Category: reason

Police in Golden Valley, Minnesota, used drones to see if anyone was bathing nude or topless on a secluded beach on Twin Lake. Nude and topless sunbathing is illegal, but bathers have been stripping off at that beach for decades. Police Sgt. Randy Mahlen told a local TV station that using drones to police nude sunbathing is “no different than a surveillance camera in a public place for a high-crime area.”

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[This is a serialization, with slight updates, of my 2012 article on the subject; for the Introduction (which also discusses my ambivalence about such laws), see this post.]

I talked earlier about laws that seem to protect a broad range of employee speech; now we turn to ones that seem to be narrower, either because they protect “political opinions” without discussion speech or political activity, because they protect only party affiliation, or because they protect only election-related activities.

[A.] Holding Political Opinions or Beliefs—New Mexico, (to Some Extent) Montana, and Harford, Howard, and Prince George’s Counties (Maryland) and Lansing (Michigan)

New Mexico bars discrimination based on “political opinions.” This could be read broadly, to include discrimination based on speech expressing political views, or narrowly to include only discrimination motivated by disapproval of an employee’s beliefs and to exclude discrimination motivated by worry that the employee’s speech expressing those beliefs is disruptive to the business.

New Mexico: [It is a felony for any employer of an employee] entitled to vote at any election, [to] directly or indirectly discharg[e] or threaten[] to discharge such employee because of the employee’s political opinions or belief[s] or because of such employee’s intention to vote or refrain from voting for any candidate, party, proposition, question, or constitutional amendment.

[It is a felony for any employer of an employee] entitled to vote at any [municipal] election [to] directly or indirectly discharg[e] or penaliz[e] or threaten[] to discharge or penalize such employee because of the employee’s opinions or beliefs or because of such employee’s intention to vote or to refrain from voting for any candidate or for or against any question.

Harford County, Howard County, and Prince George’s County (all in Maryland, and containing about ¼ of the state’s population) also ban discrimination based on “political opinion,” defined as “The opinion of persons relating to government or the conduct of government or related to political parties authorized to participate in primary elections in the state.” Lansing, Michigan, bans discrimination based on “political affiliation or belief,” without defining the terms.

Montana also imposes a similar rule for government contractors, and for health care facilities (including private facilities); the language seems broad enough to bar both discrimination against patrons and discrimination against employees or applicants for employment:

Montana: Every state or local contract or subcontract for construction of public buildings or for other public work or for goods or services must contain a provision that all hiring must be on the basis of merit and qualifications and a provision that there may not be discrimination on the basis of race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin by the persons performing the contract.

All phases of the operation of a health care facility must be without discrimination against anyone on the basis of race, creed, religion, color, national origin, sex, age, marital status, physical or mental disability, or political ideas.

The Montana Constitution provides that “Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas,” but it’s not clear whether the ban on discrimination “in the exercise of … civil … rights” include discrimination in employment.

[B.] Belonging to, Endorsing, or Affiliating With a Political Party—District of Columbia, Iowa, Louisiana, Puerto Rico, Virgin Islands, Broward County (Florida), Urbana (Illinois)

These laws bar employers from discriminating against employees based on party membership. Most of them also bar discrimination based on the party that the employees “endorse” (D.C., Broward, Urbana) or “affiliate” with (Puerto Rico, Virgin Islands), which seems to cover speech expressing support for the party.

District of Columbia: [No employer may discriminate against employees or prospective employees] based upon the actual or perceived … political affiliation [defined as “the state of belonging to or endorsing any political party”] of any individual ….

Iowa: A person commits the crime of election misconduct in the first degree if the person willfully [i]ntimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, a person … [t]o exercise [or not exercise] a right under chapters 39 through 53 [including declaring party affiliation, Iowa Code Ann. §§ 43.41-.42]. (For an explanation of why this statute, which generally bans threats, likely also applies to threats of loss of employment, see item 8 in this post.)

Louisiana: No person shall knowingly, willfully, or intentionally: [i]ntimidate …, directly or indirectly, any voter or prospective voter in … any matter concerning the voluntary affiliation or nonaffiliation of a voter with any political party.

Puerto Rico: Any employer who performs any act of prejudicial discrimination against [an employee because he is] … affiliated with a certain political party, shall be guilty … of a misdemeanor ….

Virgin Islands: It shall be an unlawful discriminatory practice … [f]or an employer, because of … [the] political affiliation of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

Broward County (Florida): It is a discriminatory practice for an employer: … [t]o fail or refuse to hire, to discharge, or to otherwise discriminate against an individual, with respect to compensation or the terms, conditions, or privileges of employment, because of a discriminatory classification [including “political affiliation,” defined as “belonging to or endorsing any political party”] … [except] where these qualifications are bona fide occupational qualifications reasonably necessary to the normal operation of that particular business or enterprise.”

