Some good, bad, ugly and strange in news of legal rights and the Constitution. Company Accused of Firing Over Facebook Post
In what labor officials and lawyers view as a ground-breaking case involving workers and social media, the National Labor Relations Board has accused a company of illegally firing an employee after she criticized her supervisor on her Facebook page.
This is the first case in which the labor board has stepped in to argue that workers’ criticisms of their bosses or companies on a social networking site are generally a protected activity and that employers would be violating the law by punishing workers for such statements.
The labor relations board announced last week that it had filed a complaint against an ambulance service, American Medical Response of Connecticut, that fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company “in any way” on Facebook or other social media sites in which they post pictures of themselves.
It has been a well recognized legal right for employees to discuss their employer and working conditions and to do so without punitive repercussions from their employers. This decision extends that right to social media. There was a response from the employer that is important,
American Medical Response of Connecticut denied the labor board’s allegations, saying they were without merit. “The employee in question was discharged based on multiple, serious complaints about her behavior,” the company said in a statement. “The employee was also held accountable for negative personal attacks against a co-worker posted publicly on Facebook. The company believes that the offensive statements made against the co-workers were not concerted activity protected under federal law.”
Usually what happens in cases where employers have gotten wind of criticism from an employee – especially larger corporations – is to find another reason to fire the employee. Those of you who work for large companies were probably given an employee handbook. It might be fifty to a hundred pages or more. It is pretty much common practice for employees to barely read the manual much less commit it to memory. You employer can always wait to find and document some incident which violates a provision of the handbook and fire you. Look around. Fellow employees violate parts of the corporate rule book every day. Enforcement of the rules is generally only done by the letter of the handbook when you have been singled out as a trouble maker. It is almost humanly impossible that no one in the management of that ambulance company has never made a disparaging remark about the company or an employee. Maybe the employee is awful. If that is the case they knew long before the Facebook incident and should have fired her previously. American Medical Response and like minded companies could save themselves some aggravation by embracing social media and criticism. Hurt feelings aside a critic can be your best friend, alerting you to changes that should be made.
This decision is hardly the first time the right-wing Fifth Circuit has come under scrutiny for its harsh judgments. As the Wonk Room noted earlier this year, the overwhelming majority of Fifth Circuit judges are invested in the oil industry, and both of the judges who voted against reinstating a drilling moratorium during the Gulf oil disaster attended oil industry-funded junkets. In one case brought by Katrina victims against the energy industry, so many judges were required to recuse themselves that there weren’t enough judges left to hear an appeal.
Yet, even in a circuit known for its knee-jerk ideology, the cheerleader rape case was heard by an unusually radical panel of three judges. Judges Emilio Garza and Edith Clement were both on President George W. Bush’s “short list” for potential Supreme Court nominees, and Clement serves on the board of the leading organization providing industry-funded junkets for judges. The third judge, Priscilla Owen, took thousands of dollars worth of campaign contributions from Enron and then wrote a key opinion reducing Enron’s taxes by $15 million when she sat on the Texas Supreme Court.
Note the alleged in the title. The proceedings of the criminal aspect of the sexual assault charges are on going. In the interim the accused was allowed to return to school and participation in team sports. Apparently the circumstances are such the Republican packed court feels the victim is not entitled to free speech or freedom of expression. Thus making law out of thin air. The victim and her family are appealing. I hope their lawyer moves to have any further hearings in another less predisposed district.
Another verdict and its consequences via the mind of the Conservative jurist – Guilt by Association Squared: Extending the Bounds of the ‘Material Support’ Statute
Last summer, the Supreme Court ruled that the First Amendment did not protect speech advocating peace and human rights if expressed to, or in conjunction with, a foreign group that the United States has designated “terrorist.” The Court’s decision in Holder v. Humanitarian Law Project employed reasoning that could have broad implications for First Amendment freedoms generally, as it held that the government’s interest in denying “legitimacy” to a proscribed organization was a “compelling interest” that justified a content-based law criminalizing speech urging only lawful, nonviolent conduct.
But two cases now pending in federal courts of appeals threaten to expand still further the reach of laws banning “material support’ — to prohibit aid even to organizations that have never been “designated” as terrorist or otherwise proscribed by the government. Their resolution will be the next front in the struggle to protect civil liberties from the mandate to suppress support for terrorism. They threaten to expand the law far beyond the already broad reach the Supreme Court endorsed in Humanitarian Law Project, and to chill the legitimate humanitarian aid activities of countless charities and foundations across the United States.
In the first case, United States v. El Mezain, pending in the U.S. Court of Appeals for the Fifth Circuit, a federal judge ruled that individuals can be held criminally liable under the “material support” statute not only for supporting groups the government has formally designated and placed on an official list, but also for supporting non-designated groups, not on any government lists, if the government later proves that the non-designated group was linked to a designated group. The court required no showing that the donor knew or even should have known that the non-designated group was in any way connected to a proscribed organization.
