Tuesday, April 12, 2011

Them's fightin' words?

Rest assured, ladies and gentlemen, your right to call a policeman a “fat slob” is still most likely constitutionally protected.

In Louisville, Ky., last month, an appeals court ruled in favor of one man's right to call a police officer just that, reaffirming a free speech provision that has been challenged quite a hefty number of times in court.

As clear-cut as one would expect this area of law to be, however, free speech protection in relation to police can still be confusing. But the Kentucky case provides a good cross-section of just what the situation and criteria could be for an individual to prove his speech is protected when he is challenging a police officer.

Kennedy v. City of Villa Hills, Kentucky et al, begins with a simple argument. A Kentucky man, Kevin Kennedy, got into an altercation with police officer and building inspector Joseph Schutzman after Schutzman approved a permit to expand a strip mall near Kennedy's home. When a construction crew took up near the Kennedy residence to begin work, Kennedy confronted Schutzman over the matter. When Kennedy failed to steer the situation in his favor, he reportedly had this to say about the officer to other workers: “That son of a bitch broke all of the zoning laws.” Schutzman overheard the comment, asking Kennedy to repeat himself. At that point, Kennedy said: “You're a fat slob.” He was arrested for disorderly conduct. The citation description read: “verbal abuse in front of public works employees.”

The ensuring court case paints a typical scenario for those who encounter this type of situation. The disorderly conduct charge against Kennedy was dropped, but Kennedy filed suit, saying the arrest was a violation of his right to free speech. Schutzman, however, claimed qualified immunity. His defense? A reasonable officer in his situation would have also believed that he had probable cause to arrest Kennedy if he thought Kennedy's speech was unprotected or had invoked “fighting words.”

The court denied Schutzman's claims on both Fourth Amendment and First Amendment grounds, but today let's focus specifically on why Kennedy was justified in saying what he did under the First Amendment provision.

For the court, this case is open-and-shut. It takes a very clinical approach to this situation, using precedent that has been clearly established by several other cases.

A pretty clear process is also set into motion early on in the analysis:
1. Did the citizen “allege or show make” out of a violation of constitutional right?
2. Was the right at issue “clearly established” at the time of the officer's “misconduct”? 
So first off, did the individual use “fighting words” or was his speech otherwise unprotected? Hardly. According to the opinion:
“Even crass language used to insult police officers does not fall within the 'very limited' unprotected category of 'fighting words.'” 
To back their claim, they cite Greene v. Barber, a 2002 case out of Grand Rapids, Mich., which held that “a plaintiff did not use fighting words when he told a police officer 'you're really being [an] asshole' and 'if that's how you feel you're really stupid' (alteration in original)).”

It's interesting to note how much the category of “fighting words” has morphed overtime. Way back in 1942 in the case of Chaplinski v. New Hampshire, one man was not allowed to address a public official as such: “You are a God dammed racketeer” and “a dammed Fascist and the whole government of Rochester are Fascists or agents of Fascists.”

At the time, the Supreme Court ruled that these could be construed as “fighting words” — “... those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

But case after case after case, courts have tailored this provision, granting more and more freedom for private individuals to say what they want. One landmark claim, in 1989's Texas v. Johnson, held that “the government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.” Another, Sandul v. Larion, claimed that certain circumstances could swing the argument in favor of the private individual. That case was even based off of Cohen v. California, which very explicitly prohibits states from stopping an individual from displaying words like “f**k.”

The point here is that beneath the surface there is actually a wide array of precedent establishing a person's right to “lash out,” in some sense, while still being under the umbrella of protected speech.

In a broader sense, the police officer's status further damns the case: “... the First Amendment requires that police officers tolerate coarse criticism, (therefore) the Constitution prohibits states from criminalizing conduct that disturbs solely police officers,” according to one of the case's judges Karen Nelson Moore.

Now that we've established that Kennedy did use protected speech, the pieces fall into place as to whether his retaliation claim is valid and whether Schutzman deserves qualified immunity. The short answer? He doesn't. Let's use the court's three elements for a retaliation claim to break this one down:

1. The plaintiff engaged in protected conduct (established ad nauseum above).
2. An adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct (true, he was detained for disorderly conduct).
3. There is a casual connection between elements one and two — that is, the adverse action was motivated at least in part by the plaintiff's protected conduct. (explained below)

As the court establishes in this last instance, they could determine that the use of “fat slob” was the key motivating factor in Schutzman's decision to arrest Kennedy. In the context of this case, the court affirms that given the situation, Kennedy's use of protected speech just wasn't enough for a reasonable officer to arrest him in a retaliatory context, in which motive really does play an important role.

