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Archive for the ‘First Amendment’ Category

Gregory Lowrey, owner of the Happy Valley Tattoo parlor, challenged the Utah Department of Workforce Services Appeals Board’s decision that the wages of a former employee, Jacklyn Johnson, were subject to unemployment insurance. Lowry argued that the business was part of his church, UBU Ministries, which includes tattooing among its religious tenets.

On appeal to the Utah Court of Appeals, Lowrey contended that Johnson was an employee of UBU and was fired for just cause. The court found that Lowrey failed to prove any of his claims, including the point that UBU qualified as an exempt religious organization:

Lowrey does not identify anything in the record besides his testimony as to UBU’s religious nature that would establish UBU as an exempt organization under the statutory definition.

For the full story, click here.

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In 2004, Mercatus Group partnered with Evanston Northwestern Healthcare to open a physician center in the village of Lake Bluff, a short distance away from the almost 70-year-old Lake Forest Hospital. Recognizing the threat a competing facility would pose, Lake Forest Hospital began a lobbying and public-relations campaign to prevent the center’s launch. The hospital directly lobbied the village board and community members and offered incentives to keep physician-practice groups from leaving the hospital to join the new center. After the village board refused to rezone the land for medical use, the physicians stayed at the hospital, killing the Mercatus center. Mercatus then sued the hospital, alleging anti-competitive practices under the Sherman Act. The trial court found that the hospital’s efforts were constitutionally protected speech and granted summary judgment to the hospital.

On appeal, Mercatus argued that the hospital made misrepresentations to the board, the public, and the physicians it pulled away from the center and that those misrepresentations negated constitutional protection. The Seventh Circuit Court of Appeals rejected the arguments, noting antitrust litigation "’cannot be used to chill [the] constitutional right’ to ‘petition without fear of sanctions.’" The court further stated the following:

To make such injuries from public relations campaigns actionable under the antitrust laws would ‘be tantamount to outlawing all such campaigns.

Finally, the court explained that, though the hospital allegedly lied to physicians that Mercatus had violated certain anti-kickback regulations, antitrust laws do not prohibit "conduct that is only unfair, impolite, or unethical.” Accordingly, the court affirmed the trial court’s decision.

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In September 2005, Tanisha Matthews, an overnight stocker at Wal-Mart for nine years, became involved in an impassioned discussion about God and homosexuality with a lesbian co-worker named Amy during a break. When Wal-Mart officials investigated the incident, they learned that Matthews screamed at Amy that God does not accept gays, that gays should not "be on earth," and that they will "go to hell" because they are not "right in the head." After the three-month investigation, Matthews was fired for violating Wal-Mart’s Discrimination and Harassment Prevention Policy, which prohibits employees from harassment based on an individual’s status, including sexual orientation.

Matthews sued Wal-Mart, arguing that Wal-Mart fired her for stating her religious belief that gays will go to hell, which she maintains is central to her Apostolic-Christian faith. If perceived harassment had really spurred Wal-Mart’s action, Matthews said the company would not have let her continue working with Amy for the next three months during the company’s investigation. The trial court granted summary judgment to Wal-Mart, finding no evidence that similarly situated employees had received different treatment.

On appeal, the Seventh Circuit Court of Appeals affirmed the decision, noting the following:

Wal-Mart fired [Matthews] because she violated the company policy when she harassed a coworker, not because of her beliefs, and employers need not relieve workers from complying with neutral workplace rules as a religious accommodation if it would create an undue hardship.               

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Ester Salinas spent a decade researching the area surrounding the Hayes-Sammons pesticide plant in Mission, Texas. She found that hundreds of children in the area were stillborn, while many others were born with birth defects. Pat Townsend was city manager in 2000, and he ordered the site to be tested by a toxicologist Ester Salinas recommended. He then obtained permission to have a second expert do additional testing, which angered Ester Salinas. At a 2003 Mission city council meeting, Ester Salinas said Townsend "was instrumental in inflicting human suffer[ing] and severe property damage." Two years later at another council meeting, Ester Salinas said, "Justice Day will come and some of you will be judged for the way you have stolen and lied and killed." In a televised interview in 2008, Ester Salinas said, "So we have to go to court to fight because even the mayor in La Joya told me that Norberto Salinas [the current mayor of Mission] went to talk to him to say that they were going to kill me." Mission residents also testified that Ester Salinas called Norberto Salinas a drug dealer and politically corrupt.

