Featured Guest Blogger Sarah Hinchliff Pearson

When Speech Can Get You in Trouble, Despite the First Amendment: The Shirvell Case

When an employer restricts an employee’s right to speak, by banning employee blogs or limiting what employees can say on social media sites, it is common for people to say it is a violation of the First Amendment right to free speech. This is not true. The First Amendment only protects people from government restrictions on speech. Private employers have no First Amendment limitations. They can fire employees for their speech without any constitutional consequences. (Employees are protected from being fired for some speech – like whistleblowing or union involvement – but these are statutory and unrelated to the First Amendment.)

Featured Guest Blogger Sarah Hinchliff Pearson

BROWSER BEWARE: WHAT YOU DON’T READ MAY STILL LEGALLY BIND YOU

Without realizing it, we have all entered into hundreds of legal contracts online. Nearly every website contains “terms of service” or “terms of use,” which dictate the rules under which you are allowed to access that site. Some websites require you to click to agree to the terms (so-called “clickwrap agreements”), while others simply state that by using the site, you agree to all of the terms listed (“browsewrap agreements”). In nearly all cases, the terms are dense, filled with legalese, and universally unread. But, despite being largely ignored by the public, these online contracts can have serious implications.

Featured Guest Blogger Sarah Hinchliff Pearson

Speaking from the Shadows: How the Internet Has Changed the Meaning of "Anonymous"

The First Amendment right to speak anonymously is well-established, and, at various times throughout American history, it has protected some of the most important speech in our political discourse. But anonymous speech also has a dark underbelly, which has been transformed and cultivated by the Internet. Courts attempt to balance these conflicting dynamics on a case-by-case basis and, not surprisingly, the result is inconsistency and uncertainty.

Featured Guest Blogger Sarah Hinchliff Pearson

Allowing the Presses to Roll: How the Second Circuit Expanded First Amendment Protections Despite Resistance from the Estate of J.D. Salinger

As most journalists probably know, Courts interpreting the First Amendment have always strongly resisted any “prior restraints” on speech because they suppress expression before a court can determine that the speech should indeed be denied First Amendment protection. In other words, our system says “we won’t prevent you from speaking, but we may punish you for it after the fact.” The breadth of protection goes rather far. Back in 1971, a federal judge deemed national security concerns to be insufficient to prevent publication of the Pentagon Papers, an internal defense department study of the Vietnam War that had been leaked to the New York Times.