Urbana (Illinois): It shall be an unlawful practice for an employer … [to discriminate against any employee or applicant] based wholly or partially on [an employee’s belonging to or endorsing any political party or organization or taking part in any activities of a political nature] … [except] where such factors are bona fide occupational qualifications necessary for such employment.

As an earlier post noted, Louisiana law also provides many employees protection against dismissal for political activities and not just for party membership.

[C.] Engaging in Electoral Activities—Illinois, New York, Washington

New York and Washington expressly bar employers from discriminating against employees for their election-related speech and political activities. (For more on another New York provision that may be relevant in non-election-related cases, see here.) Illinois law would likely be interpreted the same way, given the likelihood that threats of dismissal from employment would qualify as “intimidation” or “threat.”

Illinois: Any person who, by force, intimidation, threat, deception or forgery, knowingly prevents any other person from (a) registering to vote, or (b) lawfully voting, supporting or opposing the nomination or election of any person for public office or any public question voted upon at any election, shall be guilty of a … felony [and shall be subject to civil liability].

New York: (1) (a) “Political activities” shall mean (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 … .

(2)(a) [No employer may discriminate against an employee or prospective employee because of] an individual’s [legal] political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property [except when the employee is a professional journalist, or a government employee who is partly funded with federal money and thus covered by federal sta­tu­tory bans on politicking by government employees] … .

(3)(a) [This section shall not be deemed to protect activity which] 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.

Washington: No employer … may discriminate against an … employee … for … in any way supporting or opposing [or not supporting or opposing] a candidate, ballot proposition, political party, or political committee.

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Every fall, law firms visit law schools to conduct on-campus recruiting. Usually, associates and some partners will interview many students, back-to-back, on a single day. Students can “bid” for time slots with different firms. Schools will usually open up a suite of offices for firms to conduct these interviews. Some students will then get a “call back,” that is, an invitation to visit the firm in person. That interview could last an hour, two hours, half a day, or a full day. Different firms have different approaches. At the end of the process, firms will hand a small number of students offers to work as summer associates. And generally, those summer positions lead to offers of full-time employment after graduation. On-campus recruiting is very, very important.

This fall, on-campus recruiting will be different. Law firms will not be able to visit law schools. All interviews will be conducted over Zoom, and similar platforms. This shift creates new challenges.

First, there are technological problems. On any given day, internet access may falter. If a student’s connection drops during class, professors may be forgiving. But if a student has a 15-minute screening interview with a busy partner, a dropped connection could make the difference between a call-back and a rejection letter.

Second, most students use the camera and microphone that is built into their computers. The quality is invariably poor. The sound is garbled and the image is grainy.

Third, students will also be broadcasting from non-ideal environments. Maybe the lighting is bad. Maybe there is background noise. Maybe roommates or family members interrupt the interview. In the backdrop, there may be a dirty bed. (And virtual backdrops are not foolproof). So many things can happen that could send the interview in a bad direction.

Fourth, students are not trained how to conduct interviews over video chat. Maintaining eye contact with a camera is different from maintaining eye contact with a person in real life. If you stare at your screen, and not at your camera, the person on the other end will sense the lack of eye contact. (See this post for details on looking at the camera).

Law schools can help with all of these challenges. How? Law schools can set up dedicated Zoom studios for students to conduct on-campus interviews. These studios can have high-definition cameras, professional microphones, quality lighting, and an appropriate backdrop. The output from these studios will place students above their competition. Appearances do matter. And schools should provide training about how to conduct interviews over Zoom.

Without question, these studios would increase costs. It will also be expensive to clean them between uses. But–cynically–law schools tend to focus on the students who pursue high paying jobs. Criticize that fact if you wish, but it is true. If there is a way to invest resources to ensure current law students obtain high-paying employment in these difficult, then that investment is worthwhile.

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I much enjoyed doing this, and I hope you have fun watching it!

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From Ness v. City of Bloomington, decided Thursday by Judge Ann D. Montgomery (D. Minn.):

Bloomington City Ordinance § 5.21(24) … prohibits any person in a City park from “intentionally tak[ing] a photograph or otherwise record[ing] a child without the consent of the child’s parent or guardian.” …

[Sally] Ness lives in the Smith Park neighborhood in the City of Bloomington, Minnesota. In 2011, the Dar Al-Farooq Center (“DAF”) (formerly known as the Islamic Al Farooq Youth and Family Center) applied for and obtained a Conditional Use Permit (“CUP”) for a “quasi-public” site in the Smith Park neighborhood….

