Last week I blogged about a federal district court's holding that Ohioans -- even ones employed by private employers -— are presumptively protected from being fired for off-employer-property (and presumably off-duty and lawful) possession of guns. The court concluded that such firing would violate the tort cause of action created by Ohio state courts and known as "discharge in violation of public policity"; the case is Plona v. UPS, 2007 WL 509747 (N.D. Ohio Feb. 13) (emphasis added):
Plona, an Ohio resident, was employed by UPS at a facility in Cleveland, Ohio.... Plona ... was terminated in April 2006, allegedly because UPS discovered that Plona had a handgun in his vehicle while at work. Plona alleges that he had the handgun, which was disassembled and unloaded, and locked in his car in a public-access parking lot used by both UPS employees like Plona and non-employees/customers of UPS. On the day of his termination, UPS announced that law enforcement would be conducting a routine search of all persons and property on UPS premises for contraband. When Plona informed law enforcement about the handgun locked in his car, and the handgun was then discovered, he was terminated....
[T]he court proceeds on the facts alleged in the complaint and all inferences drawn in Plona's favor, meaning that the court presumes for the purposes of this motion that the parking lot where Plona's car was parked was not UPS company property....
Plona has made one claim in his complaint against UPS, for wrongful termination in violation of Ohio public policy. That claim, under Ohio common law, has four elements: (1) that a clear public policy existed and was manifested in the federal or state constitution, statute or administrative regulation, or in the common law (the “clarity” element); (2) that terminating employees under the alleged circumstances would jeopardize the public policy (the “jeopardy” element); (3) that the termination was motivated by conduct related to the public policy (the “causation” element); and (4) that the employer lacked overriding legitimate business reasons for termination (the “overriding justification” element).... The first two elements — clarity and jeopardy — are questions of law, to be determined by the court..
In this case, the claimed source of the “clear” public policy is the Ohio constitution, Article I, Section 4, which states that “[t]he people have the right to bear arms for their defense and security ...” Plona asserts that Ohio has a clear public policy, as stated by its constitution, permitting its citizens to bear arms and that allowing UPS to terminate him for possessing an unloaded, disassembled firearm off of company property would jeopardize that public policy.... The court finds that the public policy of Ohio permitting citizens to bear arms, as stated in Article I, Section 4 of the Ohio constitution, is clear enough to form the basis of a wrongful termination claim....
Permitting UPS to terminate Plona for possession of a firearm off of company property would be no different than permitting UPS to terminate Plona for possessing a firearm at his residence. And allowing an employer to terminate an employee for exercising a clearly established constitutional right jeopardizes that right, even if no state action is involved.
The comment thread yielded an interesting discussion about whether this was a sound application of this tort -- and one can of course argue about whether the tort is sound more broadly, or whether the employment-at-will principle should be preserved as broadly as possible (perhaps subject to specific statutory exceptions created by the legislature, not by courts).
But a couple of days ago, I ran across another interesting provision -- Ohio's concealed carry status, which provides (Ohio Rev. Code § 2923.126(C)(1)) (emphasis added):
Nothing in this section shall negate or restrict a rule, policy, or practice of a private employer that is not a private college, university, or other institution of higher education concerning or prohibiting the presence of firearms on the private employer's premises or property, including motor vehicles owned by the private employer. Nothing in this section shall require a private employer of that nature to adopt a rule, policy, or practice concerning or prohibiting the presence of firearms on the private employer's premises or property, including motor vehicles owned by the private employer.
Does this statutory provision provide extra support for the district court's view, by implicitly assuming that employer power over employees' gun possession should extend only to the employer's property? Or should it be ignored, on the grounds that it merely restates one aspect of the employment-at-will doctrine, and other aspects -- such as the employer's power to fire the employee for using whatever products the employer might dislike (absent an express state statute restricting that power) -- remain untouched?
Related Posts (on one page):
- Firing Employee for Lawfully Carrying a Gun When on Company Business:
- More on Firing Employees for Possessing Guns Outside Employer Property:
- Employee Gun Possession (Outside Employer Property) Presumptively Protected Against Employer Retaliation?