Although the court acknowledges that motive is hard to prove, Kennedy's “ordinary retaliation claim” plays out in his favor. He was arrested before any involvement in the case from any other lawful body — in other words, a straightfoward arrest that immediately followed Kennedy's use of the words. This, the court says, suggests that Kennedy succeeds in his claim for retaliatory arrest even without demonstrating a lack of probable cause simply because he satisfied the court's criteria above. More damningly for Schutzman, the events of the case as described don't do much to help him; according to the description in the report, Schutzman ran into the building after overhearing Kennedy's first comment and “got in his face” before arresting Kennedy following the “fat slob” comment.

The circumstances in the case and the enormous amount of precedent that had been set out before it certainly affirm the court's decision, in my opinion. It will be interesting to see how narrowly tailored this area of free speech law becomes over the next few decades. In my analysis just of this case and the various cases over the years that it led me to, it's clear that the idea specifically of “fighting words” and the circumstances in which qualified immunity are decided have been curried in the private individual's favor. At least, we've certainly come a long way from Chaplinski v. New Hampshire.

Chaplinski v. New Hampshire: http://openjurist.org/315/us/568
6th Circuit: Man who called cop a 'fat slob' can sue over arrest: http://www.firstamendmentcenter.org/news.aspx?id=24025

Man Arrested for Calling a Cop 'Fat Slob' Can Sue: http://www.courthousenews.com/2011/03/25/35260.htm
Sandul v. Larion: http://openjurist.org/119/f3d/1250
Greene v. Barber: http://openjurist.org/310/f3d/889/greene-v-barber   

Kennedy v. City of Villa Hills, Kentucky et al: http://www.ca6.uscourts.gov/opinions.pdf/11a0073p-06.pdf

Texas v. Johnson: http://openjurist.org/491/us/397

Tuesday, March 15, 2011

New FERPA ruling only the first step toward releasing students' "private" information

Hey, applicants to public universities: wondering if your private academic records are actually private?

A ruling from a federal judge has put restrictions on the Family Educational Rights and Privacy Act (FERPA) in the case of the U of I vs. the Chicago Tribune. They say the act, which has been used to limit the kinds of records released under the Freedom of Information Act, does not prevent the school from handing over names and educational records (including ACT scores and GPAs) of its applicants. 

Here's the context: the Tribune FOIAed a list of politically connected students in 2009 as part of its "Clout Goes to College" series. They were searching for the applicants on a "Category I" list, but the University was only willing to supply some basic information about the applicants, including what schools they attended, the actual number of applicants, etc. To avoid releasing the rest of the information, the University relied on stipulations found in FERPA saying that if you're an institution receiving federal aid, there are certain kinds of educational records (such as these) that you just can't release. 

"no funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents to any individual, agency, or organization ..." 
This was meant to directly support a stipulation found in Illinois FOIA law that says you can withhold certain information based on the following:
"information specifically prohibited from disclosure by federal or state law or rules and regulations implementing federal or state law."
(Just as an FYI, that's the very first exemption listed in the FOIA act.)

Seems pretty simple at first, right? This federal law says the U of I doesn't have to release the information if they want to keep their funding. The FOIA law in Illinois seemingly permits such an exception. But not so fast. 

The U.S. District Court judge responsible for the ruling, Joan Gottschall, said the U of I has the option of rejecting federal education money and the FERPA conditions, so in fact, the law doesn't prevent the U of I from doing anything, meaning that the U of I isn't barred from handing it over ... it just could give up federal funding by doing so.

How interesting a way to look at the issue. With this ruling, Gottschall admits that it was a narrow one — the court looked only at whether the U of I would be prohibited from releasing the information due to FERPA. My immediate concerns though stem from the fact that the court said they aren't prohibited because they can just give up their federal funding ... but for what public institution is it practical to give up federal funding to comply with FOIA laws? That would comprise a hefty chunk of financial aid for incoming students.

But it's still such a weird case because there are still a myriad of other issues at hand that need to be answered. Is this information really public? Is it in the public interest? Are there any other exceptions in Illinois FOIA law that would prevent this information from becoming public?

From what I've read, the University has tried to fall back on other exemptions in Illinois' FOIA law to prevent this information from getting out there, including filing it under "files and personal information."

As of right now, I think this is definitely just the tip of the iceberg and there is a lot more to be explored here. Whether the University will try to bring up other legislation and continue to try to combat releasing this information with that single exemption rule in the FOIA law, or if they'll branch out and look at other exemption possibilites,  I'm not sure. 

