Not Surprised

29 thoughts on Not Surprised

1. Lesson number one, kids: the First Amendment applies only to governmental limitations on free speech. It doesn’t apply to private employers, and it doesn’t apply in the comments section here

   ZuZu

   Why make such attempts at stifling communication? Rubbing people’s noses in the notion that you reserve the right to ignore anything you disagree with you won’t make you any new readers. It won’t make you any new fans. It won’t earn you respect. It will only reveal personal weakness.

2. Oh, look, a concern troll.

   Stifling? No. Merely a reminder that the First Amendment is not so broadly applicable as many people seem to believe. Frankly, it’s one of the more annoying misconceptions that people have about the Constitution, one which makes my teeth itch.

3. Soullite, Zuzu has free speech rights too. Thus, Zuzu has a right to moderate the comments in her own blog any way she sees fit. A lot of people don’t understand that, and accuse bloggers of squelching free speech. I don’t think it is at all inappropriate for Zuzu to explain otherwise.

   I haven’t read the Catholic school decision but it certainly seems appropriate to me. For example, if I run a feminist organization, I may want to reserve the opportunity to terminate employees who take positions contrary to the principles of my organization. (I might not fire the janitor for such a thing, but I might fire my publicity director.) So even though I disagree with the Catholic school about choice, I don’t have a problem with them firing a teacher who takes a public position that is contrary to Catholicism.

4. Not only does Zuzu have the right to moderate her comments as she sees fit, it’s possible that someday she may also have the legal responsibility to do so. I’m not sure if it’s settled law or not whether a blogger is liable for statements made in their comments sections.

5. If she were using her job as a forum for her incongruous views, I think you’d be right: the anti-discrimination/free speech protections wouldn’t apply. However, you state it so strongly that it looks like you’re claiming that only government (public) employers have a legal duty to obey anti-discrimination and free speech laws.

   You’re probably right to say that a school operated by a church is going to get away with this, because explicitly ideologically-based organizations in particular do very well at dodging discrimination laws, so long as they can show that they think God mandates whatever discrimination practices they engage in.

   However, if Wal-Mart (still a private employer) fired an employee for something like this, there’d be absolute hell to pay, you can be sure of it.

   And on another note, I agree that it was somewhat off-putting for you to flamboyantly point out that free speech “doesn’t apply in the comments here.” It’s certainly true, but that doesn’t mean that it’s not in poor taste to rub everyone’s face in it. When I have houseguests, I reserve the right to kick them out if I don’t like their behavior, but that doesn’t mean that I make it a point to tell everyone who comes over “Hey, don’t be a dick while you’re here, or you can get the fuck out.” I don’t expect I’d have a lot of guests, if I did.

6. Dennis, we’ve had issues with trolls wailing about censorship when they’ve been warned about bad behavior.

   Interesting that you should choose the term “flamboyantly” to describe how I made the statement.

   However, if Wal-Mart (still a private employer) fired an employee for something like this, there’d be absolute hell to pay, you can be sure of it.

   Don’t be so sure. Wal-Mart employees are at-will, and unless there’s discrimination or retaliation or some kind of other employment no-no going on, generally there won’t be hell to pay.

7. I don’t know, I’d say knowing that the group was moderated would make me far more likely to stick around and recommend the place (as I have). This isn’t like yelling at your houseguests, this is having a sign out front when you throw a party saying “We’re not putting up with any crashing assholes here, so don’t worry”

8. Why wouldn’t someone have the right to regulate what goes on their own blog? Last I checked, it’s up to the blogger, right down to shutting off comments entirely if you so desire. I don’t get your troll.

9. Actually you do have some 1st Amendment rights most employers cannot void. These would be under the “creed” part of Title VII CRA. But with the religious organizations, the Courts have held that they may hire and fire according to the tenets of their faith. So, zuzu is right. No surprise.

   For an instance of the above. A private employer cannot ask you your political affiliation nor act against you because of that political affiliation. At-will means you can fire somebody for any reason but not the wrong reason.