Once you have the tort for firing against public policy, I don't see why you have to go hunting for statutory support for a right that's in the state constitution. The fact that this is even debateable highlights how gun ownership is treated as a second class right.
Imagine UPS fired somebody because they were engaged in an interracial relationship. I don't think we would then feel the need to dig up a statute and engage in another round of ejusdem generis v. exclusio unius est exclusio alterius.
This seems more of a reason, I think, that my initial solution was the correct one - certify the question to the Ohio Supreme Court.
I'm not sure where I stand on that issue. Pretty much all workplaces develop a culture and tend to seek employees that fit in. I have seen, and suspect most of us have, people 'pushed out' because they didn't fit in. I have not personally seen anyone fired because the company found out about something they said or did on their own time but never brought to the office with them. I could see interpreting such an action in a couple ways--as an intrusive and poor (but not illegal unless the legislature makes it so) practice separate from 'workplace culture', or as an extreme but probably rare extension of it.
I am still not completely happy with the reasoning of Shelley, which largely attempted to destroy a system that the federal government, through loan guarantee programs to private developers that required racially restrictive covenants had helped to create, but if liberals like the reasoning Shelley, they need to apply it consistently, or strike it down consistently.
Unless you also think free speech is "treated as a second class right", I'd say you need to get the chip off your shoulder. Employers are routinely permitted to fire people for making statements that are completely constitutionally protected (e.g., "My boss is an idiot."). Public policy bars against employee termination are patently held to pretty low levels unless there is also statutory authority against termination on those grounds (e.g., race or sex discrimination).
Suppose an employer is an environmentalist. They are opposed to fireplaces. Could they fire an employee if it is discovered that they have a fireplace in their home.
In short, how much power does your employer have to determine who they will and won't hire. Except for religion, national origin, and gender everything seems to be at will, in the abscence of a contract.
So is this a case of guns being uniquely protected by the constitution. So that it should read religion, national origin, gender and NRA membership.
2. Just Dropping By is generally quite right that the "discharge in contravention of public policy" tort has generally not been read as barring employers from firing employees for the employees' off-duty speech (except in one late-1970s Third Circuit case purporting to apply Pennsylvania law, a case that has since then been cast into doubt). So it's by no means the case that whenever a right is guaranteed by the state constitution against government abridgment, private firing of an employee for exercising the right is tortious. On the other hand, sometimes it is; for instance, Ohio courts have held that firing an employee for consulting a lawyer about a possible lawsuit against the employer is tortious, partly because of the state constitution's "courts shall be open" provision. That's part of what makes this area of the law so mushy.
In Ohio, carry is banned in all government buildings. College campuses allow guns to be secured in a car, but do not allow carry.
I'm not a lawyer, but I would think that in that scenario there is a reasonable nexus with a business concern. So for example, UPS can't reasonably claim that an employee's gun ownership is in opposition to its business, but Gun Control Inc. certainly could. And the NAACP has a better case for firing a Klansman (even though s/he somehow manages to keep it out of the workplace) than does Home Depot, and soforth.
Lawyers, does this make sense?
Here's an even more disturbing example- can an employee be fired for having an abortion?
As to the other examples in this thread, courts have held that firing somebody for an inter-racial relationship violates Title VII, so we don't need Shelley or the tort of wrongful discharge. The logic is, if, say, the employer fired a white employee for having a black paramour, but presumably wouldn't have fired a black employee for having a black paramour, then the white employee was fired because of race.
Also, off the top of my head, I don't know of any cases involving a non-religious institution firing a woman for having an abortion (religious institutions can get some exemptions from Title VII). But I would assume that practice could run afoul of Title VII's prohibition on sex discrimination (given that only women could have abortions). Interesting question, though.
"On the other hand, sometimes it is; for instance, Ohio courts have held that firing an employee for consulting a lawyer about a possible lawsuit against the employer is tortious, partly because of the state constitution's "courts shall be open" provision. That's part of what makes this area of the law so mushy."