There are still a lot of avenues this case could take. The Tribune argued in state and federal court on a number of counts. They said these files aren't education records — they are "evidence" related to "possible misconduct." They also said that these aren't student records but potential student records. Both of those have yet to be ruled on in a court of law.

But let's pretend for a moment that the University does look to other exemptions to protect these names/GPAs/ACTs. I took a look at our notes on the Illinois FOIA law to see if there would be any answers there. What are the major exceptions?

1. Classified information - doesn't seem to apply here.
2. Trade secrets - We're not looking at trade secrets for a corporation here.
3. Clearly unwarranted invasion of privacy, such as medical/tax records - This seems to be an issue we could look at further. Are names, GPAs and ACT scores really public information? Those were what were redacted. But as we said, just including a name doesn't mean it's private.

My other immediate reaction though, and what I think would really count in favor of protecting these records, is just the fact that what do specific ACT/GPA scores linked with names have to do with public interest? Public tax dollars don't go toward a measure of a person's intelligence. It's not like I'm publicly releasing the salaries of individuals who work at a public corporation. Does just applying to a public institution make my ACT and GPA a matter of public interest? I don't see the intrinsic logic here.

I'm very torn on this issue. On the one hand, I'm all for transparency in higher education. I don't believe the Tribune would use this information to merely print a list of names, but instead to do research and perhaps compile trends (all speculation, and obvious it's a point that if the Trib can have access to this information, than anyone can). But at the same time, I'm having trouble finding a public interest for a specific person's grades and ACT scores, even if they're applying to a public university. 

The ruling here merely says "hey, this law won't keep you from releasing information." But aside from the immediate concerns that forgoing federal funding for a public university could spell financial trouble, the crux of the issue is still unanswered: are these records really supposed to be public in the first place? Or are there other exemptions they could fall under?

I'm very interested in following this case as it develops and finding out if each successive ruling will break new ground, or under what ruling — if there is a favorable ruling — the Tribune could get this information under.


FERPA: http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

An article from the Chronicle of Higher Education: http://chronicle.com/article/Ferpa-Does-Not-Prohibit-U-of/126672/

An article from Inside Higher Ed: http://www.insidehighered.com/news/2011/03/10/federal_judge_rejects_u_of_illinois_attempt_to_use_privacy_law_to_shield_admissions_records

The Illinois FOIA law: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=85&ChapterID=2

The original Chicago Tribune article: http://www.chicagotribune.com/news/local/ct-met-college-clout-lawsuit-0310-20110309,0,515024.story

Tuesday, March 1, 2011

Your actions online — real world ramifications, and does it matter what you do?

Scared that your employer might fire you because of something that you put online? It's a fear that a lot of employees have, and one that remains largely untested. While many companies have specific policies banning employees from keeping blogs, writing about certain things or posting vitriolic comments about their coworkers, a lot of the boundaries detailing what is allowed and what isn't are still hazy. It's not just where, when and how you're publishing content online, but who you are as well.

A case that came out of Connecticut last month is shaping this rule even more after a court ruled against the American Medical Response company in the state, which fired an employee after she posted a negative remark about an employee on her Facebook page. The ruling said the company's posting policies were too broad and that the employee was protected by "protected concerted activity," or as a Tech Republic article calls it, "activity for the mutual aid and protection of employees, like discussions about wages or working conditions." (As the same article states though, the case hasn't been fully adjudicated yet.)

Legal advisers are suggesting that companies tighten up their policies and specify what is allowed and what isn't in order to avoid running into the same problem. But while that's all well and good and helps define the role of an average employee working with a fairly standard business operation, what about when we're dealing with different employees whose role in society goes well beyond that of the worker bee — like, say, teachers?

A Pennsylvanian schoolteacher has been suspended from her job because of a blogging site she kept up over a number of months that sometimes crossed the border from her personal life into her professional life.  In the instances where the teacher, Natalie Monroe, mentions her students, the language is less than kind. An Associated Press article listed several comments she made where describing her students as "disengaged, lazy whiners" who "curse, discuss drugs, talk back, argue for grades, complain about everything, fancy themselves entitled to whatever they desire, and are just generally annoying."

Before we delve into the murky issue of whether teachers' blogs are protected under free speech rights and what kind of leeway they have in that area though, it is first important to look at Monroe's side of the story as well. To her credit, out of the 84 blog posts she put up over the course of the year or so that her blog operated, only 24 referred to school happenings — and out of those, only "some of them were actually focused on it," according to a recent blog post in which Monroe defended her actions. The blog also made no specific references to the kids involved at the school or the name of the school either — as well as Monroe's location, the school's location, her colleagues or any other specific information that would have given her away outright. In fact, she went by the name of "Natalie M" on the blog, which was discovered about a year after its release by students and parents who took the matter to the school. 

