Google & Free Speech

Google_Mountain_View_campus_dinosaur_skeleton_'Stan'I learned something new in recent weeks.  If your blog is not being searched by Google, it tends to disappear from public view.

A defining feature of the marketplace of ideas today is that free speech is increasingly dependent upon  a handful of search engines, led by Google. And that’s kind of scary.  On May 29, 2014, I wrote an article noting that Google had omitted age from its plan to boost diversity in its workforce.  I’ve written a couple of articles about the fact that Google (like many Silicon Valley companies) appears to engage in blatant age discrimination with impunity.  On the day I wrote the article  my blog received almost a thousand impressions from Google.    This means pages from my site appeared in Google search results almost a thousand times.  A week later, my blog was receiving fewer than 100 Google impressions per day.

The chart showing the decline in Google impressions on my blog since May 29 looks like the flume at a water park when standing at the top or a graph of the economy right after the Great Recession. My Google search traffic ranged from 500 to 1,250 impressions per day for the month preceding May 29; it has been below 100 impressions ever since (with the exception of one day when there were 228 impressions).

The link in the decline in search traffic on my blog may be purely coincidental.  And I realize that Google is basically a mathematical formula, an algorithm.  However, clearly Google can be tweaked.  For example, European courts have recognized an individual’s right to be “forgotten” and require  Google to omit certain information from search engine traffic.  What if  Google was hyper-sensitive and was intentionally omitting my blog from searches?  I wondered whether I have any legal right to demand that Google play fair?

The answer appears to be no.

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Library of Congress v. Free Speech

do-not-enterThe Library of Congress (LOC) has closed its doors to a foundation that was created by current and former employees to assist LOC employees in pursing complaints of racial discrimination.

The issue is interesting because it raises concerns about the right to free speech under the First Amendment of the U.S. Constitution, which would appear to be central to the Library’s mission.

A panel of three judges for the U.S. Court of Appeals for the D.C. Circuit recently upheld a lower court’s dismissal of a lawsuit filed against the LOC by The Cook and Shaw Foundation,  a non-profit group formed by present and past employees to assist LOC employees in filing race discrimination lawsuits.

The Library has a policy in which it recognizes certain employee organizations and gives them meeting space, the right to post materials on bulletin boards, etc.  The Foundation’s request for recognition was denied because “the Foundation’s purpose of helping employees bring and maintain lawsuits against the Library is inconsistent with the Library’s policy that recognized employee organizations be ‘concerned only with welfare, financial assistance, recreational, cultural, or professional activities.’”

The Foundation filed a lawsuit alleging the LOC violated the retaliation clause of Title VII of the Civil Rights Act of 1964.  This clause makes it unlawful for an employer to discriminate against any employees (or applicants for employment) because they have opposed any practice made an unlawful by the law or because they have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.

There is a certain logic to the Foundation’s view that helping employees file race discrimination lawsuits relates to their welfare and professional activities.  However, the appeals court ruled that Title VII covers only employees and job applicants and not foundations. The appellate panel said the Foundation failed to identify any particular library employee who was subjected to retaliation in violation of Title VII.

“Perhaps such allegations could have formed the makings of a First Amendment claim by the Foundation. But plaintiffs advanced a Title VII claim,” the panel concludes.

The case is Howard R.l. Cook & Tommy Shaw, et al v. James Billington, #12-5193.

Appeals Court SWATs Free Speech for Police

On the bright side, at least he’s still alive.

A panel of the U.S. District Court of Appeals for the Ninth Circuit in San Francisco this week reversed a jury verdict in favor of Brian Hagen, a Eugene Oregon police officer who was removed from the  department’s K-9 team after expressing safety concerns following several  instances involving the accidental discharge of weapons by members of the department’s SWAT team.

The panel ruled that a “public employee [who] reports departmental-safety concerns to his or her supervisors pursuant to a duty to do so ….does not speak as a private citizen and is not  entitled to First Amendment Protection.”

After three instances of accidental discharge of weapons by SWAT team officers in two years, one of which resulted in the actual shooting of a SWAT team member, Hagen became concerned about safety issues related to the K-9 team working with the SWAT team.  When he  repeatedly pressed for information about improvements to the SWAT team’s weapons handling, he was transferred from the K-9 team.

After a trial, a jury unanimously agreed that the City  had deprived Hagen of his First Amendment right to free speech under the U.S. Constitution by retaliating against him for expressing safety concerns. The jury awarded Hagen $50,000 in compensatory damages and $200,000 in punitive damages.

A three-judge panel of the appeals court ruled on Dec. 3 that the lower court improperly denied the City’s  motion for Judgment as a Matter of Law. The appeals court reversed the jury verdict, vacated the damages, and remanded the case back to the lower court with instructions to enter judgment in favor of the defendants on each of Hagen’s claims. 

The  appeals court agreed with the City’s  argument that Hagen failed to establish that he spoke as a private citizen, rather than as a police officer who was “required by [the] City and police department to report safety concerns.”

 The appeals court said Hagen was required to express concerns about officer safety internally and within the police chain of command. Therefore, it said, even construing all evidence in Hagen’s favor, Hagen did not act as a private citizen who was  eligible to First Amendment protection.

The case is Hagen v. City of Eugene, Peter Kerns, Jennifer Bills, Thom Eichhorn, No. 12-35492.

Teacher Insubordinate; Except for Bible

The Ohio Supreme Court has upheld the dismissal of an eighth grade science teacher who was accused of insubordination because he refused to stop injecting his Christian faith into classroom instruction.

However, Ohio’s top court ruled that teacher John Freshwater had a First Amendment right to keep his personal bible on his desk and his failure to remove the bible was not insubordination. The court noted the school district was afraid that that allowing a teacher to keep a bible on his desk would violate the separation of church and state. “The district feared an Establishment Clause violation where none existed. Unsubstantiated fear alone cannot justify flouting the First Amendment,” wrote the court.

Dating back at least a decade, Freshwater refused to follow the Mount Vernon school district’s approved curriculum with respect to evolution.  Specifically, he refused to stop teaching creationism or intelligent design and the unreliability of carbon dating as reasons to support opposing evolution.

He also refused orders to remove a collage of the Ten Commandments and posters of former President George W. Bush and Colin Powell engaged in prayer. Freshwater taught that homosexuality is a sin. He distributed religious handouts to students, such as “Darwin’s Theory of Evolution—The Premise and the Problem”  from “All About God Ministries.”

The district was sued after Freshwater allegedly used a Tesla Coil electrostatic machine to make the mark of a cross on a student’s arm in 2007.

The Mount Vernon City School District Board of Education terminated Freshwater in 2011 for insubordination in violation of a state statute.

The Ohio Supreme Court concluded that “Freshwater not only ignored the school district’s directive, he defied it. After he was directed to remove the items, Freshwater deliberately added to them, incorporating the Oxford Bible and Jesus of Nazareth into the classroom,” The court notes  that Freshwater “is fully entitled to an ardent faith in Jesus Christ and to interpret Biblical passages according to his faith. But he was not entitled to ignore direct, lawful edicts of his superiors while in the workplace.”

Because there was “ample evidence of insubordination” to justify Freshwater’s dismissal, the court said it was not required to address Freshwater’s argument the school board violated his right to academic freedom pursuant to the First Amendment of the U.S. Constitution.