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Newsweek (Meghan Roos) reports:

The president of a literary agency [the Jennifer De Chiara Literary Agency] based in New York City said Monday on Twitter that one of the agency’s employees was terminated after her use of conservative social media sites Parler and Gab was discovered.

Is that legal?

The First Amendment, by its terms, doesn’t apply to private employers. It says “Congress shall …,” which has been read as applying to the federal government generally; the Fourteenth Amendment, which starts with “no state,” has applied this to state and local governments. But just as private firings based on religion or race don’t violate the Free Exercise Clause or the Equal Protection Clause, private firings based on speech don’t violate the Free Speech Clause.

But they might violate statutes. Federal law, for instance, generally bans private employers with 15 or more employees from firing people based on race and religion; many state laws do the same even as to smaller employers. And a considerable number of states bans firings based on certain kinds of speech or political activity, though the rules vary from state to state (and sometimes even by city and county), and are often quite vague.

I canvassed these laws in a 2012 article (and Utah has enacted a new law since then), but for now let’s turn to the New York law. Let’s assume for this that the article is correct in describing Oefelein as an employee; the law may not apply to certain kinds of independent contractors. (Whether New York law applies to an employee who apparently works from Alaska is an interesting question, which I’ll set aside for now; it would likely to turn on various details of the employment relationship, including whether the employment contract calls for applying New York law. Alaska has no such employee protection law.)

New York bars employer retaliation for off-duty “recreational activities,” including, among other things, “reading and the viewing of television, movies, and similar material.”

(2) Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of …

(c) an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property …

{“Recreational activities” shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material ….}

(3)(a) [This section shall not be deemed to protect activity that] creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest ….

(4) [A]n employer shall not be in violation of this section where the employer takes action based on the belief … that: … (iii) the individual’s actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.[1]

A separate part of the statute expressly protects a limited range of partisan political activities (“(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group”); the question is whether the “recreational activities” protection covers political commentary on social media that’s outside those narrow categories.

The answer is unfortunately unsettled. Court decisions have indeed treated “recreational activities” as including arguing about politics at a social function[2] and participating in a vigil for a man killed because of his homosexuality.[3] Plus if “reading and the viewing of television, movies and similar material” is recreational, why wouldn’t writing and posting material on a social media platform be recreational too?

But one court has held that picketing is not sufficiently “recreational” to qualify.[4] Other New York courts have likewise held that certain non-speech activities—dating[5] and organizing and participating in “after-work celebrations with fellow employees”[6]—that might normally be seen as recreational nonetheless are not covered by the statute. This suggests that “recreational activities” might likewise be read narrowly in some speech cases.

It’s also not clear how the “without use of the employer’s equipment or other property” exception would play out here. There would be a factual question: Did the employee, for instance, use a company-issued phone or computer? And there may be a legal question: How should company-issued devices that are expected to be used at home for personal purposes alongside business purposes be treated for purposes of the law? I know of no cases exploring that.

What about the exception for activity that “creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest”—could an employer argue that it allows firing for any activity that might harm the employer’s business by offending some customers or business partners?

One case read the exception as allowing the German National Tourist Office to fire an employee for becoming known as the translator of some Holocaust revisionist articles.[7] Presumably the court’s view was that the activity could lead to public hostility to the office, and that this hostility created a “conflict of interest” between the employee and the employer’s “business interest.” If that’s so, it could apply to any speech or other recreational conduct that’s sufficiently unpopular. But other cases interpreting similar statutes in other states, however, consider some speech to be protected even when it does undermine the employer’s business, for instance by offending customers.

Again, keep in mind that this is the New York statute; if a similar matter comes up in another state, you’d need to consult the statute in that state (or, in some instances, city or county). And note that none of this speaks to whether these laws are good ideas. Perhaps employers should be free to fire employees based on their speech or political activity or recreational activity (or their religion or sexual preference or race or what have you); or perhaps speech should be treated more like, for instance, religion, as a basis on which the employer may not fire an employee (even if the religion is quite unpopular); here, I just talk about what the law is.