Monroe's attorney presents the case as an issue of free speech; one in which Monroe should be allowed to express her opinions in any matter on a blog. The first problem that I run into though with this case is whether the school district had a specific Internet policy outlining the use of private blogs by teachers. We saw in the Connecticut case that the defendant prevailed because the language of the company's policy was too vague. And unless there is some certain stipulation in her teaching contract, I think that Monroe should be allowed to express her opinions on a private blog that she is not using on work time regardless ... but where the situation becomes hazy is whether a teacher should have the right to post on a blog under the precursor of "free speech" when that speech entails a few negative comments about her students.

The dangerous area here is how teachers should behave online and how school districts should be prepared to deal with issues like this. Online, teachers are already held to higher scrutiny than many other professionals. Teachers who post party pictures or profanity on Facebook profiles or other social media profiles readily available to the public are in extreme danger of losing out on teaching positions because of their close relationship with students and the nature of their profession to work with children. As an educator, Monroe is held to high standards, and openly berating students on a not-so-public blogging site is far from professional behavior. 

Without knowing the exact specifics of the school district's Internet policy, it's tough to say if her actions were permissible by those standards or not. Certainly by basic standards of free speech, she should be allowed to say what she wants; I don't think the comments were specific enough to qualify as defamation, since she kept so much of her posts vague. But school districts have the right to establish principles when it comes to what is allowed from their professional staffers and what's not in a professional context. 






Monday, February 7, 2011

Student newspapers deserve freedom of the press, too

An interesting case popped out of California last month that I thought was worth a look.

Rajesh Srinivasan, a student at the University of California-Berkeley and the editor-in-chief of its student newspaper The Daily Californian, was involved in a lawsuit regarding content published on the paper’s website over four years ago.

Srinivasan was sued by Harvey Purtz, the father of a deceased football player from the school. Purtz demanded that Srinivasan remove an article and two blog posts about his son’s involvement in an altercation (physical and verbal abuse of a stripper) at a local adult club and his suspension from the football team that followed that incident.

Purtz’s decision to sue Srinivasan — who was not working at the paper let alone attending the school when the articles were published — was based on supposed “emotional distress” Srinivasan caused by keeping the information on the web after Purtz’s son’s death. The damage? Purtz sued for $7,500 for “intentional infliction of emotional distress.” Again, this wasn’t directed at the paper, its former editors or any of the writers involved with the original reports, but rather at Srinivasan himself.

Naturally, Srinivasan won the case handily when it was brought to small-claims court. Srinivasan’s decision not to pull the information was entirely honorable and the right thing to do.

The paper’s policies made retracting articles upon some sort of sentimental request — not because the information was false or irrelevant — a completely unethical decision. Coupled with the fact that Purtz did not meet two of the requirements for removing the information (having the person mentioned in the article himself filing the lawsuit and filing it within two years of the publication date, which is covered by the Uniform Single Publication Act), it seemed pretty clear from the onset that the court would rule in the defendant’s favor.

Interestingly enough (and perhaps obviously enough), these were the only two points touched upon in the court’s ruling. The larger ethical issues at stake, namely whether the court would rule in Purtz’s favor were his son still alive and were these articles published within the two year time limit, remain completely untouched by the court. One could argue that Purtz might have never even brought the issue to a court’s attention were the first of these circumstances true, but it’s nevertheless still an interesting topic to explore. I believe that no matter what, Purtz did not have a case. His son was a public figure. His actions were public record. There was nothing falsified in The Daily Californian reports. End of story.

This case presents one of the perverse and often baffling challenges journalists face every day: sometimes people just don’t like what you publish. But just because someone dislikes an article for the truth it reveals does not mean that they have the right to make you take it down. What happened to Purtz’s son was tragic. But attacking articles that were more than four years old, that discussed public information about a public football player, was a completely fruitless endeavor.

Not only was The Daily Californian completely within its means to publish this information when it first came out in 2006, it was completely within its means to keep that information online even when the person in question passed away.

I think Srinivasan himself said it best when he told the Fresno Bee that the articles simply did not meet the paper’s standards for retraction:
The truth is, you can’t erase history, and that article is part of UC Berkeley history, for better or for worse.

Docket reports from the case

College Media Matters blog post

Article from the Student Press Law Center

The First Amendment Center's take

Saturday, February 5, 2011


This is a blog I've set up for an independent study course I'm taking at the University of Illinois at Urbana-Champaign. Look for my first entry, coming this Tuesday.