By: Zack Valdman Freedom of speech, the lynchpin of American discourse, is seeing less and less support from Millennials. This worrisome trend arises from recent polls such as Pew Research in 2015, showing that 40% of millennials believe that the government should be able to prevent people from statements that are offensive to minority groups. To be clear, this column does not in any way support speech that is offensive to minorities; this type of speech is abhorrent and absolutely should not be tolerated by American society. However, there is a fine line between not tolerating speech from a cultural and societal perspective and believing that the government should be able to prosecute individuals who engage in such speech. The first amendment states:
“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.” As repugnant and repulsive as some speech is, the courts have interpreted the first amendment to protect all forms of speech that are not calls to violence, defamation, perjury, true threats, etc. Speech that is offensive, however, is not an exception to the first amendment. The Court has even interpreted burning the U.S. flag a form of symbolic speech protected by the first amendment. Burning the flag is an extremely controversial act and offensive to many, but the First Amendment of the Constitution protects it. The way the courts have interpreted the First Amendment, neither flag burners nor those who utter speech offensive to minorities can be prosecuted under the law. Now that is not to say there cannot be other ramifications for these individuals, as it is well within the law for employers to fire them and society to ostracize them. But this speech is considered protected by the Constitution of the United States, and the government should not be able to prevent people from uttering these statements by depriving them of life, liberty, or the pursuit of happiness in imprisonment. Exemplifying the dangers of a country without a First Amendment that protects freedom of speech is Poland. According to The Human Rights Watch, in January, the Polish government created a law that made it a crime punishable by up to three years in prison to claim that Poland was either responsible for or even participated in crimes committed by the Nazis during World War II. This law essentially criminalizes historical conversation, and rather than fostering a milieu that encourages debate on Poland’s role in the Holocaust, seeks to whitewash history. The law makes using the term “Polish death camp” illegal, and will enable the state body “tasked with establishing an official historical narrative and prosecuting Nazi and Communist-era crimes…to claim compensation from anyone “damaging the reputation” of Poland.” (Human Rights Watch). Under the guise that this term “falsifies Polish history” and “slanders” Poles, the government seeks to ban phrasing that makes it seem as though Poland was responsible for the Holocaust. While the camps were indeed set up and run by Germans on Polish soil, this law restricts freedom of speech and academic research, and serves to revise history by concealing Poland’s part in the Holocaust. Laws such as these only serve to exemplify the need for any country to protect freedom of speech, regardless of whether it is perceived as offensive by some or not. Without freedom of speech, any country’s government, even America, could pass the same draconian law. Sources: http://www.pewresearch.org/fact-tank/2015/11/20/40-of-millennials-ok-with-limiting-speech-offensive-to-minorities/ https://www.hrw.org/news/2018/02/10/polands-twisted-holocaust-law https://www.ft.com/content/ccaf3370-0da7-11e8-8eb7-42f857ea9f09 https://www.theatlantic.com/international/archive/2018/02/poland-holocaust-law/552842/
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By: Eleni Christofides This February marks the forty-second year that Black History Month has been recognized at a national level in the United States. In honor of the history, successes, and continuing fight for civil rights, this essay will examine a recent Supreme Court case: Shelby County v. Holder from 2013. The ruling in this case makes it especially important to remember that the goals and vision of the Civil Rights Movement did not end in the 1960s, and must continue to be supported legally if progress is to be maintained and expanded.
