IP Law Chat : IP Law Chat -- Hendricks & Lewis, intellectual property, trademark, copyright and technology attorneys

In July 2000, George Villegas and several other plaintiffs, all of whom are members of the Top Hatters Motorcycle Club, attempted to attend the Gilroy Garlic Festival wearing vests that included an image of a skull with wings and a top hat with "Top Hatters" written above the hat and "Hollister" written below.  Pursuant to an unwritten dress code of the Gilroy Garlic Festival Association, a private non-profit corporation, prohibiting "gang colors or other demonstrative insignia, including motorcycle club insignia, an on-duty Gilroy police officer was asked by the festival's chair of security (an off-duty Gilroy police officer) to remove the Top Hatters from the festival.

The Top Hatters then sued the City of Gilroy, the Gilroy Garlic Festival Association and the individual police officer under Section 1983 for violation of their civil rights.  The District Court granted summary judgment in favor of the City and the Festival Association, concluding that wearing the Top Hatters vests was neither expressive conduct nor expressive association protected under the First Amendment and that the Festival Association was not a state actor.  A three-judge panel of the Ninth Circuit affirmed, concluding that wearing the Top Hatters vests was subject to expressive conduct analysis but found no First Amendment violation.  The panel did not reach the state action issue.

The Ninth Circuit then ordered the case to be heard en banc. 

This time around, the Ninth Circuit again affirmed the grant of summary judgment but did so on the ground that the Festival Association was not a state actor and that "[b]ecause there is no constitutional violation, there can be no municipal liability."  Unfortunately, the Ninth Circuit did not reach the question of whether wearing the Top Hatters vests and insignia constituted expressive conduct (and the three-judge panel's decision addressing that issue was withdrawn and designated non-precedential and non-citable).

You can find the Ninth Circuit's opinion, including two dissents, here.

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In May 2007, Tara Richerson was transferred to a new position with the Kitsap County School District that included responsibilities with a new instructional coaching model where she would work with teachers to enhance their professional development.  The coach's role was to be a mentor and develop a "trusting" and "confidential" relationship with the classroom teachers.

Ms. Richerson also maintained a blog in which she recounted her observations as an employee of the school district.  In one entry, she commented as follows on the person hired to replace her when she was assigned to her new position:

Save us White Boy!
I met with the new me today: the person who will take my summer work and make it a full-time year-round position.  I was on the interview committee for this job and this guy was my third choice . . . and a reluctant one at that.  I truly hope that I have to eat my words about this guy. . . . But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him. . . He comes across as a smug know-it-all creep.  And that's probably the nicest way I can describe him. ... He has a reputation of cra**ing on secretaries and not being able to finish tasks on his own. ... And he's white.  And male.  I know he can't help that, but I think the District would have done well to recruit someone who has other connections to the community. ... Mighty White Boy looks like he's going to crash and burn.

When the school district learned of the blog entry, Ms. Richerson was verbally reprimanded for violating the confidentiality required of a member of an employee interview team and a confirming letter was placed in her personnel file.

At some point, the school district also received a complaint from a district teacher and lead union negotiator about another entry on Ms. Richerson's blog, which the teacher construed as a personal attack on her.  The entry apparently included the statement, "What I wouldn't give to draw a little Hitler mustache on the chief negotiator."  The school district then advised Ms. Richerson that she was being involuntarily reassigned from her new position to that of a classroom teacher.

Ms. Richerson then brought suit in the Western District of Washington claiming that the school district had violated her civil rights by reassigning her in retaliation for the exercise of her First Amendment free speech rights.

On cross-motions for summary judgment, the District Court disagreed, concluding that Ms. Richerson's speech did not meet the "public concern" test and was therefore not protected.  The District Court noted that the government has a "freer hand" in regulating the speech of its employees and concluded that the proposed mentoring relationship between Ms. Richerson and other teachers envisioned in her new position would have faced "severe difficulties" had she not been reassigned following her blog entries.  In concluding that Ms. Richerson's speech on her blog did not meet the public concern test, the District Court also noted that "it was racist, sexist, and bordered on vulgar" and characterized her behavior, in part, as "salacious" and "mean spirited."

You can read the District Court's full opinion here and the complaint and answer here and here.

