fall into one of three types of forums — a public forum, a public forum by designation, and a non-public forum.  The level of First Amendment rights a person has in a public space is dependent on which of these types of forum the public space is classified as.

In 2009, the Town of Oyster Bay in New York passed a law prohibiting people from soliciting employment along roadways within the Town.  Two public interest groups sued the Town alleging that the law violated the First Amendment’s protection of free speech.  On August 22, 2017, the Second Circuit Court of Appeals upheld the trial court’s determination that the law violates the First Amendment.  Today’s New York civil rights blog discusses the case Centro de la Comunidad Hispana de Locust Valley v. Oyster Bay.

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.

The First Amendment protects many important rights, including the right of assembly. Like other First Amendment rights, however, this right is not absolute. On June 8, 2017, the Second Circuit Court of Appeals decided a case about how far a public school can go in limiting one’s right of assembly.

JD WAS BULLIED IN SCHOOL

In Johnson v. Perry, decided by the Second Circuit Court of Appeals on June 8, 0217, the plaintiff Johnson’s daughter, “ JD,” wanted to play basketball for the school’s junior varsity team instead of the varsity team because she felt she was being treated unfairly and wanted more playing time. After the change, Perry, the school principal, repeatedly took JD out of her classes and tried to bully JD into staying on the varsity team. When JD’s parents found out Perry was bullying JD, they requested a meeting. The meeting turned out to be a screaming match between Johnson and Perry. A few days later, Johnson received an email from the school informing him that he was banned from the school premises, including sporting events both on and off campus, because he was considered a threat to the staff and students. Johnson brought a section 1983 action which allows lawsuits for violations of constitutional rights. The main issue in the case was whether Perry had violated Johnson’s First Amendment right of assembly.

In a display of the firm’s prowess in a courtroom setting, F&W partner, Matt Weinick, obtained a decision after a hearing, dismissing all disciplinary charges issued against a New York City public school student.  The remarkably favorable decision dismissed the charges, returned the student to his original school from suspension, and “immediately” expunged all records of the suspension from the school’s records.

F&W’s client was charged with inappropriate conduct in school, allegations severe enough that police were involved.  The school obtained a written statement from the student-accuser and also elicited a written statement from the client, which the school argued constituted an admission of the allegations.  The student was suspended pending a hearing on the charges.

On November 22, 2016, Weinick appeared at the Department of Education hearing on behalf of the accused student.  The school presented its evidence, including three written statements, and the live testimony of the school’s dean, the student-accuser and her mother. Weinick objected to the introduction of the client’s statement, arguing it was not obtained voluntarily.  He also cross-examined the witnesses, calling into question their credibility, and objected to the introduction of exhibits.

On August 16, 2016, U.S. District Judge Joseph Bianco decided a case involving school bullying.  Judge Bianco was called upon to decide whether a student was suspended from school because his parents complained about, among other things, the school’s failure to prevent bullying.  The student and parents brought claims against the school including First Amendment retaliation, due process violations, and tort claims including negligent supervision.

In sum, a school student “J.T.”, alleged that he was subjected to an ongoing pattern of bullying for three academic years.  J.T.’s parents complained on several occasions to school officials about the bullying.  According to the plaintiffs, each time they complained, the school offered a different excuse such as that they were unaware of the bullying or that incidents occurred outside of school so it could not do anything about it.  Shortly after each complaint, however, the school suspended J.T.  After attempts by the plaintiffs and their lawyer to have the school stop the bullying failed, they filed suit.

Turning to the First Amendment issue, Judge Bianco addressed defendants’ argument that for the plaintiffs to be able to sue under the First Amendment, they had to show that their speech, i.e. their complaints about the bullying, related to a matter of public concern,  and were not solely personal in nature.  Judge Bianco rejected the argument noting that “matter of public concern” is a question applicable in employment cases, but that the balancing test imposed by the public concern question is not relevant in circumstances unrelated to employment.  Finding that the “temporal proximity” (the timing) between the complaints and suspensions was sufficient to infer a retaliatory intent, Judge Bianco refused to dismiss the First Amendment claim.

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