Tag Archives: First Amendment


The verdict is in. Donald Sterling was naughty. He held some rather unpalatable opinions, voiced them, and instantly acquired fifteen minutes of infamy for all the wrong reasons.

In one magnificent poof, the NBA and the Court of Public Opinion heard his case, and found him wanting. As the NBA’s god du jour wrote his judgment on the walls of every viable television screen in America with a flourish of his magisterial finger, tongues started wagging; some with approval, some with castigation, and some with nothing useful to add. In that singular poof, the money spigot turned on full blast, gushing legal tender down someone’s drain. The spigot will flow for years to come.

There are winners and losers.

The winners include the media, who have yet another reason to sell sensationalism; the NBA, who may, in time, rid itself of a distasteful owner; and the general public, who will have countless hours of entertaining new discussion, ranting and raving to enjoy.

The losers include Donald Sterling, who has to live with Donald Sterling; the NBA, who has to deal with Donald Sterling; and the general public, who will endure countless hours hearing about Donald Sterling.

The more immediate question is whether a lawyer’s blog about the fracas has anything new to offer.

Donald Sterling’s words are more than private thoughts made public. They form the legal fodder for important questions as to the scope and extent of moral turpitude in the context of private contracts. They open the door to consideration of the meaning of the term “for cause”. If, Sterling’s words and thoughts came from the mouth of a corporate manager or director, given a contract that required “cause” for termination, would they be sufficient to constitute “cause”? Would cause exist if the manager or director held such views, but kept them to himself? If not, where is the fine line between bigoted beliefs and bigoted words?

The Washington Supreme Court defined ‘just cause’ in employment cases as “… a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power. We further hold a discharge for ‘just cause’ is one which is not for any arbitrary, capricious, or illegal reason and which is based on facts (1) supported by substantial evidence and (2) reasonably believed by the employer to be true.” Baldwin v. Sisters of Providence, 112 Wn.2d 127, 139, 769 P.2d 298 (1989).

The Court subsequently ruled that “…‘[j]ust cause’ is a term of art in labor law…. Whether there is just cause for discipline entails much more than a valid reason; it involves such elements as procedural fairness, the presence of mitigating circumstances, and the appropriateness of the penalty.” Civil Serv. Comm’n of City of Kelso v. City of Kelso, 137 Wn.2d 166, 173, 969 P.2d 474 (1999). See also Kitsap County Deputy Sheriff’s Guild v. Kitsap County, 140 Wn.App. 516, 519–20, 165 P.3d 1266 (2007) (laying out seven factors typically considered in determining whether just cause exists).

In Sterling’s case, the conduct was measured against the terms of an NBA Constitution that gave broad powers to the Commissioner to effect discipline “upon any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association”. 1 The application of “procedural fairness, the presence of mitigating circumstances, and the appropriateness of the penalty” was irrelevant to the decision. It was an opinion call issued by one vested with authority to render the opinion. Tough luck, Donald. Life ain’t fair.

But would the outcome of a similar case in Court rise to the level of just cause in the case of the corporate manager or director? That is a harder call.

In the context of employment, the Civil Rights Act prohibits discrimination based on race, color, religion, sex, national origin, disability, or age in hiring, promoting, firing, setting wages, testing, training, apprenticeship, and all other terms and conditions of employment. Holding or expressing a private discriminatory thought or belief outside of the workplace that does not result in discriminatory conduct inside the workplace would arguably be protected.

The Constitution prohibited Congress from making laws abridging the freedom of speech. So-called “hate speech” that posed an imminent danger of unlawful action, where the speaker intended to incite unlawful action, remains outside the law. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), Justice Scalia wrote that: “The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey…”.

Donald Sterling’s words cannot, in any event, rise to the level of hate speech intended to incite unlawful action.

But as society loosens its grip on constitutionally protected rights, to the extent that a corporate manager or director’s identical private words create a climate of prejudice that may in turn foster the commission of hate crimes, a court could easily rule that just cause exists for termination.