[1] N.Y. Lab. Law § 201-d (McKinney 2011) (enacted 1992).

[2] Cavanaugh v. Doherty, 243 A.D.2d 92, 100 (N.Y. App. Div. 1998) (treating an allegation that plaintiff was fired “as a result of a discussion during recreational activities outside of the workplace in which her political affiliations became an issue” as covered by the statute).

[3] El-Amine v. Avon Prods., Inc., 293 A.D.2d 283 (N.Y. App. Div. 2002) (affirming denial of summary judgment in a § 201-d(2) case apparently brought based on plaintiff’s “involvement in a vigil for Matthew Shepard, the gay college student who was brutally murdered in Laramie, Wyoming,” Jennifer Gonnerman, Avon Firing, Village Voice, Mar. 2, 1999).

[4] Kolb v. Camilleri, No. 02-CV-0117A(Sr), 2008 WL 3049855, at *13 (W.D.N.Y. Aug. 1, 2008) (“Plaintiff did not engage in picketing for his leisure, but as a form of protest. While the Court has found such protest worthy of constitutional protection, it should not engender simultaneous protection as a recreational activity akin to ‘sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.'”).

[5] E.g., Hudson v. Goldman Sachs & Co., 283 A.D.2d 246 (N.Y. App. Div. 2001) (“romantic relationships are not protected ‘recreational activities'”); State v. Wal-Mart Stores, Inc., 207 A.D.2d 150 (N.Y. App. Div. 1995) (“dating is entirely distinct from … recreational activity”) (internal quotation marks omitted). But see id. at 153 (Yesawich, J., dissenting) (arguing that dating should be seen as covered).

[6] Delran v. Prada USA Corp., No. 101691/04, 2004 WL 5488006 (N.Y. Sup. Ct. Aug. 2, 2004).

[7] Berg v. German Nat’l Tourist Office, 248 A.D.2d 297 (N.Y. App. Div. 1998); Paul Schwartzman, It Just Isn’t Write[;] German Axed Over Hate Mag Article, Daily News (N.Y.), May 11, 1995, at 6.

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Yesterday Pres. Biden issued an Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities. The operative bit is simple enough: “The Attorney General shall not renew Department of Justice contracts with privately operated criminal detention facilities, as consistent with applicable law.” The policy section before it is worth quoting in full:

More than two million people are currently incarcerated in the United States, including a disproportionate number of people of color. There is broad consensus that our current system of mass incarceration imposes significant costs and hardships on our society and communities and does not make us safer. To decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities.

We must ensure that our Nation’s incarceration and correctional systems are prioritizing rehabilitation and redemption. Incarcerated individuals should be given a fair chance to fully reintegrate into their communities, including by participating in programming tailored to earning a good living, securing affordable housing, and participating in our democracy as our fellow citizens. However, privately operated criminal detention facilities consistently underperform Federal facilities with respect to correctional services, programs, and resources. We should ensure that time in prison prepares individuals for the next chapter of their lives.

The Federal Government also has a responsibility to ensure the safe and humane treatment of those in the Federal criminal justice system. However, as the Department of Justice’s Office of Inspector General found in 2016, privately operated criminal detention facilities do not maintain the same levels of safety and security for people in the Federal criminal justice system or for correctional staff. We have a duty to provide these individuals with safe working and living conditions.

This picks up on the anti-private-prison memo issued toward the end of the Obama Administration, which I wrote about back in 2016. In particular, I find the reliance on the Inspector General’s 2016 report to be misplaced, since the IG’s report doesn’t truly show that the private sector underperforms the public sector.