EV, don't you think the nexus between that and the public policy rationale for tort is much different than the one in the UPS case? And isn't the one in the UPS case (relatively) more analageous to, say, a person making private speech to a non-lawyer off their corporate campus? (Would JDB's analysis change significantly, even in Ohio, if the person was fired from a corporate position for saying "the President's an a******" to the employer, or a family member of an employer, at a social event)? I don't think your counter-example is as relevant as you make it to be, in the end.
Still, I don't know if I completely disagree with you and the court as a matter of substance on the greater issue - but that's why I think certification was the proper response.
How about firing an employee because they donated money to a mainstream (i.e. non-LaRouchie, etc.) political candidate? Or because they put up a lawn sign advocating for that candidate? Or because they voted for that candidate? Or because they voted at all? How about if the "employees who vote get fired" policy only applies to minority employees?
My guess here is that the first two firings would be ok, while the last three would not. So, is owning a gun more like making a statement, or more like exercising the franchise? I think comparing the right to other constitutional rights should be the first step here; only after you decide that it doesn't measure up in that category should you have to resort to statutory support.
My personal policy preference would actually be for completely at will employment. But once you have the tort for firings against public policy, I don't see how you leave out the right to bear arms unless you just have a substantive problem with the right. It seems like it's pretty easy to exercise the right with zero impact on your suitability for employment (contrasted with speech that leads to termination, which arguably reflects on your fitness for the job).
Extending the exception to gun ownership would be a pretty broad expansion of the doctrine and open the door to lots of other restrictions on right to fire. I can't see a libertarian thinking much of this outcome.
Why does your example have to be mainstream? Just curious. I know you cannot be fired from a nonpolitical-appointed government position for supporting another candidate, and as a matter of course it would be difficult to see an employer firing a bunch of Democrats, but what about Communists? What about people who supported Iran?
I'm not sure about the answer - I prefer my example of calling the President a curse word, but I'm open to seeing whether there is law on the subject?
Donating money is of course a different animal - because of the corruption issue and potential violation of campaign finance law that would be implied in coercing certain contributions.
(It is most quite possible I've gotten some facts mixed up here.)
Well, a teacher at a Catholic School got fired for getting pregnant out of wedlock. Employers are also beginning to terminate employees who smoke (at home). Eugene, and the rest of you libertarians, are just fine with employment at will until the action involves guns.
In this case it looks like the only thing "public" about the parking lot was that it was a lot used by public who were dropping packages off at UPS, but was still on UPS property.
Most Catholic Schools have clauses in the contract for certain things, like getting pregnant out of wedlock.
So there is a difference between jobs that have a written contract between employer and employee and those that are a simple at will job.
Personally I am not fond of when employers can make a change in company policy that is not performance related and then start firing people.
So there is a difference between jobs that have a written contract between employer and employee and those that are a simple at will job.
And in this case there was apparently an ironclad policy--written into the union contract--against bringing guns to work, including company owned parking lots (the only factual dispute appears to be whether the parking lot is included in the definition "company owned"). If the employee loses on the factual issue (i.e., the lot is company property and he has violated work rules) he wants to the contract voided because it is contrary to public policy. In that way the school teacher scenario is perfectly analogous. A Religiously affiliated school, when it is providing a secular service, should not be able to dictate the morality of its employees.
Now, this was a 12(b)(6) ruling, from best as I can tell, and thus that portion of the case will be determined at a later date - for the purpose of the opinion, I think we can accept the (factually dubious) claim that the parking lot was "public" in the former sense.
Now, Clayton Cramer's attack on J.F. Thomas is absurd for a variety of reasons:
1) The rule prohibiting discrimination Cramer describes is a statutory right of action, not constitutional or common law.
2) Prior to the statutory discrimination Cramer describes, the right was available - indeed, if the statute was repealed, the (federal) right would presumably vanish with it.
3) There is no (explicit) statutory right of action in the case at bar.
4) The statutory right in Cramer's action does not rest, in any way, on whether the discrimination is private or public, only whether the discrimination is commercial in nature or not (an exception carved out by the Supreme Court, rather than by the statute itself, IIRC).
I would also ask the moderators to ask Mr. Cramer, as a matter of courtesy, to not inject his personal dislike towards homosexuals into every conversation he joins.