1 Constitution of the National Basketball Association, Article 35A(d).

Copyright © 2014 Gregory D. Lucas

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Religion and the First Amendment

There is a lot of talk lately about the First Amendment. A lot of it centers on the misplaced preoccupation with “separation of church and state”. We throw the term around as loosely as a poorly packed cow pie on a wet day, assuming that the reference carries great weight with its intended audience. But like the assumption that an ancient coin bearing an image of Caesar belongs to Caesar, we often fail to consider what lies on the other side of the coin.

The First Amendment states that:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Curiously, the term “separation of church and state” does not appear anywhere in the Constitution, much less the First Amendment.

With respect to issues of religion, there are two differing interests in the First Amendment: the Establishment Clause (“Congress shall make no law respecting an establishment of religion …”), and the Free Exercise of Religion Clause (“Congress shall make no law … prohibiting the free exercise [of religion]”). Both clauses were originally intended by our nation’s founders to protect the individual’s right to exercise religion of choice, while prohibiting Congress from adopting an official government religion. Had separation of church and state been a concern, the founders would have said so. Except for the prohibition on Congress, they didn’t.

The individual’s right to worship freely, and to communicate those beliefs, was limited only by a compelling governmental interest that justified limiting individual rights. The challenges that would forever after be raised in that balancing of interests would make any Constitutional Law attorney’s cash register sing out for joy.

Take, for instance, the case of Draper v. Logan County Pub. Library, 403 F. Supp. 2d 608 (W.D. Ky. 2005). Kimberly Draper was a librarian in the Logan County Public Library. On occasion, she had the audacity to wear religious jewelry that included crosses, or religious T-shirts. In its efforts to impose its twisted view of separation of church and state on Ms. Draper, the Library enforced its dress code on her prohibiting clothing depicting religious, political, or potentially offensive decoration. In particular, the Library Director ordered her to remove a cross that she was wearing. When she refused, Draper was summarily fired.

Draper’s right under the Free Exercise Clause to wear the cross, and the Library’s intent to eliminate religious speech by its employees met head-on.

For Draper to prevail, she had to establish that:

(1) she was engaged in a constitutionally protected activity; (2) that the defendant’s adverse action caused her to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of her constitutional rights. Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2002) (quoting Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir.2000)) (alterations in original).

To prove that she was engaged in a constitutionally protected activity, her actions had to fall within constitutionally protected conduct known as “expressive conduct” or “symbolic speech”. In other words, by wearing a cross, she had to have intended to convey a particular message that would have a great likelihood of being understood by those who saw it as carrying her intended message. Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Second, Ms. Draper had to show that her conduct touched on a matter of public concern. Cockrel, 270 F.3d at 1048.

Once she met those requirements, the burden shifted to the government to demonstrate that her interest in speaking on this matter was outweighed by its interest in promoting the efficiency of its public services. (quoting Leary, 228 F.3d at 737); see Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987).

In holding in favor of Ms. Draper, the Court ruled that:

In determining whether contested speech addresses a matter of public concern, a reviewing court must question “the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives.” Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1189 (6th Cir.1995). Thus, speech that can “be fairly considered as relating to any matter of political, social, or other concern to the community” is protected, while speech involving matters “only of personal interest” is not. Cockrel, 270 F.3d at 1052 (citing Connick, 461 U.S. at 149-49, 103 S.Ct. 1684)….The phrase “public concern,” does “not mean matters of trancendent importance, such as the origins of the universe or the merits of constitutional monarchy; [it] mean[s] matters in which the public might be interested, as distinct from wholly personal grievances . . . and casual chit-chat.” Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir.1996).

Query, then, how jurisprudence could justify a nearly opposite holding in Daniels v. City of Arlington, Texas, 246 F.3d 500 (5th Cir.2001), in which a police officer’s act of wearing a small gold cross pin on his uniform was admittedly a symbolic [expression] of his religious beliefs — but intensely personal in nature, and did not constitute a matter of “public concern”.

Kimberly Draper’s cross was a matter of public interest. Officer Daniels’ cross was not.

The tortured reasoning behind the denial of Officer Daniels’ right to wear a cross suggests that courts will always find a way to do whatever they want to do. More’s the pity.

If the Constitution is our only protection from the abuses of government, and if those protections can be discarded like yesterday’s cheese, we live in imminent peril.

Nelson Mandela wrote: “When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw.”

It may be time to break out the spurs.

    Copyright © 2014 Gregory D. Lucas

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