Freedom of speech and religion are two important civil liberties protected under the First Amendment to the United States Constitution. Freedom of speech extends to both traditional verbal speech, and expressive conduct also known as symbolic speech. Burning a flag and wearing a t-shirt opposing a political leader are two examples of symbolic speech.

Conduct remains at the heart of symbolic speech claims. Thoughts, ideas, and opinions are powerful and courts have decided to protect them in certain scenarios. However, the conduct’s offensiveness or irrationality can never be taken into consideration when deciding whether or not the conduct deserves First Amendment protection.

In Cakeshop, David Mullins and Charlie Craig, a gay couple, were searching for a cake for their upcoming wedding ceremony and ended up in a Colorado bakery, Masterpiece Cakeshop. Much to their dismay, the baker, Jack Phillips, turned down the couple’s request to design their cake.

The baker told the couple he could not design their wedding cake because he was a devout Christian and his religion opposed gay-marriage. He did, however, tell the couple that they could purchase any other wedding cake as long as it did not include his own designs.

Baffled and humiliated, the couple filed a discrimination charge, also known as a complaint, with the Colorado Civil Rights Commission. The couple alleged that the Baker’s actions violated Colorado’s Anti-Discrimination Act (CADA), which prohibits “discrimination based on sexual orientation in a ‘place of business engaged in any sales to the public and any place offering services to the public.’”

Phillip’s argued that forcing him to design a cake for a ceremony he opposes on religious grounds, would force him to engage in religious activity that went entirely against his religious beliefs and would therefore, violate his First Amendment right to freedom of religion. The Colorado Civil Rights Commission, Colorado State courts, and the Colorado Court of Appeals were not convinced.

On Appeal to the United States Supreme Court, the baker raised two arguments. The first was based on his freedom of speech and the other was based on freedom of religion. But ultimately, the Court decision was based on his freedom of religion argument.

The legal battle resulted in the U.S. Supreme Court reversing the lower courts’ opinion and, in a 7-2 decision led by Justice Kennedy, ruled in favor of the baker.

The Court focused on the way the Colorado Civil Rights Commission had unfairly handled the case. Specifically, the Court was concerned that the Commission’s decision was tainted based on its distastefulness of religion.

Justice Kennedy elaborated that on multiple occasions, inappropriate religious comments were made by at least one of the commissioners. For example at one point a commissioner stated, “Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’” During a second meeting, one of the commissioners described an individual’s religion as “one of the most despicable pieces of rhetoric that people can use.” In fact, Justice Kennedy’s majority opinion also noted that the commissioner “even went so far as to compare Phillips’ invocation of his [religion] to defenses of slavery and the Holocaust.”

While the Cakeshop decision is not quite a victory for gay-rights, Justice Kennedy did raise several points that cannot be overlooked. First, he wrote, “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. . . . The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”

He later stated that Colorado’s anti-discrimination law was, “a law that protects discrimination on the basis of religion as well as sexual orientation.” At the end, and while admitting that the public had to unfortunately sit back and wait for further clarification, the Court made an important statement that could influence future court decisions. Justice Kennedy wrote that in the future, “[t]hese disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

In sum, the U.S Supreme Court may have answered the underlying question, but it left us with an even bigger question: how does this case affect gay rights? No matter the interpretation, the fact remains that speculating the outcomes of future decisions is all we can do for now – or at least until the U.S. Supreme Court clarifies.

Although one legal right should not trump another equally important right, one argument is nevertheless going to persevere in a court of law. Choosing the right attorney could be the beginning to a different ending.

The lawyers at Famighetti and Weinick, PLLC, understand civil rights but most importantly, we understand you. If you have questions about the First Amendment or anti-discrimination laws in New York, contact a Long Island civil rights lawyer at Famighetti & Weinick, PLLC. Our website is https://www.linycemploymentlaw.com/ and our phone number is 631-352-0050.

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

Today’s Long Island civil rights blog discusses whether President Trump’s twitter feed is a public forum subject to protections of the First Amendment.

The First Amendment provides different protections, or even not at all, depending on the type of forum involved. In public spaces, three different types of forums have been recognized: (1) the traditional public forum; (2) a designated public forum; and (3) a non-public forum.

The two forums where citizens enjoy the most First Amendment protection are in traditional public forums and designated public forums. Traditional public forums are areas where people have a long history of enjoying First Amendment protection such as streets and parks. However, convincing a court that a certain space is a traditional public forum is not easy because the law imposes a strict legal test to determine whether a public forum exists.

