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SEKULOW: FCC backpedals on wrongheaded newsroom-monitoring plan

Washington Times story:

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Hooray for our glorious state-run media!

Behold the Obama administration's creepy plan to put FCC monitors in America's newsrooms
By Robert Laurie (Bio and Archives)  Thursday, February 20, 2014
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(Slip Opinion) OCTOBER TERM, 2014

NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.

S. 321, 337.
No. 13–502. Argued January 12, 2015—Decided June 18, 2015

Gilbert, Arizona (Town), has a comprehensive code (Sign Code or Code) that prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including three relevant here. “Ideological Signs,” defined as signs “communicating a message or ideas” thatdo not fit in any other Sign Code category, may be up to 20 squarefeet and have no placement or time restrictions. “Political Signs,” defined as signs “designed to influence the outcome of an election,” may be up to 32 square feet and may only be displayed during an election season. “Temporary Directional Signs,” defined as signs directing thepublic to a church or other “qualifying event,” have even greater restrictions: No more than four of the signs, limited to six square feet,may be on a single property at any time, and signs may be displayedno more than 12 hours before the “qualifying event” and 1 hour after.Petitioners, Good News Community Church (Church) and its pastor, Clyde Reed, whose Sunday church services are held at various temporary locations in and near the Town, posted signs early each Saturday bearing the Church name and the time and location of the next service and did not remove the signs until around midday Sunday. The Church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an eventdate on the signs. Unable to reach an accommodation with the Town, petitioners filed suit, claiming that the Code abridged their freedom of speech. The District Court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed, ultimately concluding that the Code’s sign categories were content neutral, and that the Code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech.

Held: The Sign Code’s provisions are content-based regulations of


speech that do not survive strict scrutiny. Pp. 6–17.

Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may bejustified only if the government proves that they are narrowly tailored to serve compelling state interests. E.g., R. A. V. v. St. Paul, 505 U. S. 377, 395. Speech regulation is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc., 564 U. S. ___, ___–___. And courts are required to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. Id., at ___. Whether laws define regulated speech by particular subject matter or by its function or purpose, they are subject to strict scrutiny. The same is true for laws that, though facially content neutral, cannot be “ ‘justified without reference to the content of the regulated speech,’ ” or were adopted by the government “becauseof disagreement with the message” conveyed. Ward v. Rock Against Racism, 491 U. S. 781, 791. Pp. 6–7.

The Sign Code is content based on its face. It defines the categories of temporary, political, and ideological signs on the basis oftheir messages and then subjects each category to different restrictions. The restrictions applied thus depend entirely on the sign’scommunicative content. Because the Code, on its face, is a content-based regulation of speech, there is no need to consider the government’s justifications or purposes for enacting the Code to determinewhether it is subject to strict scrutiny. Pp. 7.

None of the Ninth Circuit’s theories for its contrary holding ispersuasive. Its conclusion that the Town’s regulation was not basedon a disagreement with the message conveyed skips the crucial first step in the content-neutrality analysis: determining whether the lawis content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideascontained” in the regulated speech. Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 429. Thus, an innocuous justification cannottransform a facially content-based law into one that is content neutral. A court must evaluate each question—whether a law is content based on its face and whether the purpose and justification for thelaw are content based—before concluding that a law is content neutral. Ward does not require otherwise, for its framework applies only to a content-neutral statute.

The Ninth Circuit’s conclusion that the Sign Code does not single out any idea or viewpoint for discrimination conflates two distinct butrelated limitations that the First Amendment places on governmentregulation of speech. Government discrimination among viewpoints

Cite as: 576 U. S. ____ (2015) 3

is a “more blatant” and “egregious form of content discrimination,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829, but “[t]he First Amendment’s hostility to content-based regulation [also] extends . . . to prohibition of public discussion of an entire topic,” Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 537. The Sign Code, a paradigmatic example of content-based discrimination, singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter.

The Ninth Circuit also erred in concluding that the Sign Code wasnot content based because it made only speaker-based and event-based distinctions. The Code’s categories are not speaker-based—therestrictions for political, ideological, and temporary event signs applyequally no matter who sponsors them. And even if the sign categories were speaker based, that would not automatically render the lawcontent neutral. Rather, “laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference.” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 658. This same analysis applies to event-based distinctions. Pp. 8–14.


The Sign Code’s content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end. See Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___. Assuming that the Town has a compelling interest in preserving its aesthetic appeal and traffic safety, the Code’s distinctions are highly underinclusive. The Town cannot claim that placing strict limits on temporary directionalsigns is necessary to beautify the Town when other types of signs create the same problem. See Discovery Network, supra, at 425. Nor has it shown that temporary directional signs pose a greater threat topublic safety than ideological or political signs. Pp. 14–15.


This decision will not prevent governments from enacting effective sign laws. The Town has ample content-neutral options available to resolve problems with safety and aesthetics, including regulating size, building materials, lighting, moving parts, and portability.And the Town may be able to forbid postings on public property, so long as it does so in an evenhanded, content-neutral manner. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466
S. 789, 817. An ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—e.g.,warning signs marking hazards on private property or signs directing traffic—might also survive strict scrutiny. Pp. 16–17.

707 F. 3d 1057, reversed and remanded.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY and SOTOMAYOR, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. KAGAN, J., filed an opinion concurring in the judgment, in which GINSBURG and BREYER, JJ., joined

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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is:

No. 2013-885
Argued: October15, 2014
Opinion Issued: June 9, 2015

Gallagher, Callahan & Gartrell, P.C., of Concord (Charles P. Bauer and Robert J. Dietel on the brief, and Mr. Bauer orally), for the petitioner.
Backus, Meyer & Branch, LLP, of Manchester (Jon Meyer on the brief and orally), for respondents James Cleaveland, Garrett Ean, Kate Ager, Ian Bernard a/k/a Ian Freeman, and Graham Colson.
Respondent Pete Eyre, for himself, filed no brief.
Nixon Peabody LLP, of Manchester (Anthony J. Galdieri on the brief), and New Hampshire Civil Liberties Union, of Concord (Gilles R. Bissonnette on the brief), for New Hampshire Civil Liberties Union, as amicus curiae.

New Hampshire Municipal Association, of Concord (Stephen C. Buckley, on the brief and orally) as amicus curiae.

BASSETT, J. The petitioner, the City of Keene, appeals an order of the Superior Court (Kissinger, J.) dismissing its claims of tortious interference with contractual relations, negligence, and civil conspiracy, and denying its request for preliminary and permanent injunctive relief. The City filed suit against the respondents, James Cleaveland, Garrett Ean, Kate Ager, Ian Bernard a/k/a Ian Freeman, Graham Colson, and Pete Eyre, because they followed closely behind the City’s parking enforcement officers (PEOs) on their daily patrols through downtown Keene, videotaping them, criticizing their work, and putting money into expired parking meters before a parking ticket was issued. After an evidentiary hearing, the trial court dismissed the action, ruling that the City’s claims were barred by the First Amendment to the United States Constitution. U.S. CONST. amend. I. The trial court also denied the City’s petition for preliminary and permanent injunctive relief. We affirm in part, vacate in part, and remand.

The following facts are drawn from the City’s pleadings, or were adduced at the evidentiary hearing. The City employs PEOs to enforce motor vehicle parking laws and regulations in Keene. The PEOs patrol downtown Keene on foot and in marked vehicles, monitoring parking meters and issuing parking tickets. In December 2012, the respondents began protesting parking enforcement in Keene. On an almost daily basis, the respondents followed closely behind the PEOs, identifying expired parking meters and filling the meter before a PEO could issue a ticket, a process referred to by the respondents as a “save.” When the respondents “save” a vehicle, they leave a card on the vehicle’s windshield that reads: “Your meter expired! However, we saved you from the king’s tariff!” The respondents also: videotaped the PEOs from a close proximity; called the PEOs names such as “f*****g thief,” “coward,” “racist,” and “b***h”; criticized the PEOs for issuing tickets; encouraged the PEOs to quit their jobs; and waited for the PEOs during their breaks, including waiting outside restrooms. The respondents testified that they engage in these activities to protest parking enforcement because they believe that parking is not a criminal act, and that parking tickets are a “threat against [the] people.” The PEOs testified that they repeatedly asked the respondents to stop their activities, complained to the Keene police department, and reported the respondents’ activities to the city attorney.
In 2013, the City petitioned for preliminary and permanent injunctive relief, alleging tortious interference with contractual relations and civil

conspiracy to commit tortious interference.1 The City asserted that the respondents, acting individually and in concert, tortiously interfered with the City’s contractual relations with the PEOs by engaging in persistent and ongoing efforts to prevent them from performing their official duties, thus creating a hostile work environment for the PEOs. The City sought to enjoin the “Respondents, or anyone under their direction, supervision, employment, or control” from “coming within,” “video recording,” or “communicating with any PEO” within “a safety zone of fifty (50) feet of any PEO while that PEO is on duty performing his or her employment duties as required by the City of Keene.” The City did not seek to prevent the respondents from filling meters. The petition contained the following statement:

[The City] does not seek an Order to prevent Respondents from exercising their constitutional rights to video record the PEOs from a comfortable remove or otherwise to express their opinion; rather, [the City] seeks only to prevent Respondents from taunting, interfering with, harassing, and intimidating the PEOs by establishing a safety zone between the PEOs and [the] Respondents while the PEOs are performing their duties.
The respondents filed a motion to dismiss, arguing that the City’s petition failed to state a claim for tortious interference, and that the claim violated their right to free speech under the First Amendment of the Federal Constitution and Part I, Article 22 of the New Hampshire Constitution, as well as their right to government accountability under Part I, Article 8 of the New Hampshire Constitution. See U.S. CONST. amend. I; N.H. CONST. pt. I, arts. 8, 22.

Shortly thereafter, the City filed a separate civil complaint against the respondents, requesting a jury trial and seeking money damages for injuries sustained by the City because of the respondents’ tortious interference with contractual relations and negligence. These claims were based upon the same factual allegations as those set forth in the City’s petition for injunctive relief.