The Voting Rights Act of 1965, a critical piece of civil rights legislation, includes sections that aim to eliminate forms of discrimination which constitute voter suppression and disenfranchisement of minority groups in state elections. Section 4(b) of the Act defines the districts that can fall under the purview of the Act, and the Section 5 states that eligible districts are not allowed to change election laws without gaining authorization from the federal government, to ensure that the change does not have a discriminatory effect (2). Shelby County in Alabama, the petitioner in the case, filed a suit in the district court that argued Sections 4(b) and 5 of the Act were unconstitutional because they imposed a permanent restriction on the county. The district court and D.C. Circuit Court upheld the constitutionality of the statutes and Congress's rights to renew them (3). In the further appeal that would be Shelby County v. Holder, the Supreme Court would answer the following question: does the Voting Rights Act of 1965 continue to pass the standard of constitutionality, and does Congress have the authority under the 14th and 15th Amendments to renew Sections 4 and 5 of the Voting Rights Act? (3). The Court ruled partially in reverse, deciding that no, Section 4 of the Voting Rights Act is unconstitutional due to its unnecessary discriminate treatment of certain states and counties. Congress thus exceeds its powers granted by the 14th and 15th Amendments by renewing the statutes (2). The Court reasoned that states retain sovereignty under the Constitution and that sovereignty must be equal among all states; the Voting Rights Act violates that principle because it makes states apply for changes to election law, and thus the requirement will inherently affect certain states more than others. Thus it creates substantive standard differences between states for their burden of proof if sued, and slows their process of enacting election laws. Most importantly, the Court argued, the Act is no longer necessary because minority voting turnout in the targeted states has improved so that disparities no longer exist. Since the statute's enforcement should be justified by "current needs," and those needs no longer exist, the statute no longer meets the necessary criteria to be used and creates an undue burden for those eligible states (2). The Courts says Congress used old data in an attempt to justify the law, and this discriminates against states' abilities to regulate their own election laws. Unfortunately, the majority decision in this case fails to recognize the importance of the law for retention of progress. If indeed these voting rates have improved in targeted states, then unless it can be proven that there is another causal factor, it is likely that the Voting Rights Act had a significant role in this change. If that is the case, it makes the legislation far more important to keep, in order to prevent the loss of progress, and would constitute a justifiable burden for a legitimate congressional interest. The Roberts Court majority in this case conveniently focuses only on “current needs,” and seems to ignore the fact that minority voter suppression is a well-documented, continuing problem, even if it becomes less blatant than it has been in the past. Indeed, this ruling has led to aggressive laws that removed early voting and same-day registration policies—Golden Week in Ohio, for example—and purged voter registration rolls (1). By effectively making it more difficult to prove discrimination, this decision implies a declining dedication to protect the civil rights that were fought for so arduously. Civil rights legislation needs to remain on the books to provide constant protection, but its value is also symbolic: it acknowledges that the struggle is not over, that there are improvements to be made, and that the federal government is a willing partner in that fight. That, in particular, is what makes the attitude in Shelby so troubling. References: 1. Fuller, Jaime. “How has voting changed since Shelby County v. Holder?” July 7, 2014. https://www.washingtonpost.com/news/the-fix/wp/2014/07/07/how-has-voting-changed-since-shelby-county-v-holder/?utm_term=.bba1b72510b7 2. "Shelby County v. Holder." Justia, https://supreme.justia.com/cases/federal/us/570/12-96/#annotation 3. "Shelby County v. Holder." Oyez, www.oyez.org/cases/2012/12-96. By: Ben Lipkin Recently the American news cycle has been a steady stream of sexual assault allegations, from politicians such as Senator Al Franken to Hollywood celebrities such as Kevin Spacey it appears as though anyone could be a perpetrator. This sudden outburst forces the public to ask why. While possible answers like stigmas exist and may be part of the overall problem, one underlying legal loophole may be worsening the issue. Non-disclosure agreements (NDAs), which were intended to protect confidential business information, are being used to silence victims.
NDAs, or confidentiality agreements, are contracts between two parties wherein one or both participants agree not to disclose confidential information for a specific length of time or in perpetuity (Harroch, 2016). NDAs usually come in two forms: mutual NDAs are used when both parties share confidential information and non-mutual NDAs are used when only one side is divulging confidential information. These agreements usually describe both parties, the date information is being shared and when, if ever, the agreement expires (Harroch, 2016) Most information regarding research or company financial information can be covered in an NDA; however, not everything can. NDAs do not have infinite capabilities; for example, any information known to the public or information the receiver of information knew before the disclosure is not covered. One important caveat is that any information required to be disclosed to authorities is also