On the other hand, designated public forums are spaces the government has opened for expression such as theaters owned by a local government or a meeting room at a state university. Nonetheless, in both of these forums, the government is allowed to intervene to impose some restrictions but not restrictions based on an individual’s own personal views. Otherwise, the government would be engaging in what is called viewpoint discrimination.

With technology becoming increasingly popular and social media becoming a space that is wide open for public discussion and debate, the forum classification process has become more difficult.

On May 23, 2018, a New York federal district court had to grapple with this exact issue. The peculiar addition in the case was that it also involved the President of the United States, Donald Trump.

In Knight Institute v. Trump, a group of seven individuals sued President Trump and his communication team after they criticized the President and his policies on Twitter and were shortly thereafter blocked from the president’s own personal Twitter account, @realDonaldTrump.

The main issue in the Knight Institute case, was whether President Trump’s Twitter account was a public forum. If so, under the First Amendment, President Trump would be prohibited from blocking Twitter users because of their personal views about him or his policies.

Most Twitter users are free to block any other user from their account without consequence. The president, however, is a public official so his actions in blocking users from his Twitter account implicate First Amendment concerns.

In the Knight Institute decision, Judge Naomi Reice Buschwald first went into a detailed overview of Twitter and described its functions and technicalities, including the process of blocking and muting other Twitter users. Judge Buschwald then discussed how the president uses his @realDonaldTrump Twitter account to post matters related to “official government business” such as his Administration’s upcoming legislative agenda and his visits and engagements with foreign leaders – just to name a few.

Although not mentioned in Judge Buschwald’s decision, President Trump does indeed have an official @POTUS Twitter account and an official @whitehouse account, however, the suit at issue involved the President’s actions on his own personal @realDonaldTrump account, which he nevertheless uses to post about government business.

As a result of the President blocking several Twitter users, they were unable to view what the President posted (also known as his tweets), and they were unable to reply to his tweets or view any of the comment threads associated with the @RealDonaldTrump page.

While the blocked users could technically get around the block by using alternative methods to view the President’s tweets, it involved additional steps that other non-blocked Twitter users did not have to use.

The New York federal district court ruled that President Trump is not allowed to block users from Twitter merely because an individual’s views are contrary to his own. As Judge Buchwald wrote in her 75-page decision: “no government official – including the president – is above the law. . . .”

In ruling against the President, the Southern District of New York decided that parts of the @realDonaldTrump account were indeed a designated public forum. The court, however, was careful to narrow the scope of the area considered to be a public forum to only the “interactive space” of the @realDonaldTrump account.

This encompassed the space where Twitter users could “engage with the content of the President’s tweets.” In other words, only the space where Twitter users could reply and retweet to the @realDonaldTrump account was deemed to be the interactive space in which the government may not intervene and silence users.

In sum, the Southern District’s decision is an important reminder that as new forms of communication and technology continue to grow, the legal framework used to determine the Constitutionality of government officials is also likely to expand. After all, social media pages including Twitter, Facebook, and Instagram are the new communication platforms of today and love it or hate it, they are not going anywhere anytime soon.

If you have questions about the First Amendment or social media and the law, contact a Long Island civil rights lawyer at Famighetti & Weinick, PLLC. Our website is https://www.linycemploymentlaw.com and our phone number is 631-352-0050.

Today’s Long Island civil rights law blog was written by Law Clerk Thalia Olaya.

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.

Public forums are spaces which have traditionally been used by the people to exercise First Amendment rights. Parks are a leading example of a public forum.

Designated forums are spaces which have not traditionally been used for First Amendment purposes. An example of a designated forum might be an auditorium owned by a local government.

For both public forums and designated forums, free speech has the greatest protections. The government may impose some restrictions to address compelling state interests, but it cannot restrict speech based on content. In other words, the government may close a park at night for security concerns, but it could not close the park to prevent a particular community activist from speaking about a particular topic.

Non-public forums are spaces which are not traditionally used for public speech. A government office building is an example of a public space which is not used for speech. In non-public forums, the government can take broad measures to regulate speech and to maintain the space to be used for its intended purpose. Could you imagine if the government could not regulate free speech at the DMV? Anyone could walk in with their soap box, stand up, and deliver a speech while you’re waiting to renew your license. Even in non-public forums, however, the government cannot regulate speech based solely on the content of speech. For instance, the DMV could not allow someone to make a speech about how terrible the train system is, but kick out someone else for making a speech about how terrible the DMV is.

These concepts of public forums have posed trouble for Courts in traditional arenas. With the expansion of the internet and social media, and governments’ use of social media to share information, Courts will continue to struggle determining the appropriate level of Constitutional protection to apply to users of social media.