The trial court held a three-day evidentiary hearing and heard legal argument on both the City’s petition for preliminary injunctive relief and the respondents’ motion to dismiss. The PEOs testified that the close proximity of the respondents — sometimes only a foot away from them — caused the PEOs anxiety and made them feel harassed. One PEO testified that he was

1 The City’s original petition for injunctive relief, filed in May 2013, alleged only tortious interference with contractual relations. In July 2013, the City filed a motion to amend its petition to add a claim of civil conspiracy. It appears that the trial court had not ruled on the City’s motion to amend at the time of the evidentiary hearing. However, because the trial court order identifies civil conspiracy as one of the claims filed against the respondents, we construe the order as having implicitly granted the City’s motion to amend and briefly address this claim in this opinion.

sometimes followed on his patrols by two or three of the respondents at the same time, and that they followed him so closely that if he turned around, they would bump into him. He ultimately resigned because “the constant harassment and intimidation [had] started to boil over into [his] personal life and [his] time off,” and he felt he was “backed into a corner.” Another PEO testified that she is “tense and uptight all the time” because of the “awful anticipation” of “waiting for [the respondents] to show up,” and claimed that she is unable to do her job because she is “trying to avoid [the respondents].” A third, who complained that the respondents waited outside her car and followed her in and out of city buildings on her breaks, testified that she does not feel safe when the respondents follow her at work. She also testified that, on one occasion, one of the respondents grabbed her wrist when she attempted to remove one of the respondents’ cards from a car windshield. She has changed her work schedule to avoid the respondents, and has considered quitting her job. The City also offered testimony about the risk to public safety: specifically, that the respondents distract the PEOs as they drive on city streets, and that the respondents “dart[ ] across” the street, which the City asserted could result in pedestrian injuries or vehicle collisions.

Several of the respondents testified as well. Cleaveland stated that an injunction requiring the respondents to stay away from the PEOs would be a “considerable infringement” on the respondents’ ability to get their message to the public, and might create an antagonistic environment by requiring the respondents to raise their voices to be heard. The respondents also asserted that distances between five and fifteen feet away from the PEOs were “ideal” for their activities, and that videotaping required closer proximity to the PEOs than filling meters.

During the course of the hearing, the City narrowed its request for injunctive relief. First, rather than seeking the originally requested injunction that would bar the respondents “from coming within” 50 feet of any on-duty PEO, it modified its request, asking that the respondents be prohibited from engaging in “touching, taunting, obstructing, detaining, hindering, impeding, blocking, [and] intimidating or harassing” conduct within a 30-foot “safety zone” around the PEOs. The City explained that it was not seeking to enjoin the respondents from merely “being within the proximity of the officers”; rather, it was seeking to prohibit the respondents from being “in their proximity and engag[ing] in the behavior” alleged. (Emphasis added.) Next, at the close of the hearing, the City again narrowed its requested relief, asking the trial court to order a “safety zone” around an on-duty PEO of 15 feet — approximately the distance between two parking meters — or “any other reasonable injunction that the Court deems appropriate.” The City emphasized that it did not seek to restrict the content of the respondents’ speech, and acknowledged to the trial court that they had constitutionally protected rights to “videotape,” “have discourse,” and “get their message out” as long as they did so from “a reasonable distance back.” See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir.

2011) (“The filming of government officials engaged in their duties in a public place . . . fits comfortably within [First Amendment] principles.”). The City sought to restrict only those aspects of the respondents’ conduct that were interfering with the PEOs’ ability to perform their jobs.

The trial court granted the respondents’ motion to dismiss. After expressing skepticism as to the viability of the City’s tortious interference claim under these circumstances, the trial court concluded that it “need not reach this issue as the enforcement of [the tortious interference claim] is an infringement [up]on the Respondents’ right to free speech and expression under the First Amendment of the Federal Constitution.”
Relying upon Snyder v. Phelps, 131 S. Ct. 1207, 1215-19 (2011), the trial court analyzed the respondents’ actions and concluded that their speech and expressive activities involved a matter of public concern and occurred in a traditional public forum — the streets and sidewalks of Keene — and, therefore, were “entitled to special protection” under the First Amendment. Snyder, 131 S. Ct. at 1219. The trial court explained that the First Amendment protects “sharing common views,” “peaceful pamphleteering,” and the videotaping of government officials, and noted that “[m]erely because many people disagree with the Respondents as to the role of parking enforcement in Keene does not subject their speech and expressive conduct to lesser protections.” The trial court observed that, although the City could lawfully impose reasonable time, place, and manner restrictions on the respondents’ activities, imposing liability for tortious interference would:

unreasonably prevent the Respondents[ ] from exercising their right to free speech. . . . [W]hether a tortious interference claim exists depends on whether a jury finds the Respondents’ conduct “improper.” Such a subjective standard creates an unreasonable risk that the jury will find liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.
(Quotations and citations omitted.) The court also denied the City’s request for injunctive relief, reasoning that neither a temporary nor permanent injunction was warranted “[g]iven the dismissal of the tortious interference claim.” This appeal followed.


The City first argues that the trial court erred when it dismissed the City’s tortious interference, civil conspiracy, and negligence claims. Although the City acknowledges on appeal that the content of the respondents’ speech is constitutionally protected, and that the respondents have a constitutionally protected right to videotape the PEOs, it argues that the respondents’ actions

— “following closely, chasing, running after, approaching quickly from behind, lurking outside bathrooms, yelling loudly, and filming from close proximity” — constitute “improper” interference with the PEOs’ employment duties. The City contends that this conduct is “significantly harassing behavior under the guise of political expression,” and, therefore, not constitutionally protected. The City asserts, therefore, that a jury may impose tort liability without unconstitutionally burdening the respondents’ right to free speech. The respondents counter that the trial court correctly ruled that it would violate the First Amendment to allow the City’s civil claims to proceed to a jury. These arguments present a question of constitutional law; therefore, we review the trial court’s analysis de novo. State v. Bailey, 166 N.H. 537, 540 (2014). Although we normally address constitutional questions first under the State Constitution and rely on federal law only to aid in our analysis, see State v. Ball, 124 N.H. 226, 231-33 (1983), because the trial court ruled that the respondents’ activities were protected under the Federal Constitution and did not address the respondents’ arguments under the State Constitution, we first address the parties’ arguments under the Federal Constitution.

To establish liability for tortious interference with contractual relations, a plaintiff must show that: “(1) the plaintiff had an economic relationship with a third party; (2) the defendant knew of this relationship; (3) the defendant intentionally and improperly interfered with this relationship; and (4) the plaintiff was damaged by such interference.” Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 40-41 (2005) (emphases omitted). Whether the alleged conduct is “improper” requires an “inquiry into the mental and moral character of the defendant’s conduct.” Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155, 159 (3d Cir. 1988) (quotation omitted). “Action is not improper when the interference in contractual relations fosters a social interest of greater public import than is the social interest invaded.” Id. (quotation omitted); see Restatement (Second) of Torts § 766 cmt. c at 10 (1965) (“The issue is whether in the given circumstances [the defendant’s] interest and the social interest in allowing the freedom claimed by him are sufficient to outweigh the harm that his conduct is designed to produce.”).

Initially, we note that we share the trial court’s skepticism as to whether a tortious interference claim can exist when private citizens engage in protest of the government. However, we need not decide whether a viable tortious interference claim can exist under the circumstances present in this case because we agree with the trial court that holding the respondents liable for tortious interference based upon their alleged activities would infringe upon the respondents’ right to free speech under the First Amendment.

“The Free Speech Clause of the First Amendment — ‘Congress shall make no law . . . abridging the freedom of speech’ — can serve as a defense in state tort suits . . . .” Snyder, 131 S. Ct. at 1215. “[S]peech constituting a state-law tort is not necessarily unprotected speech,” and, as the United States

Supreme Court has made clear, “states may not regulate speech merely because the speech is defined as a state-law tort.” Coplin v. Fairfield Public Access Television, 111 F.3d 1395, 1401 n.2 (8th Cir. 1997). That is why the First Amendment bars certain state tort claims. See Snyder, 131 S. Ct. at 1220 (holding that First Amendment bars claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy against non-violent funeral protestors).

Whether speech is constitutionally protected requires an analysis of whether the “speech is of public or private concern, as determined by all the circumstances of the case,” including whether the challenged activities take place in a traditional public forum. Id. at 1215. “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community . . . .” Id. at 1216. Speech on matters of public concern “is at the heart of the First Amendment’s protection.” Id. at 1215 (quotation omitted). “That is because speech concerning public affairs is more than self-expression; it is the essence of self-government.” Id. “Deciding whether speech is of public or private concern requires us to examine the content, form, and context of that speech, as revealed by the whole record.” Id. at 1216 (quotations omitted). “In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.” Id.

On appeal, the City does not challenge the trial court’s conclusions that the content of the respondents’ speech is protected by the First Amendment because it relates to a matter of public concern, and that the respondents’ activities take place in a traditional public forum — the sidewalks and streets of Keene. As the trial court observed, the respondents’ speech — criticizing the PEOs for enforcing parking regulations and questioning the City’s authority to regulate parking — plainly relates to issues of public concern because it involves challenging “the political authority of the City.” Although certain aspects of the respondents’ speech — such as referring to the PEOs in a derogatory fashion — may “fall short of refined social or political commentary, the issues they highlight . . . are matters of public import.” Id. at 1217. Indeed, the Supreme Court has concluded that the content of protected speech “cannot be restricted simply because it is upsetting or arouses contempt.” Id. at 1219.

The City nonetheless asserts that specific aspects of the respondents’ conduct — “following closely, chasing, running after, approaching quickly from behind, lurking outside bathrooms, yelling loudly, and filming from close proximity” — is not protected by the First Amendment. The City contends that this particular conduct — the lawfulness of which it continues to challenge, and which, for the purpose of clarity, we will refer to as the “challenged conduct” — has a tortious impact on the PEOs, and it would not violate the

First Amendment either for a jury to adjudicate the City’s claims, or for the trial court to potentially subject the respondents to tort liability for the challenged conduct. The respondents counter that “[e]ven those activities that did not involve speech [are] expressive conduct entitled to First Amendment protection,” and, therefore, are insulated from tort liability. They assert that, “absent acts of significant violence,” the First Amendment protects their non-verbal acts from tort liability. We agree with the respondents.