I agree that the incarceration system needs reform. (And not just the incarceration system itself: I would also look at the mass of criminal laws, including drug laws; and the investigation, prosecution, and sentencing processes. But O.K., let’s also look at the incarceration system.) But well-intentioned prison reformers too often blame private prisons for problems that plague incarceration generally. For some, this may relate to a broader skepticism of markets; for some, this may relate to a view that profitmaking (while possibly appropriate elsewhere) is inappropriate for prisons. I believe that, on the contrary, the problems of incarceration aren’t particularly attributable to private prisons, and aren’t generally greater in private prisons than elsewhere; the moral objections are insubstantial; and perhaps those of us who want to reform prisons might consider increasing the use of private prisons:

• Are private prisons better or worse than private prisons? Relatedly, do private prisons really save money? (And if so, a lot or a little?) These questions turn out to be surprisingly hard to answer. The cost question is difficult because of different accounting conventions between the private and public sectors. And the quality question is difficult because of the general failure to adopt performance standards and measure consistent quality numbers between sectors. Nonetheless, there have been a few good-quality studies, and these don’t generally find consistent differences between the public and private sectors. Public prisons outperform private prisons on some indicators, and do worse on others. <a href="https://ift.tt/3ooksd8 Part I of my Emory Law Journal article for more details on this. This is a challenge for defenders and critics of private prisons alike: if private prisons were such a humanitarian disaster, shouldn’t we clearly see that in the data? But if the magic of the market made private prisons so much better, shouldn’t we see that as well? In reality, we don’t see either strong result.
• Do private prisons lobby for greater incarceration? It turns out there’s little solid evidence of this. Of course they lobby for greater privatization and to get more contracts, so you can see plenty of evidence of private prison lobbying. How about lobbying in favor of pro-incarceration policies, like stronger sentences or stricter enforcement? It’s hard to see strong evidence of this. By contract, it’s not hard to see evidence of pro-incarceration lobbying by public correctional officers’ unions. See my Stanford Law Review article for more details on this. Moreover, it’s not clear that greater privatization would make this problem greater; plausibly, it might alleviate the problem by splitting the industry up into a greater number of actors who would have more incentives to free-ride off each other.
• Are there moral, non-consequentialist problems with prison privatization? (I.e., put aside any issues of cost, quality, accountability, and political influence, which are empirical issues that can be proven or disproven by the data, and merely focus on the supposed inconsistency of prison privatization with liberal values, expressive harms, etc.) I argue that there are no such problems. When we say “the state must punish”, we really mean that state employees must punish. But state employees are private people who agree, by contract, to do the state’s bidding in exchange for money. And this is the same thing that private prison providers agree to do. At this high, abstract level, there’s no morally significant difference between public employees and private contractors. Of course the form of the contract matters: different types of contracts can have different incentives and lead to different actions—which relates to how well prisoners are treated, and all sorts of other morally significant dimensions of incarceration. But those are empirical questions—and the possible details of how contracts are structured are infinitely various, so even if private prisons do badly, the response could just be “mend it, don’t end it”.
• This last point is significant: if we can’t see much of a difference between private and public prisons in the data, perhaps this is because we haven’t really begun to explore the possibilities of contracting. As I noted above, contracts generally aren’t performance-based. But the Bureau of Prisons and state Departments of Corrections could make more of an effort to move in that direction. Why not incentivize rehabilitation by making a substantial part of contract payments depend on recidivism two years out, and/or releasees’ employment outcomes? Why not make a substantial part of contract payments depend on positive health outcomes for prisoners, floor space, in-prison security, and so on? If private corporations are so profit-grubbing, they’ll be glad to maximize whatever their contracts tell them to maximize. So performance-based contracting can be central to a comprehensive plan of prison reform. See Parts II and III of my Emory Law Journal article for more on this. (This could be done in public prisons too, through performance-based payments to public prison wardens. But there’s probably more room to experiment with compensation schemes in private contracting, and private firms would probably have greater flexibility to experiments, if their contracts allow them to.)
• One source of skepticism of privatization might come from “guilt by association”. Perhaps prison privatization has been pushed, in part, by conservatives who don’t have much interest in prison reform or prisoner welfare. If so, that means that the Biden Administration is the perfect time to increase federal prison privatization. Prison privatization should be overseen by people who will invest in meaningful prison monitoring, who will insist that good performance measures be written into contracts, and who will be willing to penalize underperforming contractors.

tl;dr: Yes, let’s reform prisons. How about if we reform by increasing prison privatization rather than abandoning it?