Social Media and the First Amendment

Recently, a group of twitter users sued, among others, President Trump. It is no secret that the President relies heavily on twitter and sends many tweets per day about a variety of matters. Twitter allows a person’s followers to respond to tweets, even to the President’s tweets. According to their lawsuit, by using a twitter feature, President Trump has blocked some twitter users from responding to his tweets. They allege this is a violation of their First Amendment rights.

This lawsuit raises many questions about the First Amendment, but it also raises another important point – do Courts understand the nature of twitter sufficient enough to be able to rule on the legal issues concerning First Amendment rights. Last year, in NLRB v. Pier Sixty, New York’s federal appellate court issued a decision involving Facebook which suggested the judges understood the importance of Facebook as medium for sharing ideas. But, the decision left open the question of whether the Court understood the inner workings of Facebook. According to media reports, the Court in the Trump twitter case spent a while asking the lawyers in the case about how twitter works. Ultimately, the judge in the Trump twitter case will have to decide, among other things, whether President Trump’s twitter feed is a public forum or something else`. That determination will drive the inquiry into whether the President violated the First Amendment by blocking followers.

Long Island First Amendment Lawyers

Though just a few words long, the First Amendment’s free speech clause can cause complicated legal issues. Famighetti & Weinick, PLLC are Long Island First Amendment lawyers. We are experienced in handling First Amendment issues for employees and citizens. Indeed, both partners Peter Famighetti and Matthew Weinick have won jury trials for cases arising from First Amendment violations. If you have a question about free speech or other First Amendment rights, contact a Long Island First Amendment lawyer at Famighetti & Weinick, PLLC. We are available at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.

Some of the facts and information for today’s civil rights blog was gathered from court documents filed in the case Knight First Amendment Institute at Columbia University v. Donald J. Trump, No. 17-5205, S.D.N.Y. and from the New York Times.

Section 75 Protections

Section 75 sets forth protections for certain public employees. Section 75 prohibits the discipline or termination of a public employee except for incompetence or misconduct. Thus, the law alters the traditional at-will employment rule by which employees can usually be terminated for any reason, as long as the reason is not illegal, such as discrimination.

Not all public employees are protected by Section 75. For example, probationary employees are not covered. Generally, employees must serve a period of probation during which their performance can be evaluated. The length of time an employee must serve probation can vary based on the position or prior service, such as serving probation in a position to which the employee was promoted.

Other job categories are also exempt from Section 75. For example, elected officials and heads of departments are “unclassified” civil service positions are not covered by Section 75. Further, tenured teachers are protected under the Education law, not Section 75.

Section 75 Charges and Hearing

Before termination, employees protected by Section 75 must have charges issued against them. The employee has the right to have representation, either through a union, or with a private lawyer. The employee has a right to respond or “answer” the charges.

Employees also have the right to a hearing. A hearing is basically like a trial. A hearing officer takes evidence, which like a trial, can include documents and testimony. The rules of evidence, however, are more relaxed than in Court which means that some evidence which may not be admitted in Court, may be admissible in a Section 75 hearing.

The employee’s lawyer or representative can challenge the employer’s evidence, cross-examine witnesses, and introduce other evidence to refute the employer’s evidence of misconduct or incompetence.

After all the evidence is heard, the hearing officer will make a determination as to whether the employee is “guilty” of the charges and if so, will propose a penalty.

Article 78: Appealing Section 75 Decision

Decisions issued after a Section 75 hearing can be appealed by filing an Article 78 proceeding. An Article 78 proceeding is a special proceeding instituted in New York State Supreme Court by filing a petition and notice of petition. Article 78s have strict time limits and must be started within 4 months of the final decision from the Section 75. Therefore, if you have received an unfavorable decision from a Section 75 hearing, you should contact an Article 78 lawyer immediately. In an Article 78, the employee must show that the decision was arbitrary and capricious or that the penalty imposed shocks the conscience. Some ways to show the decision was arbitrary and capricious include showing that the employer deviated from procedures or that the decision was not based on substantial facts.

Violations of Section 75

Employers who did not follow the procedures of Section 75 may be subject to lawsuits and to having the Section 75 charges dismissed. Employees who are terminated without a hearing, but who were subject to Section 75 protections may have a due process claim against the employer.

Further, oftentimes an employer’s attempts to terminate an employer can signal other unlawful motivations. Public employees have rights under the First Amendment and Fourteenth Amendment.

Long Island Section 75 Lawyers

The lawyers at Famighetti & Weinick PLLC are experienced in handling Section 75 matters and other public employee issues such as First Amendment violations. For questions about Section 75, Article 78, or other public employment issues, call us at 631-352-0050. We also have resources on our website at https://www.linycemploymentlaw.com.