Those who watch Fourth Circuit opinions already know this, but the court recently released an opinion ordering the Eastern District of North Carolina to vacate a gag order entered in ongoing litigation related to North Carolina hog farms. In addition to the importance of the core ruling – overturning the gag order – the Fourth Circuit’s opinion is a powerful statement about the importance of First Amendment rights and the need for trial courts to dot all the i’s and cross all the t’s before taking away those rights.
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This article is posted in anticipation of the 2017 Education Law Section Annual Meeting and CLE scheduled for April 21 at the N.C. Bar Center. The theme of the program is freedom of speech in educational institutions.
A 50th anniversary came and went this past fall without fanfare or commemoration. But for several weeks in October and November of 1966, Andrew Marvell’s poem, “To His Coy Mistress,” written circa 1650’s, was a “national sensation.”[1] On Oct. 17, 1966, the television station WRAL reported that a UNC English instructor had assigned his students to write a paper on seduction using this 17th-century poem.[2] Subsequent investigation by a departmental committee determined in November that the instructor, Michael Paull, had not given the students that assignment, but asked them to use the poem to explain imagery and six figures of poetic speech.[3]
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Many lawyers who represent private sector employers are familiar with the (some might say “harsh”) position on social media policies taken by the National Labor Relations Board during the Obama Administration. The NLRB’s position is that overly vague social media policies have a “chilling effect” on employees seeking to exercise their rights to engage in concerted activity under Section 7 of the National Labor Relations Act.
Under the NLRB’s analysis, social media policies that require “courtesy,” or that prohibit employees from “disparaging” the company or its management, or posting in a way that “adversely reflects on the company” violate Section 7. This applies to both union and non-union employers.
But the NLRA doesn’t cover federal, state, or local government employees, which is great if you represent a government employer . . .
. . . right?
Apparently not. Although public employers do not have to worry about the NLRA, they do have to worry about this little thing called “the First Amendment.”
A recent decision from the U.S. Court of Appeals for the Fourth Circuit, Liverman v. City of Petersburg (Virginia), indicates that there may not be much practical difference between a First Amendment analysis of public employer social media policies and a Section 7 analysis of private employer policies.
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