10. Actually you do have some 1st Amendment rights most employers cannot void. These would be under the “creed” part of Title VII CRA.

    Those rights aren’t conferred by the First Amendment, but by the applicable anti-discrimination laws. Absent those laws (or a provision in an employment contract), employers would be free to hire and fire anyone for any or no reason. The First Amendment–indeed, the entire Constitution–places restrictions on government, not on private parties.

11. Not only does Zuzu have the right to moderate her comments as she sees fit, it’s possible that someday she may also have the legal responsibility to do so. I’m not sure if it’s settled law or not whether a blogger is liable for statements made in their comments sections.

    It may not be settled law as in “the Supreme Court said so,” but a district court in Philadelphia recently held that under the Communications Decency Act, the owner of a blog cannot be held liable as the “publisher” of libelous comments made by others on her blog. The case was DiMeo v. Max, and here are two (one, two) articles about it.

12. At-will means you can fire somebody for any reason but not the wrong reason.

    I have never quite understood this premise. Anyone else who can explain? The at-will clause always sounds like, “We can’t tell you you’re being fired because you’re black, but we’ll just think up another excuse to fire you, when it’s all because of your race but you’ll never know it.” (or substitute “black” for “pregnant,” “female,” “Jewish,” etc.).

    I believe this is why a lot of pregnant women are first to be laid off due to “cutting costs,” or aren’t hired to begin with but are told that it’s their resume, or something similar.

    With the at-will clause, how are we protected from any sort of discrimination, really?

13. Marian,

    Discrimination (including sex, race, and political) is difficult to prove with small employers (unless you’re lucky enough to have an idiot boss who tells you the real reason!), but with large employers courts have accepted statistical evidence before… so that makes it relatively easy.

14. Marian, at-will often is not even a clause. It is the default in many jurisdictions, so that employees are all at will unless they have a contract that specifies otherwise.

15. “My Blog” is like “My Business” is like “My House.” Yes, I do have the right to put someone out of my house for behavior or speech that I find offensive. I’d have the right to put someone out for being the wrong color too. Regrettable? Maybe, maybe not. But there it is.

16. Which of these things is not like the other? You do not have the right to throw someone out of your business for being a member of a race you don’t like. Your business is a public accomodation. The Supreme Court settled this in Katzenback v. McClune, the “Ollie’s Barbecue” case, (IIRC) when it extended the Civil Rights Act of 1964 to virtually every business through the Interstate Commence Clause.

    Your business is not like your house. So there it’s not.

17. I mistyped the name of Katzenbach v. McClung, which folks can read for themselves here.

18. Discrimination is rarely “relatively easy” to prove and few cases are disparate impact cases where statistical evidence can help the case. In the absence of an idiot boss, you have to use circumstantial evidence to show that the stated reason, e.g. cutting costs, is false and being used to cover up the real reason, e.g. pregnancy. Some examples of circumstantial evidence are timing of the decision, other things the decision maker has lied about, and comments that aren’t directly discriminatory but can show animus toward the protected group.

19. And the First Amendment doesn’t apply to your church’s opinions, either, which is why most of us strive to get your churches to keep their opinions to their flocks and out of government.

    No state religion means that no church’s opinion counts to anyone except its own members — and to them only with their consent, one hopes.

20. Which of these things is not like the other? You do not have the right to throw someone out of your business for being a member of a race you don’t like. Your business is a public accomodation. The Supreme Court settled this in Katzenback v. McClune, the “Ollie’s Barbecue” case, (IIRC) when it extended the Civil Rights Act of 1964 to virtually every business through the Interstate Commence Clause.

    Your business is not like your house. So there it’s not.

    I think you’re right, and that’s often the libertarian fallacy. You’ll find many libertarian types on places like Protest Warrior arguing that because a business is “a private institution,” that those running the business are immune to discrimination laws. That only government institutions have to follow such laws, and that it’s the same thing as your own home. But it ain’t.

21. You’ll find many libertarian types on places like Protest Warrior arguing that because a business is “a private institution,” that those running the business are immune to discrimination laws.