I'm not sure I understand this point:
"I am fine with employment at will, as long as this is a consistent position: employers get to fire someone for making gay porn in their off-hours, for example. But liberals would never accept that."
Is your point:
1) That you disagree with the Ohio decisions?
2) That someone here is being inconsistent? If so, can you describe who is being inconsistent, and what grounds you are making?
3) That so long as liberals have some disagreement amongst themselves as a large group (that you define), you are not required to hold any testable values, and thus can take inconsistent positions that are unncessary to defend or examine?
Or is there another interpretation available that I am missing?
What is your point? UPS has a policy that employees cannot bring firearms to work, including in their cars, apparently written into the union contract. If the car was parked in a lot that both the general public and employees use, it is still a "company owned" lot, but maybe the language in the contract or work rules are unclear. Apparently, this is an issue that the court is willing to let the trier of fact decide. What on earth does this have to do with racial discrimination?
I had that in there because I didn't realize just how narrow the action for firing in violation of public policy is, and I wanted to avoid any sort of "of course you can fire people whose support for certain candidates make out a prima facie case that they are, in fact, crazy..." hairsplitting. Apparently you can actually fire people for belonging to any party or no party (at some size of employer you might have a viable "company town" type of argument, but that's separate from the tort right at issue here), so the caveat was unnecessary.
I still think there's a reasonable argument that gun ownership is separate from work (like voting and abortion, and unlike pregnancy from speech) in a way that makes the court's decision reasonable. But, given the way the tort right is set up, I don't think it would have been unreasonable to go the other way either. Thank you to the various commenters on this thread for the education in employment law.
Getting back to the original question, I don't think the statute is that helpful; I've never seen an ejusdem generis v. expressio unius est exclusio alterius battle result in anybody actually being persuaded to change their position.
Maybe Cramer has made clear elsewhere that he's anti-gay, but I didn't get that from his comment in this thread. I took it as an example of a private activity that most people would find weird, but that doesn't impact the workplace in and of itself the way that, say, a pregnant unmarried teacher would impact a catholic school once she started to show.
FTR, the rest of you have convinced me personally that for good or ill, employers have broad discretion to fire employees for any reason ex some particular statutorily protected things, and that gun ownership is not one of those things. I join Jake in thanking you all for the cliffnotes on this subject.
The fact that something is separate from work normally shouldn't matter for the tort of wrongful discharge -- if anything, it should cut against the employee. If an employee is fired for reporting an employer's safety violation, that's often a good grounds for wrongful discharge. If the employee is fired for being a do-gooder or exercising some right unrelated to the workplace, well, that's the sort of thing that typically has been held to be the employer's perogative, under at-will.
Now, there are a line of cases under just-cause systems (union contracts and civil service rules, mostly), that hold that employer's only have a right to fire for off-duty conduct when it has a demonstrable impact on the employer (including but not limited to the employer's reputation). But that's under a just-cause system.
Finally, FWIW, there was a case involving a police officer who was making gay porn in his off-duty time, although he was using some police equipment (uniform, IIRC) to do it. Because he was a public employee, there was a constitutional free speech issue before the court. But he lost, because, as the court held, making gay porn was not speaking on a matter of public importance (a requirement for public employee speech to gain any protection); plus, it arguably brought the department in ill-repute. And I don't recall "liberals" getting all up in arms about this. So we can, I believe, chalk that reference up at least in part to Clayton's constant need to bring up homosexuals.
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True, but Ohio's "shall issue" concealed carry law does have an exception for colleges. Also for governmentally owned or occupied premises, places that are licensed to serve intoxicating beverages, and for houses of worship. Your permit is no good in those places. See Ohio Revised Code 2923.126(B). Section 2923.126(B)(5) states that the CCW permit does not permit the holder to carry in premises "owned or leased by any public or private college, university . . ." as well as any dormitory.
For those who think that the court carried the public policy exception to the at-will doctrine too far -- suppose the employee did not even own or possess a gun, but had applied for and obtained a ccw permit. Wouldn't allowing the employer to fire him for that reason contravene the policy behind the statute?