If this decision is upheld, any charity that provides aid or does work in conflict-ridden regions around the world will be vulnerable to prosecution. Even if the charity engages in due diligence, carefully checks the government’s lists of proscribed groups and individuals, and scrupulously avoids funding anyone on the list, it could still be prosecuted. Under this view of the law, there is literally nothing a charity can do to ensure that it will not be prosecuted – short of exiting the field altogether. The decision has such sweeping ramifications that the defendants’ appeal has been supported by an amicus brief from a wide variety of charities, foundations, and non-governmental organizations….
It is not unusual to hear a right-wing conservative refer to Human Rights Watch as a terrorist sympathizer or simply a terrorist organization because they report on human rights abuses regardless of who perpetrates them. The opening paragraphs for Human Rights Watch on the right-wing site Conservapedia read,
Human Rights Watch (HRW) is a large, well-funded  liberal advocacy group presenting itself as a human rights watchdog. One of its four co-founders also founded SDS, a radical pro-communist group masquerading as a supporter of democracy. This parentage exposes the extremist origins of the group.
HRW mainly criticizes the United States and Israel. Yet it studiously avoids any criticism of Arab groups who launch rocket attacks against Israeli civilians. As conservative author and human rights activist David Horowitz stated, Human Rights Watch is a “reflexive Israel-basher … who, in his zest to pillory Israel at every turn, is little more than an ally of the barbarians”.
So lets say you have a universal concern for human rights and donate to HRW. Under a future conservative administration – maybe even the current one – you could be prosecuted because it is the belief – based on myths and distortions – that HRW has a anti-American agenda. There are few countries that have not suffered some harsh criticism from HRW including the U.S., China, Israel and Saudi Arabia. They’re not perfect but they are pretty consistent about violations of international criteria for violating human rights. They generally go by standards defined by the Geneva Conventions.
Thomas Sowell is a resident idiot at the proto-fascist think tank the Hoover Institute. You can almost measure how right you are by how much you disagree with Sowell. His train of logic is to intellectual discourse what a sledge-hammer is to heart surgery. In his smug insular celebration of the ouster of some Iowa judges who decided that the ban on same-sex marriage was unconstitutional he writes, Stopping Judicial Imperialism
These judges had taken it upon themselves to rule that the voters of Iowa did not have the right to block attempts to change the definition of marriage to include homosexual couples. Here again, the particular issue — so-called gay marriage — was not as fundamental as the question of depriving the voting public of their right to decide what kinds of laws they want to live under.
That is ultimately a question of deciding what kind of country this is to be — one ruled by “we the people,” or one where the notions of an arrogant elite are to be imposed, whether the people agree or not.
Those who believe in gay marriage are free to vote for it. But, when they lose that vote, it is not the role of judges to nullify the vote and legislate from the bench. Judges who become politicians in robes often lie like politicians as well, claiming that they are just applying the Constitution, when they are in fact exercising powers that the Constitution never gave them.
State and federal Supreme Court judges do in fact have the right to over rule the ever shifting emotional whims of the electorate. Sowell – being African-American – got an elite education and the opportunity to play pretend intellectual at Hoover because the equal protection clause of the U.S. Constitution was finally interpreted correctly thus doing away with the defacto servitude of African-Americans that went on for a hundred years after the Emancipation Proclamation. Just because large numbers of Americans desire an unconstitutional law does not mean they have the right to have it. We are not a nation of and for the mob, we’re a nation of laws. One would think an intellectual who is paid to do nothing but research and to think would have taken fifteen minutes to look up the basic legal principles that supported the decision of the Iowa court. Iowa’s Same Sex Marriage Decision: What it Says and What it Means
Certain fundamental rights, including the right to the equal protection of the law, are beyond “the vicissitudes of political controversy” and “beyond the reach of majorities and officials” to limit or deny. Accordingly, the Court has the responsibility “to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.”
[ ]…Strikingly, and courageously, the Court then addressed the real basis for the same sex marriage ban – religious opposition to homosexuality: “While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling… Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained — even fundamental — religious belief. Yet, such views are not the only religious views of marriage… other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion… Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them… civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more.”
Sowell’s intellectual veracity itself is questionable. His basic tenant being any right guaranteed in law is “Imperialism” if it does not poll well on any given day. Some polls have reported people saying the press has too much freedom, the public too much freedom of speech and due process gives too many rights to the accused. For Sowell to be consistent he would have to say he is against unpopular free speech, unpopular freedom of the press and against fair trials; and any judge who does not support the popularity approach to the Constitution should be removed from office. He would probably find Iran or China a wonderful place to live.