As the Supreme Court has observed, “the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916-17 (1982). For instance, the First Amendment protects the right of individuals to engage in public protest for the purpose of influencing societal or governmental change, even if that protest activity causes economic harm. See id. at 916; see also State of Mo. v. Nat. Organization for Women, 620 F.2d 1301, 1317 (8th Cir. 1980) (“[T]he right to petition is of such importance that it is not an improper interference even when exercised by way of a boycott.”). Further, “[w]hile the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity.” Claiborne Hardware Co., 458 U.S. at 918. The First Amendment is implicated because the mere threat of tort liability for engaging in protected activity may undermine “the free and robust debate of public issues,” and “pose the risk of a reaction of self-censorship on matters of public import.” Snyder, 131 S. Ct. at 1215-16 (quotations omitted); cf. Claiborne Hardware Co., 458 U.S. at 931-32 (“The rights of political association are fragile enough without adding the additional threat of destruction by lawsuit.” (quotation omitted)).

In Claiborne Hardware Co., a group of merchants sought damages in tort for malicious interference with their businesses — a tort analogous to the tortious interference claim made in this case — after civil rights activists organized a boycott of their businesses. Id. at 889-91. The protesters engaged in a pattern of “intimidation, threats, social ostracism, [and] vilification” of potential black customers to discourage them from patronizing the boycotted establishments. Id. at 894. Some of the protesters committed violent acts. Id. at 916. The Supreme Court concluded that the “use of speeches, marches, and threats of social ostracism cannot provide the basis for a damages award.” Id. at 933; see also Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (allowing organization to hand out leaflets about “practices [that] were offensive to them” because “so long as the means are peaceful, the communication need not meet standards of acceptability”). The Court further held that although violent conduct “is beyond the pale of constitutional protection,” because violence did not “color[ ] the entire collective effort,” the protesters’ non-violent activity was constitutionally protected and not subject to tort liability. Claiborne Hardware Co., 458 U.S. at 933.

Here, the challenged conduct, like the respondents’ protected speech, is intended to draw attention to the City’s parking enforcement operations and to persuade the PEOs to leave their positions. There is no allegation that the challenged conduct involves violent conduct. See id. at 918. Moreover, conduct “does not lose its protected character . . . simply because it may embarrass others or coerce them into action.” Id. at 910. We hold, therefore, that the First Amendment shields the respondents from tort liability for the challenged conduct. Id. at 933. Accordingly, we conclude that the trial court correctly determined that enforcing the City’s tortious interference with contractual relations claim would violate the respondents’ First Amendment rights. Given this conclusion, we need not reach the respondents’ argument that the tortious interference claim is also barred by the State Constitution.

Because we hold that the First Amendment bars the City from pursuing its claim for tortious interference with contractual relations, we also conclude that the First Amendment bars the City from pursuing its claim that the respondents are liable for conspiring to commit the very same tort. See Snyder, 131 S. Ct. at 1220.

The City also argues that the trial court erred when it dismissed the City’s negligence claim. However, the City has failed to develop this argument sufficiently for our review. See Auger v. Town of Strafford, 156 N.H. 64, 68 (2007). Therefore, we affirm the trial court’s dismissal of the City’s claims of tortious interference with contractual relations, civil conspiracy, and negligence.

The City next argues that the trial court erred when it denied the City’s request for preliminary and permanent injunctive relief. The City contends that the trial court erred when it failed to balance the City’s “significant governmental interests” — preserving public safety and providing a safe workplace for its employees — against the respondents’ right to free speech before it ruled on the City’s request for injunctive relief. The City further asserts that “[t]hese interests provide permissible grounds to grant an injunction,” and, therefore, notwithstanding the trial court’s dismissal of the tortious interference claim, the trial court should have issued an injunction because of the impact of the challenged conduct upon the City’s interests in preserving public safety and protecting the PEOs. The respondents counter that the trial court properly denied an injunction “[g]iven the dismissal of the tortious interference claim,” and that injunctive relief is not warranted because the City has not pleaded that the challenged conduct violates a city ordinance or any civil or criminal law. The respondents further contend that the requested injunctive relief would violate their First Amendment rights. The City responds that a municipal ordinance would “run a greater risk of chilling First Amendment rights than a narrowly tailored injunction targeting specific

misconduct by specific individuals.” The question before us, therefore, is whether the trial court erred when, solely because it had dismissed the underlying tortious interference claim, it denied the City’s request for injunctive relief without considering the particular circumstances of the case.

As a threshold matter, we address the respondents’ argument that the issue of whether the trial court erred when it denied the City’s request for injunctive relief was “not stated as a question presented in [the City’s] notice of appeal, and is accordingly improper pursuant to Rule 16(b) of this Court.” See Sup. Ct. R. 16(3)(b). Supreme Court Rule 16(3)(b) provides, in relevant part:

While the statement of a question [in a brief] need not be worded exactly as it was in the appeal document, the question presented shall be the same as the question previously set forth in the appeal document. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein.
Id. The City’s notice of appeal presented the question of “whether the [trial] court erred in failing to balance the public employees’ right to work without substantial interference, harassment, and intimidation against the private parties’ right[ ] to protest governmental operations[.]” We conclude that the question presented by the City in its notice of appeal fairly encompasses the injunction issue before us. See Axenics, Inc. v. Turner Constr. Co., 164 N.H. 659, 668 (2013).

“It is within the trial court’s sound discretion to grant an injunction after consideration of the facts and established principles of equity.” Town of Atkinson v. Malborn Realty Trust, 164 N.H. 62, 66 (2012). The decision to grant equitable relief “necessarily depends upon the factual circumstances in each case.” Exeter Realty Co. v. Buck, 104 N.H. 199, 200 (1962). “[B]ecause the division line between equity and law is not precise . . . courts have considerable discretion in determining whether equity should intervene to aid litigants in the protection of their legal rights.” Sands v. Stevens, 121 N.H. 1008, 1011 (1981) (quotation omitted). We will uphold the decision of the trial court with regard to the issuance of an injunction absent an error of law, an unsustainable exercise of discretion, or clearly erroneous findings of fact. Town of Atkinson, 164 N.H. at 66.
Here, the trial court did not consider the factual circumstances of the case prior to making its determination as to whether injunctive relief was warranted. Although the City expressly pleaded only two underlying claims in its petition for injunctive relief — tortious interference with contractual relations and civil conspiracy — the City also specifically alleged that: (1) the PEOs “felt intimidated and harassed and have been unable to perform their job duties”; (2) the respondents act “with the purpose and intention of preventing

the PEOs from doing their jobs”; (3) the respondents “frequently follow and surround individual PEOs in groups of one, two, or more, an inherently intimidating act;” (4) the respondents “place the PEOs and the public in danger, both by their distracting behavior and also as a result of their disregard for rules of the road”; and (5) the challenged conduct “agitates the public, often creating hostile exchanges between members of the public and [the] Respondents that place the PEOs, the public, and the Respondents in danger,” resulting, on one occasion, in a “physical altercation between Respondent Cleaveland and a member of the public.”

The City has consistently argued that, even if the tortious interference claim is dismissed, it is entitled to equitable relief based upon its “significant governmental interests” in “providing a safe workplace for its employees” and “preserving public safety and order.” The trial court disagreed, and denied the City’s request for injunctive relief “[g]iven the dismissal of the tortious interference claim.” We hold that the trial court erred when, solely because it had dismissed the underlying tortious interference claim, it denied injunctive relief without considering all the factual circumstances of the case.

Although the City’s petition could perhaps have been drafted with more precision, New Hampshire is a notice pleading jurisdiction, and, “[a]s such, we take a liberal approach to the technical requirements of pleadings.” Porter v. City of Manchester, 151 N.H. 30, 43 (2004) (quotation omitted). That the City did not set forth its factual allegations and legal theories as a separate count seeking injunctive relief is not fatal to its request; nor does it constrain the trial court in undertaking an inquiry as to whether the specific circumstances of the case warrant equitable relief. See 27A Am. Jur. 2d Equity § 2 (2008) (stating that court sitting in equity is “less hampered by technical difficulties” and “is not shackled by rigid rules of procedure”).

In light of the City’s allegations that the challenged conduct threatens the safety of the PEOs, pedestrians, and the motoring public, and given the testimony of the PEOs at the hearing, we hold that the trial court erred when it failed to consider the particular factual circumstances of the case and whether an injunction should issue based upon the governmental and policy interests asserted by the City. See Murray v. Lawson, 649 A.2d 1253, 1263 (N.J. 1994) (granting injunction “pursuant to the court’s authority to grant equitable relief to enforce a valid public policy of [the] State”); cf. RSA 642:1, I (2007) (making it unlawful to use “intimidation . . . or engage[ ] in any other unlawful conduct with a purpose to hinder or interfere with a public servant”). Accordingly, we vacate the trial court’s denial of the City’s request for injunctive relief, and remand for the trial court to address the issue of whether the governmental interests and factual circumstances asserted by the City in its petition are sufficient to warrant properly tailored injunctive relief.

“Even protected speech is not equally permissible in all places and at all times.” Snyder, 131 S. Ct. at 1218 (quotation and brackets omitted). The respondents’ choice of where and when to engage in the challenged conduct “is not beyond the Government’s regulatory reach — it is subject to reasonable time, place, or manner restrictions.” Id. (quotation omitted); see Bailey, 166 N.H. at 542 (observing that “[f]ederal precedent employs the same standard [as we employ under our constitution] to assess the constitutionality of restrictions on the time, place, and manner of expressive activities taking place in a public forum.” (quotation omitted). We note that content-neutral injunctions that restrict speech or expressive activities must “burden no more speech than necessary to serve a significant government interest” to survive a First Amendment challenge. Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 765 (1994). We express no opinion as to whether the City’s allegations, if proven, are sufficient to warrant the trial court’s exercise of its equitable power, or as to whether the particular injunctive relief requested by the City would violate the Federal or State Constitutions. Those are issues for the trial court to address in the first instance.
Affirmed in part; vacated
in part; and remanded.

DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred
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Friday, 22 January 2016
Clinton Calls for Constitutional Amendment to Reverse Citizens United and “Reclaim Democracy” 
Written by  Warren Mass

SOURCE: The New American

In a commentary posted by CNN on January 21, former Secretary of State and presidential candidate Hillary Clinton called for Americans to “reclaim our democracy, reform our distorted campaign finance system and restore access to the ballot box in all 50 states.”
In her highly partisan opinion piece, Clinton proposed that the path to “reclaim[ing] our democracy” starts with reversing the Supreme Court’s 2010 Citizens United decision, which prohibited the federal government from restricting independent political expenditures by nonprofit corporations.
Clinton has a personal reason for ruing that decision because Citizens United, the conservative non-profit that was the plaintiff in the case (Citizens United v. Federal Election Commission), had been banned by the U.S. District Court for the District of Columbia from advertising the film Hillary: The Movie (which was critical of Clinton). The district court had claimed that Citizens United’s actions were in violation of the 2002 Bipartisan Campaign Reform Act (BCRA, the McCain–Feingold Act) that defined any broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, as an “electioneering communication.”
Citizens United appealed the decision and the Supreme Court reversed it — striking down those provisions of BCRA that prohibited corporations (including nonprofit corporations) and unions from making independent expenditures and “electioneering communications.”
The decision has evidently bothered Clinton all this time, since in her article she wrote: “Six years ago Thursday, the Supreme Court’s decision in Citizens United transformed our politics by allowing corporations to spend unlimited amounts of money to influence elections.” 

{TRANSLATION & Barack kicked my ass when I was the annointed one}
Using faulty logic (post hoc, ergo propter hoc) Clinton asserted that the Republican Party’s capture of “both the governor’s mansion and the state legislature in 36 states — the most since the 1950s” was a direct consequence of Citizens United.
In writing the majority opinion for Citizens United, Justice Anthony Kennedy noted: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Clinton, however, evidently believes that associations of citizens that engage in political speech that threatens Democrats in elections should be fined or jailed.
Clinton’s article included a link to her “comprehensive plan” for changing campaign finance regulations. Key parts of her plan, should she be elected president, include appointing Supreme Court justices who will reverse Citizens United and “and other wrongheaded campaign finance court decisions.”
She furthermore advocates amending the Constitution to allow “Americans” (that is, the federal government) to impose “common sense rules to protect against the undue influence of billionaires and special interests and to restore the role of average voters in elections.”
Clinton also proposes providing matching funds for small donors, the cumulative effect of which might make the federal government — the taxpayers — the largest campaign donor of all.  
Another part of Clinton’s opinion piece, under the subhead “Make it easier to vote,” proposed eliminating common-sense procedures put in place by the states to ensure that everyone who casts a vote is qualified to do so. Among the more troublesome proposals Clinton advocates is: “All Americans should be automatically registered to vote on their 18th birthdays, unless they opt out.” 

{TRANSLATION: Clinton wants the case to be called NON-CITIZENS UNITED so all of her Criminal Alien non-citizen & free riding Welfare loafers, Baby momma's and their baby Daddy's, pimps, drug addict, dope pushers and the loser class can Vote for her and more free shit in perpetuity}
The most obvious downfall of such a system is that it does not provide for local election officials to determine voter eligibility of every person who is automatically registered (presumably by using computers to match voter registration lists with other databases such as driver's licenses). How can such computers weed out citizens from non-citizens, for example? An alien who is here legally on a visa may be eligible to obtain a driver's license but is still ineligible to vote. BULLSHIT - ALL OF THEM USE SAID DRIVER LICENSE TO GO & REGISTER TO VOTE AND THEN DO VOTE, THEREIN ANOTHER OF THE MANY FEMOCRATIC URBAN MYTHS IS DESTROYED.} REAL AMERICANS ARE FED UP! And, in some jurisdictions, even those who are here illegally have been given driving privileges, further ruling them out as voters.
The Democratic Party has traditionally done well among recently arrived immigrants {TRANSLATION; ILLEGAL & CRIMINAL ALIENS} to America, who at one time were mostly legal immigrants but who now number many illegal aliens among them. This success can largely be attributed to he fact that the immigrant population tends to be less educated than the general population about such subjects as American history and the principles of self-government, and therefore more susceptible to campaign rhetoric based on promises of government benefits instead of statesman-like appeals to preserve our Constitution and separation of powers. Someone who has immigrated from a one-party nation without such a tradition of constitutional self-government is likely to find arguments based on constitutionalist principles to be purely theoretical at best, and incomprehensible at worst.
And it is not only the immigrant who is a loss to understand our form of government. The very fact that Clinton’s essay is heavy with reference to “our democracy” is indicative of just how poorly even most native-born Americans understand our history and the form of government that our Founding Fathers established.
It is no longer unusual for our political leaders to refer to our nation as a “democracy.” President Obama did so in his recent State of the Union address, stating that “democracy does require basic bonds of trust between its citizens,” “democracy breaks down when the average person feels their voice doesn’t matter,” and  “Our brand of democracy is hard.”
Even Republicans are not immune from such an inaccurate description of our form of government. In the last Republican presidential debate, New Jersey Governor Chris Christie, in criticizing Obama’s desire to do things without working with Congress and without getting the consent of the American people, said: “And the fact is that that’s not a democracy. That’s a dictatorship.”
The problem is, so many Americans who have not been properly educated about the history and origins of our nation believe those are the only two choices: democracy or dictatorship.
This Hobson’ Choice fails to consider that democracy, the rule of the majority, can be as oppressive as any overt dictatorship. One term coined to describe this oppressive majority rule is “dictatorship of the proletariat.” In an 1852 letter to the communist journalist Joseph Weydemeyer, who had published an article entitled “Dictatorship of the Proletariat” in a German language newspaper earlier that year, Karl Marx wrote:
Long before me, bourgeois historians had described the historical development of this struggle between the classes, as had bourgeois economists their economic anatomy. My own contribution was (1) to show that the existence of classes is merely bound up with certain historical phases in the development of production; (2) that the class struggle necessarily leads to the dictatorship of the proletariat; [and] (3) that this dictatorship, itself, constitutes no more than a transition to the abolition of all classes and to a classless society. [Emphasis added.]
Many years before Marx, however, our Founding Fathers warned against the pitfalls of democracy and made very clear that the new government they were establishing was a republic.
John F. McManus, president emeritus of The John Birch Society, thoroughly explained the differences between a republic and a democracy and our Founders’ commitment to the former in his article, “A Republic, if You Can Keep It,” which appeared in our magazine’s November 6, 2000 issue.
The title was a quote from Benjamin Franklin, who described the form of government he and his colleagues at the Constitutional Convention of 1787 had just established in answer to a question posed by a woman of Philadelphia: “Well, Doctor, what have we got, a republic or a monarchy?”
Thos choices were at least preferable to a democracy or a dictatorship!
As for what’s wrong with a democracy, let us allow some of our Founders to provide the answer:
Virginia's Edmund Randolph reminded his colleagues during the early weeks of the Constitutional Convention that the purpose for which they had gathered was “to provide a cure for the evils under which the United States labored; that in tracing these evils to their origin every man had found it in the turbulence and trials of democracy.”
John Adams, a signer of the Declaration of Independence and our second president, supported the new Constitution in Massachusetts precisely because it would not create a democracy. “Democracy never lasts long,” he noted. “It soon wastes, exhausts and murders itself.” He noted that history shows “There was never a democracy that ‘did not commit suicide.’ ” 

Alexander Hamilton said in a June 21, 1788 speech urging ratification of the Constitution in New York: “It has been observed that a pure democracy if it were practicable would be the most perfect government. Experience has proved that no position is more false than this. The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny; their figure deformity.”
At the Constitutional Convention the previous year, Hamilton had stated: “We are a Republican Government. Real liberty is never found in despotism or in the extremes of Democracy.”
And James Madison, often called the “Father of the Constitution,” wrote in The Federalist, No. 10: “Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives as they are violent in their deaths.”
Hillary Clinton calls for “reclaiming our democracy.” Americans should, instead, look for statesmen committed to preserving our republic — and the Constitution that established it.
Photo of Hillary Clinton: AP Images
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22 Top Secret E-Mails tucked away on Hillary's private server; what an arrogant bitch!
This has been a public service announcement and demonstration of free speech at work & we note; the Commie Bernie is no better suited to office than any Clinton.

Any wonder why the Republicans are fighting arrogance with a better form of it in Trump?

No crying in baseball or the Carpenters Union so have a nice day all you brain-washed fools.
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United States Supreme Court

HALL v. COLE, (1973)

No. 72-630

Argued: March 21, 1973    Decided: May 21, 1973


Respondent, expelled from his union for deliberate and malicious vilification of union management following his resolutions unsuccessfully condemning that management's alleged undemocratic actions and shortsighted policies, regained his union membership in a suit under 102 of the Labor-Management Reporting and Disclosure Act (LMRDA) and was awarded $5,500 in legal fees. The Court of Appeals affirmed. Held:

1. Respondent's suit under 102 of the LMRDA vindicated not only his own rights of free speech guaranteed by the statute but furthered the interests of the union and its members as well. As a result, the award to respondent of attorneys' fees under these circumstances comported with the trial court's inherent equitable power of making such an award whenever "overriding considerations indicate the need for such a recovery." Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391 -392, Pp. 4-9.
2. The allowance of counsel fees to the successful plaintiff in a suit brought under 102 is not precluded by that statutory provision and, indeed, is supported by the legislative history of the LMRDA. Pp. 9-14.
3. Under all the facts of the case, the District Court did not [412 U.S. 1, 2]   abuse its discretion in awarding counsel fees to respondent. Pp. 14-15.
462 F.2d 777, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS, STEWART, BLACKMUN, and POWELL, JJ., joined.
WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 16. MARSHALL, J., took no part in the consideration or decision of the case.
Howard Schulman argued the cause and filed a brief for petitioners.