Check out this review of that book. Nancy Dowd, "Liberty vs. Equality: In Defense of Privileged White Males," 34 Wm. &Mary L. Rev 429, 432 (1993) (“Epstein’s biggest failure is his refusal to confront and analyze scholarly work that undermines or challenges the fundamental basis of his opinion”; Forbidden Grounds “is not an intellectual argument, it is a political polemic with little intellectual credibility.”)
The 'conspiracy' aspect of the law may be a problem but I suspect how much of a problem would depend largely on how badly the feds wanted to prosecute.
The example that I gave came to mind because the University of San Francisco (a Jesuit college) fired one of their deans some years back for making gay porn after hours.
Both involve Constitutionally protected rights and conflict between those rights and the rights of property and contract. What part of that don't you understand?
Also note that it seems somewhat likely that the judge will reverse course here after the facts have been developed. While the parking lot is likely company private property, since that wasn't certain at this point, the court had to assume the contrary.
Nobody is forcing the gun owner to work for this firm, and if the firm owner demands, as a condition of employment, that the employee not own a gun, then the gun-owning job-seeker should decline employment from that firm. If everybody in the community agrees, then the firm will either go out of business or change its policy on gun ownership. At least, I think that's how the Founders expected us to live.
Property rights and *voluntary* contract are the primal predicates for our society to work as designed.
I am not happy about having property rights trampled on by state law--even though I think the ban on guns in public parking lots is a bad idea. However, liberals are no position to oppose such a state law pre-empting private property rights, since they support laws that tell private property owners what they can do with respect to racial, gender, and sexual orientation discrimination.
Whatever position the courts are going to take on public accommodations with respect to race should apply the same way to gun rights.
Hmmmm. I cited a racial discrimination case that struck down private property rights, and mentioned a landmark California Supreme Court decision concerning the question of at-will employment. I gave a hypothetical that wasn't actually hypothetical at all. How does any of this demonstrate "personal dislike towards homosexuals"?
By the way, I manage to have friendly conversations with homosexuals on a pretty regular basis. Except for scheduling problems, I would have had dinner in Philly recently with a right-wing gay blogger that I know.
No, I don't think so. One of the cases that led to California adopting a ban on sexual orientation discrimination in employment involved a VP of one of the oil companies who unintentionally outed himself when he left the original to a party invitation on the photocopier at work. They didn't fire him for inappropriate use of the copier (although they could have, I suppose), but because they didn't want a gay VP.
"At will employment is not really an issue here, because it appears to be a union shop. Thus, UPS couldn't just fire the guy with no reason, but had to supply one. It changes the dynamic a bit when the employer can fire anyone w/o giving a reason, and the fired employee then has to find and prove a discriminatory reason."
That would be true if the plaintiff brought a case against his employer for a violation of the union contract, but that does not appear to be the grounds for his complaint - though it may be used as a defense. I'm not sure how relative this would be, other than to why, as a strategic matter, UPS provided a reason at all.
Clayton writes,
"However, liberals are no position to oppose such a state law pre-empting private property rights, since they support laws that tell private property owners what they can do with respect to racial, gender, and sexual orientation discrimination."
There's two serious problem with Clayton's statement, along with a third, more understandable problem.
1) It groups together "all liberals" in an absurd way. Not all "liberals" "support laws that tell private property owners what they can do with respect to racial, gender, and sexual orientation discrimination."
2) It improperly conflates the concept of whether (any particular) liberals support the IMPLEMENTATION of antidiscrimination laws vis a vis private employers relative to whether liberals support them as a matter of COMMON or CONSTITUTIONAL right - and while I'm sure SOME liberals might support that, this is going to be a subset of the people that actually fit the description of (1).
3) More understandably, it is my opinion that there's a substantial difference between discrimination between an innate characteristic - those that would get support under the equal protection clause of the Constitution, in a case against the government - and discrimination against those that simply practice some non-innate function - those that would only get support under the Due Process clause of the Constitution, or under the Court's inherent or statutory authority to fashion remedies for other substantive Constitutional violations.