Norberto Salinas and Townsend sued Ester Salinas for slander, and the trial court ruled in their favor, awarding $10,000 to Townsend and $30,000 to Norberto Salinas. On appeal, the Texas Court of Appeals found that the statements about Townsend were not slanderous:

Public officials, particularly those in policymaking positions such as mayor, are prone to receiving hyperbolic criticism precisely because of the power they wield. Our only concern is whether her remarks would be reasonably understood by an ordinary listener as having charged Townsend with criminal behavior. They would not.

After dismissing the $10,000 award to Townsend, the court affirmed the remaining slander claims.

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In 2002, Robert Norse was ejected from a Santa Cruz City Council meeting and then arrested for giving the board a “silent Nazi salute.” Norse sued the city counsel, challenging the counsel’s decorum policy and claiming that the ejection and arrest violated his right to free speech. In 2004, while the lawsuit was still pending, Norse was again ejected from a council meeting and arrested for “whispering.” Norse added the new arrest to his complaint, but the day before his trial was set to begin, the trial court granted summary judgment to the city based on qualified immunity. The trial court gave Norse only two days notice of its intent to hear summary judgment arguments, instead of the required ten days notice.

On appeal, the Ninth Circuit Court of Appeals held that the trial court failed to give Norse adequate notice and an opportunity to present evidence before dismissing his complaint. However, the Ninth Circuit found that the council’s policy did not necessarily violate Norse’s rights as it only banned disruptive behavior. The city argued that it was immune from Norse’s claims because members of the public only have First Amendment rights during a set “public comment period.” The court rejected this argument:

The fact that a city may impose reasonable time limitations on speech does not mean it can transform the nature of the forum by doing so, much less extinguish all First Amendment rights. A limited public forum is a limited public forum. Perhaps nothing more, but certainly nothing less. The city’s theory would turn the entire concept on its head.

The court did not determine whether the Nazi salute as used by Norse at the meeting was disruptive and remanded the issue to the trial court. The Ninth Circuit reversed summary judgment on Norse’s free-speech claims, but it found that his false arrest and excessive-force claims against the police officer who removed him from the meeting had been properly dismissed.

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Shawn Byrne challenged a Vermont law banning religious vanity license plates after the state turned down his application for a license plate with “JN36TN,” a reference to John 3:16. Byrne argued that the state’s ban on religious vanity plates violated his First and Fourteenth Amendments rights. The state claimed, however, that was meant to prevent the “distraction and disruption [that would] result from controversial speech” and to “disassociate” the state from speech it does not endorse. The trial court sided with the state, but the Second Circuit Court of Appeals reversed the decision, noting that the ban was viewpoint discrimination that “impermissibly restricts expression from a religious viewpoint and thus violates the Free Speech Clause of the First Amendment.”

The court further noted that the state would have allowed “JN36TN” had Byrne offered a secular meaning for it for, by example, telling the DMV clerk that his name is John, he is 36 and he was born in Tennessee:

Of course, no one other than Byrne himself and the DMV clerk processing his application would know the difference — to all outside observers, the issued plate would appear the same irrespective of Byrne’s supplied meaning — and yet the state would have us approve as ‘reasonable’ its attempt to distinguish between the two applications for the same plate.

Because the state offered no legitimate government interest in drawing such a distinction, the court held the ban was unconstitutional.

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In 1998, the Utah Highway Patrol Association (“UHPA”) began placing 12-foot-high crosses on state highways to honor dead Utah highway patrol troopers. Each memorial displays the name of the fallen trooper, the year in which he died, and a biographical plaque. The American Atheists and three Utah residents challenged the crosses as a violation of the First Amendment’s separation of church and state. They argued that residents were forced into “direct and unwelcome contact with the memorial crosses . . . and would have to alter their commutes in order to avoid” them. The UHPA stated that it consulted with the troopers’ families before erecting the crosses and would have used “a different symbol” by request. The state government argued that the crosses were private speech because Utah did not pay for them and added that it neither approved nor disapproved of the project.

The trial court held that the crosses did not violate the constitution, but the ruling was appealed. The Tenth Circuit Court of Appeals reversed the ruling, noting that the crosses were government speech because the crosses (1) were displayed on public land, (2)were permanent, and (3) implied a “connection between the Utah Highway Patrol and Christianity” that might “lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the Utah Highway Patrol—both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah’s highways.” The court further noted that a cross “memorializes the death of a Christian” and found no evidence that “the cross has been universally embraced as a marker for the burial sites of non-Christians or as a memorial for a non-Christian’s death.”

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