Free Speech

News & Analysis as of

Lawyer Sues DDTC Over "Public Domain"

A New York City attorney is suing the U.S. State Department over a proposed change to the International Traffic in Arms Regulations (ITAR). The change pertains to how the regulations define “public domain,” and, if...more

National Labor Relations Board Continues to Limit Handbook Rules

The National Labor Relations Board has been increasingly active in reviewing rules for employee conduct described in personnel policy manuals and handbooks. The NLRB focuses on Section 7 of the National Labor Relations Act,...more

Digital Defamation Update: Recent Decisions Highlight Issues with Tweets, Hyperlinks

The rapid spread of social media sites has opened up unparalleled opportunities for voices that might have once gone unheard to resound across the world. While these channels can be undeniably advantageous in many contexts,...more

Take Your Damn Free Speech Elsewhere: T Public Property Not a Legal Public Forum

The MBTA, we learned this week, is reworking its already strict guidelines for advertising on T property. Metro Boston’s transit system wants to prohibit “ads concerning political issues or matters of public debate,”...more

Protestors at Your Door—First Amendment Law Insight

Protest politics appears to be reaching new heights not seen since the 1960s. Protests on Wall Street, at public universities and in private places have become a favored method for addressing social issues. At the Mall of...more

Florida “No Credit Card Surcharge” Law Unconstitutional, 11th Circuit Rules

A Florida law that prohibits merchants from imposing a surcharge on credit card purchases but allows a discount for cash purchases violates the First Amendment, a divided panel of the U.S. Court of Appeals for the 11th...more

Court Dismisses Police Officers’ Class Action Complaint Regarding Anti-Tattoo Policy

In a recent order in Medici, et al. v. City of Chicago, Case No. 15 C 5891, 2015 WL 6501153 (N.D. Ill. Oct. 27, 2015), Judge Charles P. Kocoras of the U.S. District Court for the Northern District of Illinois dismissed a...more


In appealing the cancellation of six trademarks, the Washington Redskins filed their opening brief in the Fourth Circuit this week. Cancellation of the team’s REDSKINS trademarks was upheld by a federal district court in...more

Dislike Employees’ Facebook “Likes”? Fire Away at Your Own Risk

On October 21, 2015, the Second Circuit Court of Appeals upheld the ruling of the National Labor Relations Board (“Board”) decision in Triple Play Sports Bar and Grill, 361 NLRB No. 31 (2014). The employer, Triple Play, had...more

Employment Matters Newsletter, Fall 2015

With Experimental Benefits Come Additional Legal Considerations - Corporate experimentation, combined with innovative employment practices designed to promote more flexible work environments, may be transformative. These...more

Like It Or Not, Your Employees Can Like It

It gets boring to blog just about the NLRB. We need some judicial action to get the juices flowing a little more. We got a little something last week. Question: Is merely clicking the “like” button on Facebook tantamount to...more

Second Circuit Upholds New York Ban on Credit Card Surcharges

Why it matters - New York’s ban on credit card sales transactions surcharges was upheld by the Second Circuit Court of Appeals, reversing a federal court judge’s 2013 ruling striking down the law and joining the majority...more

First Amendment Notes: Amicus Briefs In Pacira & Application of IMS v. Sorrell

Here we discuss a couple of developments involving (actually or potentially) the application of the First Amendment to the FDA’s increasingly battered prohibition against truthful promotion of off-label use....more

Entertainment and Media Litigation Update - October 2015

The "Dancing Baby" Case—Ninth Circuit Rules That "Fair Use" Must First Be Considered Before Sending Takedown Notices Under the DMCA - Why it matters: On September 14, 2015, the Ninth Circuit ruled in Lenz v. Universal...more

Second Circuit Rejects Constitutional Challenge to New York “No Credit Card Surcharge” Law

A New York state law that prohibits merchants from imposing a surcharge on credit card purchases does not violate the First Amendment or the Due Process Clause, the U.S. Court of Appeals for the Second Circuit recently ruled....more

Connecticut’s Highest Court Expands Whistleblower Protections for Employees

What you need to know: Last Monday, the Connecticut Supreme Court ruled in Trusz v. UBS Realty Investors that private sector employees who make whistleblower statements pursuant to their official job duties are protected...more

Connecticut Supreme Court Expands Protection for Would-Be Whistleblowers

Connecticut whistleblowers were handed a siren to sound the alarm on employers this week. In interpreting the state constitution in Trusz v. UBS Realty Investors, LLC, SC 19323 (Conn. Sup. Ct., official release Oct. 13,...more

Despite Ruling, Free Speech Statute Continues To Offers Some Defenses

In two prior posts this week I talked about the significance of a new Connecticut Supreme Court case that has expanded the free speech rights of employees in the workplace. But do employers have any other defenses to...more

Connecticut Bolsters Employee Whistleblower Protection

Based on a new and unique interpretation of the state constitution, the Connecticut Supreme Court has greatly increased the potential exposure of employers to damage claims by whistleblowers. In Trusz v. UBS Realty Investors...more

Expanding Employee Free Speech Rights: How Bad Is the Court’s Decision for Employers?

In yesterday’s post, I alerted you to a new Connecticut Supreme Court decision (Trusz v. UBS Realty Investors, LLC) that expanded employee free speech rights under the Connecticut Constitution. But I wanted some time to...more

Questions Remain About Social Media Privacy Rights During Workplace Investigations

Employees’ social media activities often play a key role in workplace investigations. For example, an employee may complain that a coworker sent a harassing Facebook message or posted something offensive on Twitter...more

Southern District of New York Finds Amarin Pharma, Inc.’s Off-Label Promotion Is Protected Speech; Company Cannot Be Prosecuted...

Pharmaceutical industry and constitutional buffs have been closely watching Amarin Pharma Inc. v. U.S. Food and Drug Administration. The case presented the (not wholly novel) question whether the First Amendment protects...more

EEOC Sues Peoria Dealership Green Chevrolet for Disability Discrimination and Retaliation

Service Manager Was Subjected to Involuntary Transfer Due to Kidney Failure, Then Fired When He Resisted, Federal Agency Charges - CHICAGO - Green Chevrolet, an auto dealership in Peoria, Ill., violated federal law by...more

Of Slants, Skins and Signs: The Coming First Amendment Showdown

Are we heading for a constitutional showdown over Section 2(a) of the Lanham Act? Will the Supreme Court strike down this prohibition on disparaging marks as an abridgement of First Amendment rights? It is certainly...more

It’s Déjà Vu All Over Again: FDA Sued Again in Off-Label Promotion Case

To quote the late Yogi Berra, it must feel like déjà vu all over again for the Food and Drug Administration (FDA) (or, if you prefer, Crosby, Stills, Nash & Young’s song, “Déjà Vu” (“We have all been here before”)). Fresh off...more

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