"suppose the employee did not even own or possess a gun, but had applied for and obtained a ccw permit. Wouldn't allowing the employer to fire him for that reason contravene the policy behind the statute?"
To the degree that failing to give somebody time off to go to a political protest would, sure. I think the more relevant question is whether the government's actions and structure contravene the policy - i.e., would the Court's decision going the other way substantially interefere with the policy.
I think that's a hard conclusion to find, unless, for instance, the government was providing some incentive to UPS to make such types of terminations (or, obviously, if the government was the employer).
But because there is no federal issue here, I still think the wisest solution would have been state certification - a policy that also has the virtue of comity and federalism.
Same here.
I know nothing about the Coors case, but the employee of a Miller distributor who was fired consequent to having consumed Budweiser at a bar after work did so in a manner which was not private behavior. He agreed to be photographed for a "tavern of the week" spot and was thus deemed to be promoting, not just consuming, the competitor's product.
I'm not sure I see the parallel. I'm talking about what an employee does on the employee's time and off company premises. You are talking about what an employee would like to do on scheduled work time, but cannot because the employer will not excuse the employee from work.
Likewise, any employer policy that has the effect of diminishing an exercise of some value that the government has endorsed would "contravene public policy" - but that does not mean it would fit into the common law exception to employment at will.
It can be. It all depends on the party.
Personally, I "know it when I see it."
But natural rights (which the RKBA arguably is) are 'inalienable', i.e., can't be transferred away. So such a contract provision would be invalid.
You're ignoring what it means to be inalienable. By your definition, because "freedom" is unalieable, all jobs that make you stay at a particular place (i.e. an office or a cube) ON PENALTY OF LOSING YOUR JOBS would be illegal.
If RKBA was unalienable, it meant one couldn't trade away the right going forward for a present sum. It does not mean that one cannot be paid going forward for his decision to not use that particular right.
Or to put it another way, I could join a reality tv show that required me to be locked in a prison cell. What I could *not* do is give up my right to quit at any time and walk out.
If you take that approach, the excercise of almost any constitutional right could not be the basis of a discharge -- the expression of a political opinion, for example. That's a long way from at-will employment. I personally don't have any problem with a just-cause discharge rule, but libertarians traditionally do.
A libertarian would say that these "inalienable rights" are only rights vis-a-vis the state. So, just like a homeowner could say, "you can't come into my house with a gun," so could an employer.
Now, one of my problems with libertarian thought is that it generally equates employers with homeowners in that way, but that's what you would hear.
I have to wonder at your definition of "liberal" then. Antidiscrimination laws concerning race, gender, and sexual orientation are essential components of modern liberalism. Conservative and libertarian arguments against such laws has been based on concern about the description of private property rights--not support for such discrimination.
Okay, there are probably liberals who only support this as a matter of public policy, and don't believe that there is a constitutional right against such discrimination. In practice, how will liberal judges decide cases that involve such anti-discrimination laws?
Hmmm. One right is protected by the Ohio's Constitution's right to keep and bear arms (and arguably by the Second Amendment); the other is protected by the equal protection clause of the 14th Amendment. What makes one of them more special than the other?
They're both actions done away from work. Are you going to seriously suggest that liberals regard making porn films as something different from going to a party? To the extent that liberals would see a difference, it would be that making porn films is protected as "expressive conduct" while parties--well, that's a bit of a stretch.
By the way, the California courts have taken the position that paying someone to have sex in a porn film isn't prostitution, because it is constitutionally protected freedom of speech: the essence of liberalism.
Uh, yes. Of course. You have bizarre ideas about liberals.
Can someone explain the law that allowed the police to conduct this search?
I have no idea what basis you have for a comparison. You make a lot of baseless blanket statements, though, so why argue over this one? I'll take your word for it.
Liberals actually regard the making of porn films as Constitutionally protected
So do libertarians and a lot of conservatives (such as EV, according to his radio appearance). Not liking something is not the same thing as denying its protection under the constitution. But no one considers pornography to be protected to the same extent as going to a party. Insofar as "liberals" have one, monolithic position on the issue (we don't), we consider (among other things) the commercial nature of speech when analyzing Constitutional protections.
