A DISCUSSION OF LAW AND JOURNALISM

Archive for October, 2011

Could An Injured NYPD Officer Sue A Wall Street Protester?

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By Asher Hawkins

Love ‘em or hate ‘em, the Occupy Wall Street protests continue to be a source of interesting legal brainteasers. Here’s the latest example:

Ed Mullins, head of the union representing the New York City Police Department’s sergeants, has promised he will see to it that any protester (he prefers the term “professional agitator”) who engages in conduct that causes injury to any of his union’s members will face a lawsuit.

Can a police officer really file a civil suit for injuries sustained in the line of duty? The various news articles that reported on Mr. Mullins’ comments (this is the one from The Wall Street Journal) didn’t answer that question, so we decided to tackle it. (more…)

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A Guilty Conscience?

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By Drew Carroll and Halina Schiffman-Shilo

On June 24, the Empire State Building was lit up by the rainbow colors of gay pride in celebration of the passage of the Marriage Equality Act, which legalizes same-sex marriage in New York. Many lauded the bill’s passage. Somewhere in a small town in upstate New York, Rose Marie Belforti, for one, was less thrilled.

For 10 years, Ms. Belforti has served as the town clerk in Ledyard, a small farming community near Syracuse. A farmer, cheese maker, and mother of four, Ms. Belforti is now at the center of a fierce debate over whether religious beliefs can exempt public officials from performing mandated duties. A devout Christian, Ms. Belforti condemns homosexuality.  Though part of her job is to issue marriage licenses, when a gay couple showed up a few weeks after the Marriage Equality Act took effect in July, she refused to issue one. The couple should come back when her deputy was there, she told them, and ask the deputy to issue the license.

Represented by People for the American Way and the New York firm Proskauer Rose, the couple has threatened to sue, maintaining that the new law requires government employees to issue same-sex marriage licenses. Resign or give us a license, is their message to Ms. Belforti. And New York Governor Andrew Cuomo seems to be on their side.  After the Act passed, Governor Cuomo stated, “The law is the law. When you enforce the laws of the state, you don’t get to pick and choose.” In addition, the Department of Health sent a memorandum to every town clerk in New York indicating that refusal to issue marriage licenses to gay couples would be a misdemeanor offense.

Ms. Belforti, in turn, has a message for the Governor and the gay couple: “This is about my religious freedom.”

They each have a point.

The First Amendment protects everyone’s right to practice her religion, and Ms. Belforti clearly feels that her right to practice is being compromised. But here’s the problem: Ms. Belforti is an elected public official. Can she refuse to perform her duties if they conflict with a personal belief? The media ask the question but haven’t come to any clear conclusion. As we’ve said, no lawsuits have been filed yet, but LASIS analyzes the chances of Ms. Belforti saving her job if they were.   (more…)

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Cheerleaders, Pink Tees, and Free Speech

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By Leah Braukman

Ah, October! Cooler weather, golden and scarlet-hued leaves, pumpkin flavored everything and Halloween. And – - the color pink. October is widely known as Breast Cancer Awareness Month and pink is its signature shade.

Yes, in October, Panera Bread bakery-cafes sell a “pink ribbon bagel” and the National Football League has professional ball players donning pink uniforms.  And then there are the events: walks, galas, dinners. There don’t seem to be enough days in the month to make time for all the breast cancer fundraising events. Just last week, Bloomingdales and Saks Fifth Avenue each sponsored its own star-studded dinner for breast cancer research. On the very same evening.

Add to the list of those rallying for the cause, cheerleaders at Gilbert High School in Gilbert, Arizona.

These enterprising young ladies, in an effort to raise money for breast cancer research, had pretty-in-pink t-shirts made with the catchy slogan “Feel for Lumps, Save Your Bumps.” The t-shirts were going to be worn while cheering and while collecting donations at school football games, until the school’s principal found out about the plan. He deemed the shirts inappropriate and banned the cheerleaders from wearing them.

Combine nubile young teenage girls with a fuddy-duddy of a principal possibly encroaching on both free speech and charitable giving, and all the ingredients were there for the story to quickly garner national attention. But the press accounts didn’t do the legal analysis, balancing public school students’ First Amendment rights to freedom of expression against a public school’s right to censor particular types of speech.

We did, and here’s our verdict: If the students sued, they’d likely be allowed to wear these shirts. Here’s why.   (more…)

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You’ve Got Great Experience, Sir, But You’re Too Old

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By Jaclyn Tyndorf

In these turbulent economic times, securing employment can be a steep and uphill battle for job hunters, who are up against scores of others all vying for the same position. Common sense dictates that candidates with the most amount of relevant experience should be at the top of the list. And as federal law dictates, race, gender and age should be of no consideration at all for jobs in which race, gender and age don’t matter.

But sometimes, of course, these considerations do come into play.  A man isn’t going to get a modeling job to frolic on a beach in a bikini for the 2012 edition of the Sports Illustrated Swimsuit Issue. A white woman won’t likely be hired to serve as president of an Association for Asian-American males…And then there’s age.  If the applicant for a job has great experience but the job involves manual labor, can age be taken into consideration?

Consider the case of two male electricians, both experienced in their trade. Upon applying for a “journeyman lineman” position their union and before meeting their would-be employer, they were both told, off the bat, that they were just too darn old.

A collective bargaining agreement requires Western Energy Services of Durango, Inc. (WESODI) to follow a union referral process for hiring. In August 2009, when the telecommunications and power line construction company had an available lineman position, it contacted a local union for the name of the next available member with the required skill sets. Eric Camron, then 72, was next in line.

After being told by his union about the job, Mr. Camron went to his local union office where a WESODI employee asked to speak to him on the phone. Mr. Camron was told that the job was “go, go go”, and that he would have difficulty keeping pace with the younger workers. WESODI hired a 24 year-old with less experience, instead.

One month later, the same thing happened to Dennis Thomas, then, 61, and for the same reason. A 28 year-old was hired for that position, again with less experience.

Messrs. Camron and Dennis are suing in New Mexico federal court. The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws making it illegal to discriminate against an employee or job applicant on grounds including age, and it is representing the two electricians.

The men want WESODI to stop discriminatory employment practices and to reward them back pay and money damages. While The Durango Herald discussed the men’s lawsuit, the paper didn’t discuss the requirements of proving a case of age discrimination, and whether our electricians will be able to meet these requirements. LASIS will.   (more…)

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A Law Student Discusses Occupy Wall Street (with VIDEO)

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Photo by Meghan Lalonde

By Meghan Lalonde

When the protests in lower Manhattan started in September most New Yorkers walked by and thought… well, most New Yorkers thought nothing about it at all, actually. Protests are a dime a dozen here. Then there were the first trickles of media coverage before the pepper spray incident, which was the NYPD’s greatest gift to the occupiers. It changed a local movement into a worldwide one as video of the incident was seen around the world.

And now, on Day 39 of the protest, hardly anyone is ignoring the protestors.   Not even me – an overworked and sleep-deprived law student.

New York Law School is just a few blocks north of Zuccotti Park where the occupation is headquartered and I frequently pass it on my bike on my way to and from school. Protesters have overrun the space with sleeping bags, signs, tables, pets, in addition to reporters and cameramen from every major news outlet under the sun. Last week the New York Times published an article discussing the nature of the park itself and how protesters are able to legally occupy the privately owned public space. I wondered if the protesters were following the legal debate about their rights to protest inside the park and on Saturday October 15, I packed my camera, got on my bike and rode over to the encampment between Broadway and Trinity Place to find out.

See VIDEO of reporter Meghan Lalonde interviewing protesters about the private v. public legal debate.   (more…)

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