In 2017, DAF opened Success Academy charter school. The City Council offered the use of Smith Park, located adjacent to the DAF/Success Academy site, for use by Success Academy’s students during recess. Ness alleges that DAF and Success Academy use the Smith Park playground six times per weekday and on weekends, and that their usage has rendered the park essentially unavailable for use by the general public, including Ness and her grandchildren.

Ness also alleges that since 2011, DAF and, in more recent years, Success Academy have ignored and violated the CUP and a Joint Use Agreement (“JUA”) they obtained from the City. The alleged violations include parking and traffic violations and the excessive use of DAF’s facilities and public facilities, including Smith Park. Ness claims the City has ignored its duties and responsibilities to enforce the CUP and JUA.

Ness describes herself as the “point person for delivering neighborhood concerns to City officials.” “She also maintains a public blog and Facebook page that documents many developments, observations, and concerns related to the DAF/Success Academy controversy in order to inform the public.” …

On October 30, 2019, City police detective Kristin Boomer … interviewed Ness and her attorney, Larry Frost … to investigate a report that Ness and Frost had harassed children in Smith Park on September 23, 2019 by photographing and filming them during a Success Academy recess period…. Detective Boomer first interviewed Frost, who stated he accompanied Ness and her grandchildren to Smith Park on September 23 because Ness wanted him to see the “dangerous conditions for preschool children” caused by the older Success Academy children on the playground. Frost stated that Ness was concerned about the safety of her grandchildren at Smith Park but did not want to get in trouble for taking photographs of her grandchildren using the playground equipment, so Frost took photographs for her.

Detective Boomer then interviewed Ness, who stated she used her phone to make audio recordings of Frost speaking to other people at the park. [Ultimately, no charges were brought against Ness under existing Minnesota harassment statutes. -EV] …

On October 28, 2019, the City of Bloomington’s City Council approved several revisions to City Ordinance § 5.21 [which governs behavior in city parks], including the addition of subdivision 24, which states:

“… No person shall intentionally take a photograph or otherwise record a child [defined as anyone under 18] without the consent of the child’s parent or guardian.” …

The First Amendment offers some protection for recording and photography. See, e.g., Chestnut v. Wallace (8th Cir. 2020) (collecting cases concluding that the First Amendment protects recording of police); Josephine Havlak Photographer, Inc. v. Village of Twin Oaks (8th Cir. 2017) (applying First Amendment analysis to ordinance regulating commercial activity, including photography, in a public park). However, “[e]ven in a public forum the [State] may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” …

“The constitutionality of [a statute] regulating the exercise of protected speech in a public forum depends in large part on whether it is content based or content neutral.” “The commonsense meaning of the phrase ‘content based’ requires a court to consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speaker’s message or viewpoint, it is content neutral….

[When it comes to content-neutral restrictions,] “[t]he government may restrict disruptive and unwelcome speech to protect unwilling listeners when there are other important interests at stake. Where there are competing interests and values, courts must find an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners.”

Here, the City has an important government interest in protecting children’s privacy, protecting children from intimidation or exploitation, and coordinating competing uses of the City parks.

Ness argues that the City Ordinance is underinclusive because if a person takes a step outside a City park and films children from the street, the City Ordinance will not be violated. Ness contends this underinclusiveness undermines the City’s claimed interest in protecting children’s privacy and preventing them from being exploited or intimidated. However, requiring would-be recorders to collect images from a distance, rather from inside a City park, makes it less likely that a child in the park will feel frightened or that the child’s identity will be ascertainable. Thus, the City’s important government interest in protecting children is not undermined by allowing a person to record children from just outside a City park’s boundaries….

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting children’s privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored….

The City Ordinance leaves open ample alternative channels to gather information through recording. As noted earlier, the City Ordinance allows a person to record or photograph from just outside the perimeter of a City park, thereby allowing the person to collect the information needed to ultimately convey their message.

Because the City Ordinance is content neutral, is narrowly tailored to serve an important governmental interest, and leaves open ample alternative channels to collect and communicate information, Ness has not plausibly alleged that the City Ordinance is facially invalid under the First Amendment….

Ness has also failed to plausibly allege that the City Ordinance, as applied to her, violates the First Amendment. Ness alleges the City’s motivation in approving the City Ordinance was “to silence Plaintiff Ness by prohibiting her from videotaping and photographing the activities of DAF and the Success Academy.” Taking this allegation as true, legislative motive is irrelevant if, as here, the ordinance is neutral on its face…. “[R]egardless of any evidence of the … motivation for passing the [statute], the plain meaning of the text controls, and the … specific motivation for passing a law is not relevant, so long as the provision is neutral on its face.” …

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7/27/1929: The Geneva Conventions are signed by United States. The Supreme Court would consider the Conventions in Hamdan v. Rumsfeld (2006).

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