You have very, very low standards for accuracy when characterizing the views of others.
Clayton, have you considered that, living in California, you know an unrepresentative section of liberals?
EV is no conservative. If there's any doubt about this, compare his stated positions about bestiality laws, same-sex marriage laws, drug laws, and abortion to the positions that conservatives take. He's a libertarian.
How many conservatives can you name who believe that obscenity is Constitutionally protected? This is one fundamental difference between libertarians and conservatives.
No, it's not. But the Court has pretty consistently agreed that obscenity isn't Constitutionally protected. Most of the dispute has been about what constitutes obscenity.
You might want to talk to the ACLU. The only category of pornography that the ACLU considers unprotected is child pornography in which children have been used. Virtual child pornography, for example, they have defended before the Court.
You better talk to the ACLU about this. You aren't much of a liberal.
You wouldn't be a liberal anywhere that I have lived. You might be characterized as a moderate, but you are no liberal.
They both take place away from work. Both are legal activities. One of them has so much Constitutional protection that making porn (according to the liberals on the California Supreme Court) trumps violation of the state's prostitution law. Clear enough?
Name me a conservative (not a libertarian like EV) who agrees that obscenity is Constitutionally protected. Can you find even one? Much of the dispute about pornographic materials over the period 1960-2000 was precisely this: what are the limits of the freedom of speech and press clauses? Obscenity is not protected, and conservatives have argued that while some materials are probably protected (the scientific, cultural, or literary value argument), there is much that is not. For example, depictions of sex with animals, child pornography (virtual and real), sadomasochism, among others.
I'm not the one arguing for imposing on private property rights. I'm arguing that liberals are in no position to suddenly argue that private property rights take precedence, when they don't argue for that with respect to anti-discrimination laws.
Clayton, have you considered that, living in California, you know an unrepresentative section of liberals?
Not irrelevant at all. In the time off case, there is a definite non-pretextual work related interest of the employer, and the employee's discharge is not in retaliation for the exercise of the employee's right.
So, where are the ACLU briefs arguing that commercially produced and distributed porn doesn't deserve the same Constitutional protection as a lone leafletter?
I am beginning to wonder about the quality of education some of you are getting in law school when you argue that:
1. Conservatives and liberals both agree that porn is protected by the First Amendment.
2. Porn has lesser protection than other forms of free speech or press because it is commercial in nature.
You've drifted off topic again. We weren't discussing the protection of the finished product, but whether the production of it is speech. You equated manufacturing pornography with going to a party, remember? You said that liberals see the two as identical?
I challenge you to find me a liberal who argues that a moneymaking side venture, intended to be profitably distributed, is as protected as free association at a party. Liberals aren't unwilling to consider an employer's right to not be associated with pornography. I seem to recall, for instance, a distinct lack of outrage at the firing of the cop who used his uniform in his off-duty on-camera appearance. This is entirely aside from most liberals' willingness to consider community standards &c. when assessing the constitutional implications of pr0n.
(I realize that if you do find such a liberal, and I'm sure there are some, you'll likely assume that all
pedophilesnecrophiliacshomosexualsliberals believe the same thing. I've resigned myself to the proposition that you just aren't going to accept that "liberals" are a large and diverse group of people. Why, some of us aren't even all that fond ofon-camera group sexparties.)Conservatives and liberals both agree that porn is protected by the First Amendment.
In fact I know several textualists who don't see any exception in the First Amendment for naughty pictures--even moving pictures. I can't cite them, as they aren't published, but fortunately you seem to have established an "I know lots of people" exception. I appeal to that.
Okay, then explain to me why porn production as free speech trumps California's prostitution law. Would, "I was throwing a party, a form of protected free association" be sufficient to trump a drug law, or a noise ordinance?
It wasn't a private party, but a governmental agency. That's one difference.
What? It is conservatives who argued in favor of community standards for determining what constitutes obscenity, and liberals who were upset about the manner in which Miller v. California (1973) allowed community standards to be used in defining obscenity. As this rather authoritative source points out: "In determining whether material appeals to a prurient interest or is patently offensive, the trier of fact, whether a judge or a jury, is not bound by a hypothetical national standard but may apply the local community standard where the trier of fact sits."