Burton H. Hall argued the cause and filed a brief for respondent. *  

[ Footnote * ] J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal. Melvin L. Wulf and Sanford J. Rosen filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.
MR. JUSTICE BRENNAN delivered the opinion of the Court.

This case requires us to consider the propriety of an award of counsel fees to a successful plaintiff in a suit brought under 102 of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 523, 29 U.S.C. 412. 1 On August 6, 1962, at a regular meeting of the membership of petitioner Seafarers International Union of North America - Atlantic, Gulf, Lakes and Inland Waters District, respondent introduced a set of resolutions alleging various instances of undemocratic actions and shortsighted policies on the part of union officers. [412 U.S. 1, 3]   The resolutions were defeated and, on November 26, 1962, respondent was expelled from the union on the ground that his presentation of the resolutions violated a union rule proscribing 'deliberate or malicious vilification with regard to the execution or the duties of any office or job." After exhausting his intra-union remedies, respondent filed this suit under 102 of the LMRDA, claiming that his expulsion under these circumstances violated his right of free speech as secured by 101 (a) (2) of the Act, 29 U.S.C. 411 (a) (2). 2  

On May 27, 1964, the United States District Court for the Eastern district of New York issued a temporary injunction restoring respondent's membership in the union, and the United States Court of Appeals for the Second Circuit affirmed. 339 F.2d 881 (1965). Some five years later, the case came on for trial and the District Court, finding a violation of respondent's rights under 101 (a) (2), ordered him permanently reinstated to membership in the union and, although denying respondent's damages claims. 3 granted him counsel fees in the sum of $5,500 against the union. The Court of [412 U.S. 1, 4]   Appeals affirmed in all respects, 462 F.2d 777 (1972). We granted certiorari limited to the questions whether (1) an award of attorneys' fees is permissible under 102 of the LMRDA, and (2) if so, whether such an award under the facts of this case constituted an abuse of the District Court's discretion. 409 U.S. 1074 . We affirm.


Although the traditional American 4 rule ordinarily disfavors the allowance of attorneys' fees in the absence of statutory 5 or contractual authorization, 6 federal courts, [412 U.S. 1, 5]   in the exercise of their equitable powers, may award attorneys' fees when the interests of justice so require. Indeed, the power to award such fees "is part of the original authority of the chancellor to do equity in a particular situation," Sprague v. Ticonic National Bank, 307 U.S. 161, 166 (1939), and federal courts do not hesitate to exercise this inherent equitable power whenever "overriding considerations indicate the need for such a recovery." Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391 -392 (1970); see Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967).
Thus, it is unquestioned that a federal court may award counsel fees to a successful party when his opponent has acted "in bad faith, vexatiously, wantonly, or for oppressive reasons." 6 J. Moore, Federal Practice § 54.77 2., p. 1709 (2d ed. 1972); see, e. g., Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n. 4 (1968); Vaughan v. Atkinson, 369 U.S. 527 (1962); Bell v. School Bd. of Powhatan County, 321 F.2d 494 (CA4 1963); Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (CA4 1951). In this class of cases, the underlying rationale of "fee shifting" is, of course, punitive, and the essential element in triggering the award of fees is therefore the existence of "bad faith" on the part of the unsuccessful litigant.
Another established exception involves cases in which the plaintiff's successful litigation confers "a substantial benefit on the members of an ascertainable class, and where the court's jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them." Mills v. Electric Auto-Lite, supra, at 393-394. 7 "Fee shifting" [412 U.S. 1, 6]   is justified in these cases, not because of any "bad faith" of the defendant but, rather, because "[t]o allow the others to obtain full benefit from the plaintiff's efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff's expense." Id., at 392; see also Fleischmann Distilling Corp. v. Maier Brewing Co., supra, at 719; Trustees v. Greenough, 105 U.S. 527, 532 (1882). Thus, in Mills v. Electric Auto-Lite Co., supra, we approved an award of attorneys' fees to successful shareholder plaintiffs in [412 U.S. 1, 7]   a suit brought to set aside a corporate merger accomplished through the use of a misleading proxy statement in violation of 14 (a) of the Securities Exchange Act of 1934. 48 Stat. 895. 15 U.S.C. 78n (a). In reaching this result, we reasoned that, since the dissemination of misleading proxy solicitations jeopardized important interests of both the corporation and "`the stockholders as a group.'" 8 the successful enforcement of the statutory policy necessarily "rendered a substantial service to the corporation and its shareholders." Mills v. Electric Auto-Lite Co., supra, at 396. Under these circumstances, reimbursement of the plaintiffs' attorneys' fees out of the corporate treasury simply shifted the costs of litigation to "the class that has benefited from them and that would have had to pay them had it brought the suit." Id., at 397.
The instant case is clearly governed by this aspect of Mills. The Labor-Management Reporting and Disclosure Act of 1959 was based, in part, on a congressional finding "from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct . . . ." 29 U.S.C. 401 (b). In an effort to eliminate these abuses, Congress recognized that it was imperative that all union members be guaranteed at least "minimum standards of democratic process. . . ." 9 Thus, Title I 10 of the LMRDA - the "Bill of Rights of Members of Labor Organizations" - was specifically designed to promote the "full and active participation [412 U.S. 1, 8]   by the rank and file in the affairs of the union," 11 and, as the Court of Appeals noted, the rights enumerated in Title I 12 were deemed "vital to the independence of the membership and the effective and fair operation of the union as the representative of its membership." 462 F.2d, at 780. See also International Assn. of Machinists v. Nix, 415 F.2d 212 (CA5 1969); Salzhandler v. Caputo, 316 F.2d 445 (CA2 1963).
Viewed in this context, there can be no doubt that, by vindicating his own right of free speech guaranteed by 101 (a) (2) of Title I of the LMRDA, respondent necessarily rendered a substantial service to his union as an institution and to all of its members. When a union member is disciplined for the exercise of any of the rights protected by Title I, the rights of all members of the union are threatened. And, by vindicating his own right, the successful litigant dispels the "chill" cast upon the rights of others. Indeed, to the extent that such lawsuits contribute to the preservation of union democracy, they frequently prove beneficial "not only in the immediate impact of the results achieved but in their implications for the future conduct of the union's affairs." Yablonski v. United Mine Workers of America, 150 U.S. App. D.C. 253, 260, 466 F.2d 424, 431 (1972). Thus, as in Mills, reimbursement of respondent's attorneys' fees [412 U.S. 1, 9]   out of the union treasury 13 simply shifts the costs of litigation to "the class that has benefited from them and that would have had to pay them had it brought the suit." Mills v. Electric Auto-Lite Co., supra, at 397. See also Yablonski v. United Mine Workers of America, supra; Robins v. Schonfeld, 326 F. Supp. 525 (SDNY 1971); Cefalo v. International Union of District 50 United Mine Workers, 311 F. Supp. 946 (DC 1970); Sands v. Abelli, 290 F. Supp. 677 (SDNY 1968). We must therefore conclude that an award of counsel fees to a successful plaintiff in an action under 102 of the LMRDA falls squarely within the traditional equitable power of federal courts to award such fees whenever "overriding considerations indicate the need for such a recovery." Mills v. Electric Auto-Lite Co., supra, at 391-392. 


This does not end our inquiry, however, for even where "fee-shifting" would be appropriate as a matter of equity, Congress has the power to circumscribe such relief. In Fleischmann Distilling Corp. v. Maier Brewing Co., supra, for example, we held that 35 of the Lanham Act, 60 Stat. 439, 15 U.S.C. 1117, precluded an award of attorneys' fees as a separate element of recovery in a suit for deliberate infringement of a trademark. In reaching that result, we reasoned that, since 35 "meticulously detailed the remedies available to a plaintiff [412 U.S. 1, 10]   who proves that his valid trademark has been infringed," Congress must have intended the express remedial provisions of 35 "to mark the boundaries of the power to award monetary relief in cases arising under the Act." Id., at 719, 721. Petitioners contend that this reasoning dictates a similar conclusion with respect to 102 of the LMRDA. We do not agree. Unlike 35 of the Lanham Act, which specifically "provided not only for injunctive relief, but also for compensatory recovery measured by the profits that accrued to the defendant by virtue of his infringement, the costs of the action, and damages which may be trebled." 14 102 of the LMRDA broadly authorizes the courts to grant "such relief (including injunctions) as may be appropriate." 29 U.S.C. 412. Thus, 102 does not "meticulously detail the remedies available to a plaintiff," and we cannot fairly infer from the language of that provision an intent to deny to the courts the traditional equitable power to grant counsel fees in "appropriate" situations.
Petitioners argue further, however, that because Congress expressly authorized the recovery of counsel fees in 201 (c) and 501 (b) of the LMRDA, 29 U.S.C. 431 (c), 501 (b), the absence of a similar express provision in 102 indicates an intent to preclude "fee-shifting" in suits brought under that section. Sections 201 (c) and 501 (b), which are not a part of Title I, deal with narrowly defined problems under the Act, and specifically authorize such limited remedies as an examination of the union's books and records and an accounting. 15 By contrast, 102 was premised upon the fact [412 U.S. 1, 11]   that Title I litigation necessarily demands that remedies "be tailored to fit facts and circumstances admitting of almost infinite variety," 16 and 102 was therefore cast as a broad mandate to the courts to fashion "appropriate" relief. Indeed, any attempt on the part of Congress to spell out all of the remedies available under 102 would create the "danger that those [remedies] not listed might be proscribed with the result that the courts would be fettered in their efforts to `grant relief according to the necessities of the case.'" Gartner v. Soloner, 384 F.2d 348, 353 (CA3 1967). See Fleischmann Distilling Corp. v. Maier Brewing Co., supra. Confronted with a virtually identical situation in Mills, we explained that the inclusion in certain sections of the Securities Exchange Act of 1934 of express provisions for recovery of attorneys' fees "should not be read as denying to the courts the power to award counsel fees in suits under other sections of the Act when circumstances make such an award appropriate . . . ." 396 U.S., at 390 -391. That reasoning is equally persuasive today. 17  
Finally, petitioners call our attention to two isolated comments in the legislative history of Title I - one by Senator Goldwater in his testimony before a House Committee 18   [412 U.S. 1, 12]   and the other contained in a dissenting statement to a House Committee Report 19 - expressing the fear that, in the absence of a specific provision for the award of counsel fees, such relief would be unavailable in suits brought under 102. Although these statements plainly indicate "a feeling by some members of the Congress that it would have been desirable and prudent to spell out unmistakably a right to attorney's fees," they "hardly amount to a definitive and absolute setting of the Congressional face against the giving of such incidental relief by the courts where compatible with sound and established equitable principles." Yablonski v. United Mine Workers of America, 150 U.S. App. D.C., at 258, 466 F.2d, at 429. See Gartner v. Soloner, supra, at 352. Indeed, both of these comments expressly favored the allowance of counsel fees in Title I litigation, and there is no suggestion anywhere in the [412 U.S. 1, 13]   legislative history that even a single member of Congress was opposed to such relief or desired the words "such relief . . . as may be appropriate" to restrict the historic equity powers of the federal courts. On the contrary, there are numerous expressions by sponsors and other supporters of the Act indicating that 102 was intended to afford the courts "a wide latitude to grant relief according to the necessities of the case," 20 and "to give such relief as [the court] deems equitable under all the circumstances." 21  
Moreover, the award of attorneys' fees under 102 is clearly consonant with Congress' express desire to adopt "legislation that will afford necessary protection of the rights and interests of employees and the public generally . . . ." 29 U.S.C. 401 (b). As the Court of Appeals recognized:

"Not to award counsel fees in cases such as this would be tantamount to repealing the Act itself by frustrating its basic purpose. It is difficult for individual members of labor unions to stand up and fight those who are in charge. The latter have the treasury of the union at their command and the paid union counsel at their beck and call while the member is on his own. . . . An individual union member could not carry such a heavy financial burden. Without counsel fees the grant of federal jurisdiction is but a gesture for few union members could avail themselves of it." 462 F.2d, at 780-781.
Thus, it is simply "untenable to assert that in establishing the bill of rights under the Act Congress intended to have those rights diminished by the unescapable fact that [412 U.S. 1, 14]   an aggrieved union member would be unable to finance litigation . . . ." Gartner v. Soloner, supra, at 355. See Yablonski v. United Mine Workers of America, supra, at 259, 466 F.2d, at 430; Robins v. Schonfeld, 326 F. Supp., at 531; Sands v. Abelli, 290 F. Supp., at 686; cf. Newman v. Piggie Park Enterprises, Inc., 390 U.S., at 402 . We therefore hold that the allowance of counsel fees to the successful plaintiff in a suit brought under 102 of the LMRDA is consistent with both the Act and the historic equitable power of federal courts to grant such relief in the interests of justice.


Finally, petitioners maintain that the award of counsel fees to respondent under the facts of this case constituted an abuse of the District Court's discretion. Specifically, petitioners argue that the District Court's finding that some of respondent's actions "were, in part, motivated by [his] political ambitions for union office" represents a finding of "bad faith" on the part of respondent. The District Court clearly rejected the "logic" of this contention, and we agree. Title I of the LMRDA was specifically designed to protect the union member's right to seek higher office within the union, 22 and we can hardly accept the proposition that the exercise of that right is tantamount to "bad faith." See Yablonski v. United Mine Workers of America, supra, at 259-260, 466 F.2d, at 430-431. [412 U.S. 1, 15]  

Petitioners also contend that the award of attorneys' fees in this case was improper because the District Court, in denying respondent's claim for punitive damages, found that "the defendants, in good faith, believed that they had a right to charge and discipline [respondent] for his actions." It is clear, however, that "bad faith" may be found, not only in the actions that led to the lawsuit, but also in the conduct of the litigation. And, as the Court of Appeals noted, the conduct of this particular litigation was marked by "the dilatory action of the union and its officers. . . ." 462 F.2d, at 780. Moreover, although the presence of "bad faith" is essential to "fee-shifting" under a "punishment" rationale, neither the presence nor absence of "bad faith" is in any sense dispositive where attorneys' fees are awarded to the successful plaintiff under the "common benefit" rationale recognized in Mills and operative today. Under that theory, counsel fees are granted, not because of the "bad faith" of the defendant but, rather, because the litigation confers substantial benefits on an ascertainable class of beneficiaries. In that situation, the element of "bad faith" of the defendant is simply one of many considerations best addressed to the sound discretion of the District Court. 23 Under the facts of this case, we cannot say that the District Court abused that discretion.
The judgment of the Court of Appeals is


MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
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certiorari to the united states court of appeals for the second circuit


No. 10–779. Argued April 26, 2011—Decided June 23, 2011

Pharmaceutical manufacturers promote their drugs to doctors through a process called “detailing.” Pharmacies receive “prescriber-identifying information” when processing prescriptions and sell the information to “data miners,” who produce reports on prescriber behavior and lease their reports to pharmaceutical manufacturers. “Detailers” employed by pharmaceutical manufacturers then use the reports to refine their marketing tactics and increase sales to doctors. Vermont’s Prescription Confidentiality Law provides that, absent the prescriber’s consent, prescriber-identifying information may not be sold by pharmacies and similar entities, disclosed by those entities for marketing purposes, or used for marketing by pharmaceutical manufacturers. Vt. Stat. Ann., Tit. 18, §4631(d). The prohibitions are subject to exceptions that permit the prescriber-identifying information to be disseminated and used for a number of purposes, e.g., “health care research.” §4631(e).

          Respondents, Vermont data miners and an association of brand-name drug manufacturers, sought declaratory and injunctive relief against state officials (hereinafter Vermont), contending that §4631(d) violates their rights under the Free Speech Clause of the First Amendment . The District Court denied relief, but the Second Circuit reversed, holding that §4631(d) unconstitutionally burdens the speech of pharmaceutical marketers and data miners without adequate justification.

Held :

     1. Vermont’s statute, which imposes content- and speaker-based burdens on protected expression, is subject to heightened judicial scrutiny. Pp. 6–15.

          (a) On its face, the law enacts a content- and speaker-based restriction on the sale, disclosure, and use of prescriber-identifying information. The law first forbids sale subject to exceptions based in large part on the content of a purchaser’s speech. It then bars pharmacies from disclosing the information when recipient speakers will use that information for marketing. Finally, it prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, i.e., speech with a particular content, as well as particular speakers , i.e. , detailers engaged in marketing on behalf of pharmaceutical manufacturers. Cincinnati v. Discovery Network, Inc. , 507 U. S. 410 ; Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622 . Yet the law allows prescriber-identifying information to be purchased, acquired, and used for other types of speech and by other speakers. The record and formal legislative findings of purpose confirm that §4631(d) imposes an aimed, content-based burden on detailers, in particular detailers who promote brand-name drugs. In practical operation, Vermont’s law “goes even beyond mere content discrimination, to actual viewpoint discrimination.” R. A. V.  v.  St. Paul , 505 U. S. 377 . Heightened judicial scrutiny is warranted. Pp. 8–11.

          (b) Vermont errs in arguing that heightened scrutiny is unwarranted. The State contends that its law is a mere commercial regulation. Far from having only an incidental effect on speech, however, §4631(d) imposes a burden based on the content of speech and the identity of the speaker. The State next argues that, because prescriber-identifying information was generated in compliance with a legal mandate, §4631(d) is akin to a restriction on access to government-held information. That argument finds some support in Los Angeles Police Dept. v. United Reporting Publishing Corp. , 528 U. S. 32 , but that case is distinguishable. Vermont has imposed a restriction on access to information in private hands. United Reporting reserved that situation— i.e., “a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses.” Id., at 40. In addition, the United Reporting plaintiff was presumed to have suffered no personal First Amendment injury, while respondents claim that §4631(d) burdens their own speech. That circumstance warrants heightened scrutiny. Vermont also argues that heightened judicial scrutiny is unwarranted because sales, transfer, and use of prescriber-identifying information are conduct, not speech. However, the creation and dissemination of information are speech for First Amendment purposes. See, e.g. , Bartnicki v. Vopper , 532 U. S. 514 . There is no need to consider Vermont’s request for an exception to that rule. Section 4631(d) imposes a speaker- and content-based burden on protected expression, and that circumstance is sufficient to justify applying heightened scrutiny, even assuming that prescriber-identifying information is a mere commodity. Pp. 11–15.

     2. Vermont’s justifications for §4631(d) do not withstand heightened scrutiny. Pp. 15–24.

          (a) The outcome here is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied, see, e.g. , Greater New Orleans Broadcasting Assn., Inc. v. United States , 527 U. S. 173 . To sustain §4631(d)’s targeted, content-based burden on protected expression, Vermont must show at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest. See Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469 . Vermont contends that its law (1) is necessary to protect medical privacy, including physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship, and (2) is integral to the achievement of the policy objectives of improving public health and reducing healthcare costs. Pp. 15–17.

          (b) Assuming that physicians have an interest in keeping their prescription decisions confidential, §4631(d) is not drawn to serve that interest. Pharmacies may share prescriber-identifying information with anyone for any reason except for marketing. Vermont might have addressed physician confidentiality through “a more coherent policy,” Greater New Orleans Broadcasting , supra , at 195, such as allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. But it did not. Given the information’s widespread availability and many permissible uses, Vermont’s asserted interest in physician confidentiality cannot justify the burdens that §4631(d) imposes on protected expression. It is true that doctors can forgo the law’s advantages by consenting to the sale, disclosure, and use of their prescriber-identifying information. But the State has offered only a contrived choice: Either consent, which will allow the doctor’s prescriber-identifying information to be disseminated and used without constraint; or, withhold consent, which will allow the information to be used by those speakers whose message the State supports. Cf. Rowan v. Post Office Dept. , 397 U. S. 728 . Respondents suggest a further defect lies in §4631(d)’s presumption of applicability absent an individual election to the contrary. Reliance on a prior election, however, would not save a privacy measure that imposed an unjustified burden on protected expression. Vermont also asserts that its broad content-based rule is necessary to avoid harassment, but doctors can simply decline to meet with detailers. Cf. Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton , 536 U. S. 150 . Vermont further argues that detailers’ use of prescriber-identifying information undermines the doctor-patient relationship by allowing detailers to influence treatment decisions. But if pharmaceutical marketing affects treatment decisions, it can do so only because it is persuasive. Fear that speech might persuade provides no lawful basis for quieting it. Pp. 17–21.