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If President Joe Biden really wanted to unite the country at this moment of profound political crisis and existential dread, a powerful gesture is available to him. He could earn the appreciation of millions of parents by simply asserting that public school teachers—including those currently on strike in Chicago—must return to their classrooms.

Unfortunately, Biden and his surrogates have repeatedly sidestepped questions from reporters, giving no indication that the administration will defy the politically powerful teachers unions currently waging a quixotic campaign to keep schools closed for as long as possible.

“It seems like Biden is refusing to acknowledge the fact that there is increasingly a conflict between school districts that are trying to make schools safe so kids can get back to in-class learning with PPE and better ventilation and more, and teachers unions who are concerned about their teachers getting COVID and are basically just refusing what the health officials say they should be doing,” said CNN’s Jake Tapper on his program Tuesday evening.

Erin Burnett, another CNN anchor, asked White House Chief of Staff Ron Klain about schools. Klain demurred, saying that Congress must allocate billions in funding for schools before many of them can reopen.

“We need Congress to pass that plan so we can do the kinds of things you need to do so that the schools can be safe, so the teachers can be safe, so the students can be safe—sadly, it costs money,” said Klain.

Chicago Public Schools, though, has already implemented many of the mitigation strategies that government planners have in mind, and the district believes teachers can safely go back to class. Officials have good reason to think this: Outside major cities, many schools—including a great number of private schools that lack easy access to government dollars—have been open since at least September, and there’s simply no evidence of widespread disease in classrooms. Schools have not played host to superspreader events, and there’s little reason to think that students are infecting their teachers. Even the CDC, which is hardly known for taking an incautious approach to resuming normal life, says that schools can reopen safely.

"Of the nearly 17,000 students enrolled in the diocese’s 41 schools, fewer than 200 students have been diagnosed with COVID-19." And not a single hospitalized teacher. Catholic schools reopened safely—why can't public schools do the same? https://t.co/LYgInkjLs8 via @crousselle

— Robby Soave (@robbysoave) January 27, 2021

Try telling that to teachers unions: Their response is thunderous denial that schools are safe enough yet. In fact, Chicago teachers are now engaged in what the district has described as an “illegal strike” to disrupt the city’s plan to reopen schools on February 1. The strike has actually forced Chicago preschools—which were open already—to close down because the teachers don’t plan to show up.

“As a result, we have no choice but to ask parents to keep your children home [Wednesday],” said the district in a statement. “We are greatly concerned for our youngest and highest-need students, who are suddenly without a safe, in-person learning option, and are continuing to make all possible efforts to reach an agreement that addresses the union’s priorities and provides families a much-needed resolution.”

Thanks to the Chicago Teachers Union’s efforts, city schools are even more shut down than they were a week ago. But the union is perfectly content to hold the city hostage for as long as possible. Its Twitter account recently released a video of “rank-and-file dance teachers” expressing their opposition to reopening through the medium of dance.

Six of our rank-and-file dance teachers come together to use their art form as a voice to express their desire to feel safe amidst CPS' teacher return policy. They stand in solidarity with all educators at risk, because no one should have to choose between life and livelihood. pic.twitter.com/gajXH9PReE

— ChicagoTeachersUnion (@CTULocal1) January 23, 2021

National teachers union boss Randi Weingarten, president of the American Federation of Teachers, said that she stands behind CTU “100 percent.” And if Biden disagrees with the teachers unions, he certainly isn’t saying so. (His incoming deputy education secretary fought tooth and nail to keep San Diego schools closed.)

The administration’s evasiveness on the question of school reopenings must be demoralizing for U.S. families who desperately want their children back in school and accept the scientific consensus that this can and should be done right now. The teachers unions have made it perfectly clear that they will thwart reopening plans, not just this month and next, but also in the fall, and perhaps in 2022 as well. In Fairfax, Virginia, a teachers union president recently asserted that she would keep kids out of school at least three days each week, even if school employees had been vaccinated.

Many of the public education system’s neediest students have now been at home, suffering through the farce of virtual learning, for nearly an entire year. With no powerful public union on their side, they have truly become the unheard. They deserve better choices than this.

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