1. Textualist doesn't necessarily mean conservative.
2. I guess they would also read the First Amendment as striking down the treason statutes, and all civil liability for slander and libel. Hence the most obvious problem with textualism, which is rather like Biblical literalism in its simplicity and deficiency.
Then you pull a really weak argument, which I trust you know is weak -- conflating pornography with obscenity. Pornography, including Playboy type pictures, is protected, while obscenity is not. You recognize this and the question is line drawing, and plenty of conservatives think that Playboy type pictures are protected speech.
If you meant obscenity in your earlier post, you should have said obscenity.
Your comparison to workplace discrimination is also odd. That was legislative action, this would involve judicial action. Are you arguing for judicial activism here?
I have no doubt that some liberals can be hypocritical on standards for wrongful discharge. So can some conservatives. That is hardly noteworthy, ideologues being unprincipled.
That's what you don't seem to get: does private action that interferes with a constitutional right survive? The courts in some cases have decided that constitutional rights trump private action (the Shelley case), and in some cases statute puts Constitutional rights above private property rights. The question of how far the right to terminate someone for actions away from work goes is part of this same question. I can see a clear qualitative difference between throwing a wild party and making porn films. But both are actions taken away from work. In two cases in the Bay Area, employers took actions based on what their employees were doing away from work. One was making gay porn (although I don't think straight porn would have made the Jesuits any happier); the other was engaging in homosexual activity in his private life.
Oh, really? Look, I don't find those sort of pictures particularly offensive, and I would not seek to prohibit them (except perhaps for display to minors), but I am hard pressed to see that they qualify as protected speech. From an originalist standpoint, these would certainly qualify as indecent by the standards of the 18th century. Now, I'm sure Ben Franklin would smirk a little while condemning them as destructive to public morals (and ask if he take them back to his room for further study), but protected speech? Nope. Not a chance.
The terms are used sloppily as though they are interchangeable, and yes, they are not. Much of what is popularly called "porn" is clearly obscene by the standards adopted in Miller, and there was quite a little screech from liberals a year or two ago when the Bush Administration started to actually prosecute distribution of films that showed bestiality, sadomasochism, and simulated rape/torture/murder of women. There are times that I have this odd feeling that a lot of you have no idea of the degrading and completely socially unredeeming crap that is floating around. (But ask the Virginia chapter of ACLU's former president--he can show you some truly repulsive stuff, as soon as he gets out on bail.)
Actually, the lawsuit against Pacific Telephone really qualifies as judicial activism. Openly gay is just not a form of political activity within the sense that the Unruh Civil Rights Act intended. The Shelley decision could be regarded as judicial activism in a way, although there's another way of seeing it as being derived from the intentions of the Civil Rights Acts passed around the same time as the 14th Amendment.
What I am arguing for is that liberals should either accept that the state has the authority to interfere with private businesses in the pursuit of Constitutional rights (such as prohibiting discrimination in employment and public accommodations, and having a gun in your trunk), or they should take a consistent position that the government does not have the right. This case by case approach when dealing with enumerated Constitutional rights is hypocrisy.
Huh? Ideologues are generally highly principled. Some of the excuses I've heard here show that there are no principles involved at all--just a desire to disarm law-abiding adults by invoking private property rights, while ignoring them completely if it gets in their way of their pet group or cause.
Why should they do that? It's far more enlightening to give Mr. Cramer the rope he needs to hang himself. If the moderators didn't allow him his rants, some people just might take him seriously.
Shouldn't common sense/understanding play a role?
If the parking lot is only for employees then a benefit was being given in exchange for giving up the right to have the gun, even in the car.
But if the parking is open to employees and non-employees, ie an open access area, would not the restriction be understood as a prohibition to carry the weapon on his person only? Is there a sign posted at the entry of the parking lot? Is there parking available off premises?
Should be:
If the parking lot is only for employees then a benefit was being given in exchange for giving up the right to have the gun, even in the car, while in company's property.
Could you point to the "rant" in this thread to which you are referring?