          (c) While Vermont’s goals of lowering the costs of medical services and promoting public health may be proper, §4631(d) does not advance them in a permissible way. Vermont seeks to achieve those objectives through the indirect means of restraining certain speech by certain speakers— i.e., by diminishing detailers’ ability to influence prescription decisions. But “the fear that people would make bad decisions if given truthful information” cannot justify content-based burdens on speech. Thompson v. Western States Medical Center , 535 U. S. 357 . That precept applies with full force when the audience—here, prescribing physicians—consists of “sophisticated and experienced” consumers. Edenfield v. Fane , 507 U. S. 761 . The instant law’s defect is made clear by the fact that many listeners find detailing instructive. Vermont may be displeased that detailers with prescriber-indentifying information are effective in promoting brand-name drugs, but the State may not burden protected expression in order to tilt public debate in a preferred direction. Vermont nowhere contends that its law will prevent false or misleading speech within the meaning of this Court’s First Amendment precedents. The State’s interest in burdening detailers’ speech thus turns on nothing more than a difference of opinion. Pp. 21–24.

630 F. 3d 263, affirmed.

     Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, Alito, and Sotomayor, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg and Kagan, JJ., joined.

Fullt Text:


Sounds like the UBCJA Constitution and it's paranoid secret squirrel Obligation;

Sentence 1 which states: "I do, of my own free will and accord, solemnly and sincerely promise-on my sacred honor-that I will never reveal-by word or deed-any of the business of this United Brotherhood-unless legally authorized to do so.


Sentence 2 which states: "I promise to abide the Constitution and Laws-and will of the majority-observe the By Laws and Trade Rules-established by Local Unions and Councils-affiliated with the United Brotherhood...."

A)   See the United States Constitution (the real one) and the First Amendment.

B)   The NLRB has ruled the UBCJA Constitution and its phony obligation as being 'facially unlawful'.

C)   Local Unions are never allowed to create or pass any By-Laws remember Doug? You illegally took that right away a very long time ago. Try & have your attorneys keep up and amend the make pretend Obligation to reflects that fact.  

D)   Paranoid about something Doug; or have you done so many illegal things since becoming the G.P. in 1995 that you cannot keep track of all the lies. Afraid of being exposed for using every NLRB region, every state & Appellate Court to fraudulently alter and amend the NLRA, LMRA, LMRDA, ERISA, EBSA etc. to continue your criminal racketeering empire/enterprise wherein you & you alone rule via autocratic fiat and dictatorial means as the declared King? How many billions is member assets have you diverted or illegally converted to corporate interests in your criminal racketeering scams in violation of Dodd-Frank, SEC & IRS laws & regulations?

How much property & assets of Local Unions have you stolen over the last 21-years? How many more Hobbs Act criminal racketeering schemes do you & your corporate handlers/puppet-masters believe you can concoct & get away with before the Fed's have finally had enough and they indict you? We admit, the Fed's are slower than slow, but given you cannot buy off every congressman, judge or Federal Agency employee in the country now can you; so your days are numbered.

The relevance of all of it are wages, hours, terms & conditions of employment. Benefits are nothing more than deferred compensation from our wages which are to be held and used for the benefit of the rank & file member and no other - get it? None of it is for you or your corporate pals or puppetmasters. None of it is to be stolen, moved around or converted to their use; either on shore or off shore, for any purpose - get it? None of it is to be moved to foreign countries and re-invested here to provide non-union contractors & developers with loans they cannot obtain on their own, to build their projects in the USA with our money while you have our boys standing out front picketing the job - get it?

Want my U-Number, my Book? Sue me, I double dog dare you! You don't have the balls!

All criminal racketeering suspects are guilty until proven innocent; ahh, shit - I meant innocent until proven guilty in a corruption free court of law; or are they?  
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7th Circuit Court of Appeals
     Sweeney v. Pence
     Decided 9-12-14

..."the First Amendment “protects the right to be free from government abridgement of speech,” but it does not “require[ ]” the government “to assist others in funding the expression of particular ideas, including political ones.” Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 358 (2009). ."

The UBCJA International sponsored/funded Blue Card and its morphed cousin named the White Card as well as every other District Council mandatory Union Participation Program (UPP) mandate coercing & forcing all Union members to perform mandatory Leaflet, Banner or Picket Duty via fine; however disguised or re-worded; OR any other mandated participation requirement whether or not political violates the NLRA Section 7 'right' to refrain from any & all duty which the Union proscribes and forces upon its members and per all past posts remain illegal, facially unlawful under all federal statute, law, Appellate Court & United States Supreme court precedents. And, it also vioates your Free Speech and First Amendment rights as well.

The UBCJA International knows this as fact as does its corporate counsel; as does the former Review Officer & current Independent Monitor Glen McGorty as does the government/United States Attorney for the S.D.N.Y. and Federal District Court Judge Richard M. Berman.

The UBCJA International flaunts the laws & precedent at will and w/o application at any time to the Federal District Court to subvert Federal law via any All Writs Act application and/or approval by the Court; nor could it.; thus, via the fines, penalties collected, whether or not disguised as refunds, work assessments, dues or any other name they conjure up - the clear facts prove that the UBCJA International & its affilated District Councils and Local Unions are running an inter-state Hobbs Act criminal Racketeering operation through all 50-States, the District of Columbia etc.

The UBCJA has raked in hundreds of millions of dollars & are pushing close/exceeding to a billion dollars in illegal collections & racketeering since the illegal programs inception; yet, the hear no evil, see no evil, speak no evil or catch no evil and very inept and complicit U.S. Attorneys Office in Manhattan does absolutely nothing to stop the criminal racketeering of the UBCJA International. Instead of preventing it, it willingly participates in the continued raping & extortion of the members in NYC and nationally.

Benjamin Torrance and Preet Bhararra are unfit to practice law in the State of New York and should be removed from the Consent Decree and replaced with competent legal counsel who would pursue this very simple & straight-forward prima-facie racketeering case and one who would seat a grand jury and indict the parties previously named throughout every post in this thread.


All criminal suspects are guilty until proven innocent in a UBCJA Kangaroo Court of law, a court of law; ahh, shit - I meant innocent until proven guilty in a corruption free court of law, or are they?  
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(Slip Opinion) OCTOBER TERM, 2015 1
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


No. 14–1280. Argued January 19, 2016—Decided April 26, 2016

Petitioner Heffernan was a police officer working in the office of Paterson, New Jersey’s chief of police. Both the chief of police and Heffernan’s supervisor had been appointed by Paterson’s incumbent mayor,
who was running for re-election against Lawrence Spagnola, a good friend of Heffernan’s. Heffernan was not involved in Spagnola’s campaign in any capacity. As a favor to his bedridden mother, Heffernan
agreed to pick up and deliver to her a Spagnola campaign yard sign. Other police officers observed Heffernan speaking to staff at a Spagnola distribution point while holding the yard sign. Word
quickly spread throughout the force. The next day, Heffernan’s supervisors demoted him from detective to patrol officer as punishment for his “overt involvement” in Spagnola’s campaign. Heffernan filed
suit, claiming that the police chief and the other respondents had demoted him because, in their mistaken view, he had engaged in conduct that constituted protected speech. They had thereby
“depriv[ed]” him of a “right . . . secured by the Constitution.” 42 U. S. C. §1983. The District Court, however, found that Heffernan had not been deprived of any constitutionally protected right because
he had not engaged in any First Amendment conduct. Affirming, the Third Circuit concluded that Heffernan’s claim was actionable under §1983 only if his employer’s action was prompted by Heffernan’s actual, rather than his perceived, exercise of his free-speech rights.

1. When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First
Amendment and §1983 even if, as here, the employer’s actions are


based on a factual mistake about the employee’s behavior. To answer the question whether an official’s factual mistake makes a critical legal difference, the Court assumes that the activities that Heffernan’s
supervisors mistakenly thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish. Section 1983 does not say whether the “right” protected primarily focuses on the employee’s actual activity or on the supervisor’s motive. Neither does precedent directly answer the question. In Connick v. Myers, 461 U. S. 138, Garcetti v. Ceballos, 547 U. S. 410, and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, there were no factual mistakes: The only question was whether the undisputed reason for the adverse action was in fact protected by the First Amendment. However, in Waters v. Churchill, 511 U. S. 661, an government employer’s adverse action was based on a mistaken belief that an employee had not engaged in protected speech. There, this Court determined that the employer’s motive, and particularly the facts as the employer reasonably understood them, mattered in determining that the employer had not violated the First Amendment.

The government’s motive likewise matters here, where respondents demoted Heffernan on the mistaken belief that he had engaged in protected speech. A rule of law finding liability in these circumstances tracks the First Amendment’s language, which focuses upon the Government’s activity. Moreover, the constitutional harm— discouraging employees from engaging in protected speech or association—is
the same whether or not the employer’s action rests upon a factual mistake. Finally, a rule of law imposing liability despite the employer’s factual mistake is not likely to impose significant extra costs upon the employer, for the employee bears the burden of proving an improper employer motive. Pp. 3–8.