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Despite the presence of a number of amici curiae including the Student Press Law Center, The American Society of Newspaper Editors, The Associated Collegiate Press and The Society of Professional Journalists, the Tenth Circuit affirmed the dismissal of a suit brought by student editors of the Kansas State Collegian over the removal of the student newspaper's faculty advisor.

In Lane v. Simon, the Collegian became involved in a controversy when student groups and faculty at Kansas State University claimed that the newspaper contained inadequate diversity and minority news coverage.  Although the student editors attempted to address the concerns in two public forums, the criticism continued, including a protest march and rally that called for the removal of the newspaper's faculty advisor.

Not long thereafter, the chairman of the board of the not-for-profit corporation that published the paper and the director of the School of Journalism and Mass Communications at KSU wrote a letter to the dean of the College of Arts and Sciences recommending that the newspaper advisor not be reappointed.  According to the letter, the recommendation was based not on the controversy over the newspaper's diversity news coverage but rather as the result of a "content analysis" conducted by the chairman in which he compared the Collegian with six other college newspapers.  The chairman did not believe the Collegian fared well in this "content analysis," concluding that the paper's "news reporting and writing are demonstrably weaker than news coverage in peer college newspapers," despite the paper's receipt of a number of national awards over the years.  Although the newspaper advisor did not make final content decisions for the paper, the chairman concluded that the advisor, rather than the student staff, was to blame for the "sub par scope and quality of news coverage."

Following this recommendation, the dean informed the newspaper advisor that he was being removed from his position as advisor and being assigned additional teaching duties although his salary would remain the same.  The newspaper advisor and two editors of the Collegian (but not the not-for-profit corporation that published the paper) then sued the chairman and dean in federal district court seeking a declaratory judgment that the defendants' actions violated the First and Fourteenth Amendments as well as Kansas state law, and requesting an order enjoining defendants from removing the advisor or otherwise interfering with the governance of the corporation that published the student newspaper.

The defendants successfully moved to dismiss the suit on several grounds, however, including that the constitutional claims failed because the defendants purportedly based their decision to remove the advisor based on the quality of the newspaper rather than its content and that the advisor lacked standing and had not alleged a violation of a federal right because his right to freedom of the press was not affected as he exercised no control over the content of the paper.  You can read the District Court's opinion here.

Unfortunately, the Tenth Circuit did not address these conclusions by the District Court because it concluded that the case was moot as the newspaper advisor did not appeal the dismissal and the two student editors had since graduated and no longer worked on the Collegian.

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The case of Jean v. Massachusetts State Police, No. 06-1775 (1st Cir.) is one of those cases that leaves you wanting to know more about what was really going on between the people involved.

In that case, Mary Jean, described as a local political activist in Worcester, Massachusetts, had a website containing information critical of the former county district attorney.  In 2005, she was contacted by Paul Pechonis, whom she had never met, who told her that eight armed state police troopers had arrested him in his home on a misdemeanor charge.  The arrest had been audio and videotaped by a motion-activated "nanny-cam" and he provided a copy of that recording to Jean who then posted the recording on her website along with an editorial critical of the former county district attorney's performance in office.

The State Police ultimately discovered the recording on the website.  They wrote a letter to Jean telling her that her actions violated state law and were subject to prosecution as a felony, and that if she did not "cease and desist" within 48 hours from posting the recording, the police would refer the matter to the district attorney for investigation and possible prosecution.  The State Police later clarified their position by a second letter to Jean, stating that she would not be in violation of the law if she removed the audio portion of the recording from the website.

Jean apparently did not remove the recording from her website and instead filed a complaint in federal district court seeking a temporary restraining order and injunctive relief precluding the government officials from threatening her with prosecution or enforcing the relevant state law against her based on her right to free speech under the First Amendment.  The District Court granted Jean both a TRO and a preliminary injunction finding that, based on the Supreme Court case of Bartnicki v. Vopper, 532 U.S. 514 (2001), Jean had demonstrated a likelihood of success on her First Amendment claim because she had played no part in the allegedly unlawful recording of the video, she had obtained the recording lawfully, and the video related to a matter of public concern.  The First Circuit agreed with the District Court, ultimately finding that, because Jean's publication of the recording on the website was entitled to the same First Amendment protection as that involved in Bartnicki, she had demonstrated a likelihood of success on the merits and therefore affirmed the grant of a preliminary injunction.

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