not covered (IPR, 2015). For example, an NDA cannot cover criminal activities such as fraud. NDAs are also not valid if there is a lack of mutual assent to create the contract, if the contract was not thought to be legally binding, or the contract itself lacks definitiveness (Garfield, 1998). These cases are decided by courts; however, even with these exceptions, current law can cause serious problems. NDAs are not just used in a business setting; people in positions of high prestige and power utilize NDAs to protect their reputation. Celebrities may use NDAs to silence the details of their prenuptial agreements or their whereabouts; however, NDAs become problematic when they are used by people like Harvey Weinstein to silence victims of harassment (Greenfield, 2027). Contracts used to silence victims of harassment are generally done so under the guise of protecting reputation and personal information. An example of this type of agreement is a contracting stating: “’not disclos[e] to any person or entity any information … about any one at the firm’” (Greenfield, 2017). Although not explicitly stated, this type of agreement forces victims to keep silent about anything that could disparage anyone at the firm. Sexual harassment claims certainly harm the reputation of the accused and thus are prohibited under the agreement. The “me too” movement shows the effect of this very clearly. Arguably, American culture is such that victims are supported when they speak out, but don’t feel comfortable doing so; however, it is questionable whether NDAs can regulate these types of issues. According to the ACLU such agreements may fall under the “unconscionable” caveat wherein mutual assent could not have been possible. In cases with extreme power differentials, or coercion, contracts of this nature may not be viable. The ACLU furthers that such agreements may be contrary to the public good, presumably because perverse individuals would not be punished (Roth, 2018). One current law which could void NDAs in sexual harassment cases is the National Labor Relations Act (NLRA) which passed in 1935. Originally intended to allow workers to unionize, the NLRA has evolved over time. In the case of Phoenix Transit Sys. v. NLRB (2003) a United States Court of Appeals found that “an employer’s policy of requiring confidentiality in all sexual harassment investigations was overbroad and unlawfully interfered with the employees’ Section 7 rights (Klauser, Adam, et al, 2011). While there is still a dichotomy among the legal community as to how applicable the NLRA is in sexual harassment cases, it is still an important consideration. It is clear that the ambiguity of this law is not sufficient; however, our legislature is taking steps to correct this issue. Arizona Rep. Maria Syms (R-Paradise Valley) recently proposed House Bill 2020 which would directly address this issue. The bill reads A. A CONFIDENTIALITY AGREEMENT THAT RESTRICTS THE DISCLOSURE OF FACTUAL INFORMATION THAT IS RELATED TO A SEXUAL ASSAULT OR SEXUAL HARASSMENT, INCLUDING FACTUAL INFORMATION THAT IS RELATED TO AN ALLEGATION OF OR ATTEMPTED SEXUAL ASSAULT OR SEXUAL HARASSMENT, IS AGAINST THIS STATE'S PUBLIC SAFETY AND POLICY AND IS VOID AND UNENFORCEABLE. B. A PERSON MAY NOT ENTER INTO A CONFIDENTIALITY AGREEMENT THAT RESTRICTS THE DISCLOSURE OF FACTUAL INFORMATION THAT IS RELATED TO AN ALLEGATION OF OR ATTEMPTED SEXUAL ASSAULT OR SEXUAL HARASSMENT BY AN ELECTED OFFICIAL. C. THIS SECTION DOES NOT APPLY TO THE DISCLOSURE OF A MINOR CRIME VICTIM'S MEDICAL OR PERSONAL IDENTIFYING INFORMATION OR TO OTHER INFORMATION THAT IS SPECIFICALLY PROTECTED FROM DISCLOSURE BY LAW. (US Congress, 2017) This bill would retroactively invalidate all NDAs relating to sexual harassment and assault in Arizona; such a change, if enacted at the national level, would have unpredictable consequences. Although there are documented cases of NDAs being utilized in this way, the extent to which they are is unknown. NDAs are certainly an integral part of contractual law; they are universally recognized and breaking their terms can have severe consequences. These consequences, however, may be deterring victims of harassment from coming forward with their mistreatment. In current law NDAs may or may not be valid in these cases, and legislation is being proposed to bring much-needed clarity. Works Cited Garfield, Alan E. “PROMISES OF SILENCE: CONTRACT LAW AND FREEDOM OF SPEECH.” Cornell Law Review, vol. 83, no. 293, 1998. Greenfield, Rebecca. “How NDAs Maintain a Culture of Silence around Workplace Sexual Harassment.” The Independent, Independent Digital News and Media, 19 Oct. 2017, www.independent.co.uk/news/business/news/ndas-sexual-harassment-culture-silence-harvey-weinstein-non-disclosure-agreement-law-firm-a8008376.html. Harroch, Richard. “The Key Elements Of Non-Disclosure Agreements.” Forbes, Forbes Magazine, 10 Mar. 2016, www.forbes.com/sites/allbusiness/2016/03/10/the-key-elements-of-non-disclosure-agreements/#5c1b8015627d. Klauser, Adam, et al. The National Labor Relations Act Is Not Just for Unionized Employers Anymore. Cornell University School of Hotel Administration, 1 Nov. 2011, scholarship.sha.cornell.edu/cgi/viewcontent.cgi?article=1001&context=cihlerpubs. Non-Disclosure Agreement: a Business Tool. European Union, 2015, www.iprhelpdesk.eu/sites/default/files/newsdocuments/Fact-Sheet-Non-Disclosure-Agreement.pdf. Accessed 6 Feb. 2018. Roth, Emma J. “Is a Nondisclosure Agreement Silencing You From Sharing Your 'Me Too' Story? 4 Reasons It Might Be Illegal.” American Civil Liberties Union, American Civil Liberties Union, 24 Jan. 2018, www.aclu.org/blog/womens-rights/womens-rights-workplace/nondisclosure-agreement-silencing-you-sharing-your-me-too. United States, Congress, Confidentiality Agreements; Sexual Assault; Harassment . 2017. Maria Syms. |
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