2. For the purposes of this opinion, the Court has assumed that Heffernan’s employer demoted him out of an improper motive. However, the lower courts should decide in the first instance whether respondents may have acted under a neutral policy prohibiting police officers from overt involvement in any political campaign and whether such a policy, if it exists, complies with constitutional standards.
P. 8. 777 F. 3d 147, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.
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GO "TED" GO !!!!!!!!! You go girl.
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The New Normal: Employee's Profane, Insubordinate Outburst Is Protected Activity According to the NLRB 

June 19, 2014

On remand from the Ninth Circuit, the National Labor Relations Board held for the second time that an employer violated the National Labor Relations Act  by terminating an employee who engaged in a profane and insubordinate outburst.  The Board required the employer to reinstate the employee with back pay and benefits.  Plaza Auto Center, Inc. and Nick Aguirre, 360 NLRB No. 117 (May 28, 2014).  
The employee worked as a car salesman in 2008.  While employed there, he discussed the employer’s policies on breaks, restroom facilities, and compensation practices with other employees.  After the employee complained to a sales manager about the employer’s calculation of sales commissions, the owner called him into a meeting in the sales manager’s office.  During this meeting, the employee was told that he needed to follow the employer’s policies and procedures, that he should not be complaining about his pay, and that he did not need to work for the employer if he did not trust them.  The employee then lost his temper, yelling at the owner and calling him a “f**king mother f**ker,” a “f**king crook,” and an “a**hole.”  He also told the owner he “was stupid, nobody liked him, and everyone talked about him behind his back.”  The employee also stood in the small office, pushed his chair aside, and warned the owner that if the owner fired him, the owner would regret it.  The business owner did not intend to fire the employee at this meeting, but he did so following the employee’s outburst.
The Board initially concluded the employee’s conduct was not egregious enough to lose protection of the Act.  See Plaza Auto Center, Inc., 355 NLRB 493 (2010).  In reaching that decision, the Board considered the following factors from Atlantic Steel Co., 245 NLRB 814 (1979): (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices.  The Board concluded that all four Atlantic Steel factors weighed in favor of protection, and therefore, the employer violated the Act by firing the employee.
On appeal, the Ninth Circuit agreed with the Board on three of the Atlantic Steel factors but remanded the case because it found that the Board erred in its assessment that the nature of the outburst weighed in favor of protection.  On remand, in a 2-1 decision (Pearce, Hirozawa), the Board agreed with the Ninth Circuit’s finding that the nature-of-the-outburst factor weighed against protection.  Even so, the Board concluded that the other three Atlantic Steel factors weighed in the employee’s favor, because: (1) the outburst occurred in a closed-door meeting in a manager’s office away from the workplace; (2) the discussion concerned the employee’s protected conduct; and (3) the outburst was provoked because it would not have occurred but for the employer’s unfair labor practice of inviting the employee to quit if he did not like the employer’s policies.
Additionally, despite the employee’s outrageous conduct, the Board concluded that the employee did not engage in menacing, physically aggressive, or belligerent conduct, because he made no specific threats of physical harm, had no history of committing or threatening violent acts during his employment, and he did not hit, touch, or attempt to hit or touch the owner.  In doing so, the Board applied an objective standard and disregarded the owner’s testimony that he feared for his personal safety and for the safety of other employees.  Instead, the Board concluded that the employee’s “you will regret it” statement was a threat of legal consequences and not of physical harm.  
Member Johnson’s dissent noted that under the standard articulated by the Board, employees “will be permitted to curse, denigrate, and defy their managers with impunity during the course of otherwise protected activity, provided they do so in front of a relatively small audience, can point to some provocation, and do not make overt physical threats.”  Employers—both union and non-union—should proceed with caution when disciplining employees who might be engaged in concerted activity, as this Board decision comes closer to issuing employees a carte blanche in such circumstances.

* Littler is a notorious Union busting law firm; so the article is written from their persepctive and akin to the owner, they seemingly hate protections afforded via First Amendment & Free Speech precedent.

Funny, just like the corrupt UBCJA, all of it's D.C.'s & Local Unions - right. Sit down, shut the fuck up - except in the UBC, the one McCarron has built; you get the beating or the threat of the beating out back by 10 tough guys for exercising your rights.

Remember - under the brainiac Dennis Walsh and his mentor, the disgraced former Judge Kenneth Conboy and Judge Berman; you got a new form of "Democratic Engagement" which is to say, that Walsh, Conboy, McCarron & the corrupt United States Attorney shit all over a ton of precedent and all of your rights.

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Black Lives Do Matter; re:

(Slip Opinion) OCTOBER TERM, 2015 1
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

No. 14–8349. Argued November 2, 2015—Decided May 23, 2016

Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury. Foster argued that the State’s use of those strikes was racially motivated, in violation of Batson v. Kentucky, 476 U. S. 79. The trial court rejected that claim,
and the Georgia Supreme Court affirmed. Foster then renewed his Batson claim in a state habeas proceeding. While that proceeding was pending, Foster, through the Georgia Open Records Act, obtained
from the State copies of the file used by the prosecution during his trial.
 Among other documents, the file contained (1) copies of the jury venire list on which the names of each black prospective juror
were highlighted in bright green, with a legend indicating that the highlighting “represents Blacks”; (2) a draft affidavit from an investigator comparing black prospective jurors and concluding, “If it comes
down to having to pick one of the black jurors, [this one] might be okay”; (3) notes identifying black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) notes with “N” (for “no”) appearing next to the names of all black prospective jurors; (5) a list titled “[D]efinite NO’s” containing six names, including the names of all of the qualified black prospective jurors; (6) a document with notes on the Church of Christ that was annotated “NO. No Black Church”; and (7) the questionnaires filled out by five prospective black jurors, on which each juror’s response indicating his or her race had been circled.

The state habeas court denied relief. It noted that Foster’s Batson claim had been adjudicated on direct appeal. Because Foster’s renewed Batson claim “fail[ed] to demonstrate purposeful discrimination,”
the court concluded that he had failed to show “any change in the facts sufficient to overcome” the state law doctrine of res judicata.


The Georgia Supreme Court denied Foster the Certificate of Probable Cause necessary to file an appeal.

1. This Court has jurisdiction to review the judgment of the Georgia Supreme Court denying Foster a Certificate of Probable Cause on his Batson claim. Although this Court cannot ascertain the grounds
for that unelaborated judgment, there is no indication that it rested on a state law ground that is both “independent of the merits” of Foster’s Batson claim and an “adequate basis” for that decision, so as to
preclude jurisdiction. Harris v. Reed, 489 U. S. 255, 260. The state habeas court held that the state law doctrine of res judicata barred Foster’s claim only by examining the entire record and determining
that Foster had not alleged a change in facts sufficient to overcome the bar.
 Based on this lengthy “Batson analysis,” the state habeas court concluded that Foster’s renewed Batson claim was “without
merit.” Because the state court’s application of res judicata thus “depend[ed] on a federal constitutional ruling, [that] prong of the court’s holding is not independent of federal law, and [this Court’s] jurisdiction is not precluded.” Ake v. Oklahoma, 470 U. S. 68, 75; see also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 152. Pp. 6–9.

2. The decision that Foster failed to show purposeful discrimination was clearly erroneous. Pp. 9–25.

(a) Batson provides a three-step process for adjudicating claims such as Foster’s. “First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Snyder v. Louisiana, 552 U. S. 472, 477 (internal quotation marks and brackets omitted). Only Batson’s third step is at issue here. That step turns on factual findings made by the lower courts, and this Court will defer to those findings unless they are clearly erroneous. See ibid. Pp. 9–10.

(b) Foster established purposeful discrimination in the State’s strikes of two black prospective jurors: Marilyn Garrett and Eddie Hood. Though the trial court accepted the prosecution’s justifications for both strikes, the record belies much of the prosecution’s reasoning. Pp. 10–22.

(i) The prosecution explained to the trial court that it made a last-minute decision to strike Garrett only after another juror, Shirley Powell, was excused for cause on the morning that the strikes were exercised. That explanation is flatly contradicted by evidence

Cite as: 578 U. S. ____ (2016) 3

showing that Garrett’s name appeared on the prosecution’s list of “[D]efinite NO’s”—the six prospective jurors whom the prosecution was intent on striking from the outset. The record also refutes several
of the reasons the prosecution gave for striking Garrett instead of Arlene Blackmon, a white prospective juror. For example, while the State told the trial court that it struck Garrett because the defense
did not ask her for her thoughts about such pertinent trial issues as insanity, alcohol, or pre-trial publicity, the record reveals that the defense asked Garrett multiple questions on each topic. And though the State gave other facially reasonable justifications for striking Garrett, those are difficult to credit because of the State’s willingness to accept white jurors with the same characteristics. For example, the prosecution claims that it struck Garrett because she was divorced and, at age 34, too young, but three out of four divorced white prospective jurors and eight white prospective jurors under age 36
were allowed to serve. Pp. 11–17.

(ii) With regard to prospective juror Hood, the record similarly undermines the justifications proffered by the State to the trial court for the strike. For example, the prosecution alleged in response to Foster’s pretrial Batson challenge that its only concern with Hood was the fact that his son was the same age as the defendant. But then, at a subsequent hearing, the State told the court that its chief concern was with Hood’s membership in the Church of Christ. In the end, neither of those reasons for striking Hood withstands scrutiny.

As to the age of Hood’s son, the prosecution allowed white prospective jurors with sons of similar age to serve, including one who, in contrast to Hood, equivocated when asked whether Foster’s age would be
a factor at sentencing. And as to Hood’s religion, the prosecution erroneously claimed that three white Church of Christ members were excused for cause because of their opposition to the death penalty,
when in fact the record shows that those jurors were excused for reasons unrelated to their views on the death penalty. Moreover, a document acquired from the State’s file contains a handwritten note stating, “NO. NO Black Church,” while asserting that the Church of Christ does not take a stand on the death penalty. Other justifications for striking Hood fail to withstand scrutiny because no concerns
were expressed with regard to similar white prospective jurors.
Pp. 17–23.

(c) Evidence that a prosecutor’s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination. Miller-El v. Dretke, 545 U. S. 231, 241. Such evidence is compelling with respect to Garrett and Hood and, along with the prosecution’s shifting explanations, misrepresentations of the record,


and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was “motivated in substantial part by discriminatory intent.” Snyder, 552 U. S., at 485. P. 23.

(d) Because Batson was decided only months before Foster’s trial, the State asserts that the focus on black prospective jurors in the prosecution’s file was an effort to develop and maintain a detailed account
should the prosecution need a defense against any suggestion that its reasons were pretextual. That argument, having never before been raised in the 30 years since Foster’s trial, “reeks of afterthought.”
Miller-El, 545 U. S., at 246. And the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. Pp. 23–25.

Reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. THOMAS, J., filed a dissenting opinion.