    I suppose there are some libertarians who claim this, just as there are those who say that the income tax is illegal because the 16th amendment wasn’t properly ratified, or some such. But most of us (by “us” I mean libertarians) are well aware that discrimination laws do indeed apply to private business. What we believe is that they shouldn’t.

22. I have never understood why an entity that just happens to be funded by the government cannot run its affairs without the controlling review of the first amendment. Example, why shouldn’t the president of a public university be allowed to dictate behavioural norms as a condition of employment for the university’s faculty the same way that the president of a private university can. You or I may not like the managerial style of the university president but this is not the same thing as a state or federal legislature actually proscribing speech. I know, it is the law, but I just don’t see the logic of it. In the case of public employers it is must mere coincidence that they are government entities.

23. When I have houseguests, I reserve the right to kick them out if I don’t like their behavior, but that doesn’t mean that I make it a point to tell everyone who comes over “Hey, don’t be a dick while you’re here, or you can get the fuck out.” I don’t expect I’d have a lot of guests, if I did.

    But at least you know that none of them would be pricks.

24. A Catholic school fired a teacher for being pregnant and unmarried. Was I was naive to think she’d get points for not aborting?

25. There are employment law issues too. There are civil rights laws that forbid discriminating against employees on the basis of religion. If a private school teacher was fired for being publicly anti-abortion, based on her religious beliefs, do you believe the Third Circuit would have been so quick to affirm? Would a court recognize being pro-choice as a religious belief in the same way it is likely to recognize being anti-choice as such? Zuzu, you do a disservice when you oversimplify legal issues so significantly.

26. Why make such attempts at stifling communication? Rubbing people’s noses in the notion that you reserve the right to ignore anything you disagree with you won’t make you any new readers. It won’t make you any new fans. It won’t earn you respect. It will only reveal personal weakness.

    Actually, there are plenty of people, myself included, who rather value space in which they can discuss serious topics like rape, abuse, FGM, et cetera, without being attacked by victim blamers, apologists, and cries of “OMYGOD, you said all men are rapists!”

27. Bess, what are you talking about? As far as we can tell, the teacher never made the claim that she was being discriminated against on the basis of religion. So I’m hardly oversimplifying an issue that doesn’t exist.

28. On February 23, 2003 Curay-Cramer filed a charge with the federal Equal Employment Opportunity Commission, charging Ursuline with violations of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act (PDA).

    On November 7, 2003 Curay-Cramer filed suit in U.S. District Court in Wilmington, adding as defendants several Ursuline employees and the Catholic Diocese of Wilmington and its Bishop.
    The federal lawsuit reasserted the EEOC charges, and added state law claims for defamation, invasion of privacy, and (against the Diocese only) a claim of interference with her employment contract. Among other things, Curay-Cramer argued that other teachers at Ursuline disagreed with Catholic teaching on certain issues, such as capital punishment, but had not been similarly punished.

    All you had to do was read the Complaint (no less the opionion!) to see that the religion as well as speech clauses of the First Amendment WERE raised and discussed, and quite important to the dispute. Or is reading the relevent legal documents was too much trouble?

29. And she lost on a 12(b)(6) motion, Bess, so she failed to state any claim on which relief can be granted.

    But you had asked :Would a court recognize being pro-choice as a religious belief in the same way it is likely to recognize being anti-choice as such? Now you snot that I should have read the complaint. But the complaint doesn’t make any allegations that being pro-choice was a *religious* belief for her, as your hypothetical asserted.

    So your high dudgeon is misplaced.

    Moreover, did you, Bess, read the District Court opinion? The plaintiff claimed that the Ursuline Academy was not organized for any religious purpose whatsoever and that it is both a secular corporation AND an agent of the Diocese. Her other claims are pretty sketchy as well, particularly in light of case law and First Amendment jurisprudence.

    As my Civil Procedure professor used to say, “You can always sue. The question is, can you win?” And apparently this plaintiff’s claims were so badly argued that she couldn’t even get past the complaint stage.

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