First Amendment

Attorney Ethics Grievance Used to Avoid First Amendment Protections to Arguably Thwart Harsh Criticism of Expert Witness — Defamation Libel and Slander Lawyers Near Chicago — Top Defamation Libel and Slander Attorneys

February 1, 2016 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

In order to file a lawsuit against an individual or organization alleging violation of the law, the plaintiff must be able to allege specific and clear violations of the law, as well as actual damages the plaintiff suffered as a result of the alleged violation. This is as true of defamation lawsuits as it is of any other law.

Although the First Amendment protects every citizen’s right to free speech, it does not allow public statements about other people who are public figures that are intentionally or deliberately false and accuse of them of certain types of misconduct and prohibits false statements against ordinary people that wrongly accuse them of certain types of misconduct. In order to be considered defamatory, a statement has to be made publicly, and with the result that the target suffered damage to their public reputation and/or career. Opinions and general rhetoric do not qualify as defamation. Continue reading ›

Baseball Players Claim That They Were Falsely Accused of Steriod Use and Sue for Libel — Chicago Libel Defamation and Slander Lawyers Near Oak Brook — Libel Slander and Defamation Lawyer Near Chicago

January 8, 2016 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

With steroids running rampant in the world of professional athletes, many people just assume that most, if not all, prominent athletes are using some sort of drug (or drugs) to artificially enhance their performance. At the same time, many people who idolize certain athletes and look up to them as role models are crushed when they find out these athletes have been taking drugs to gain an unfair advantage. The field of professional athletes is extremely competitive, and when millions of dollars are on the line, the temptation to do whatever it takes to be the best can sometimes be too much to resist.

But all artificial performance enhancers are banned from professional sports. As a result, when an athlete is caught using illegal drugs, it usually means the end of their career. Because using the drugs is both immoral and illegal, any accusation of drug use must be taken very seriously. Continue reading ›

Florida State Starting Quarterback Threatens Libel Suit Against CNN — Best Chicago Libel Slander and Defamation Lawyers Near Oak Brook

December 29, 2015 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Despite the schoolyard saying, words can hurt you. Negative information that gets spread through the public can affect both your personal and professional lives, which is why legislators have taken steps to protect citizens from language that has the potential to be harmful.

But the U.S. Constitution promises all its citizens the right to free speech. This is because the founders of our country wanted the people to feel safe to criticize public figures, including politicians. The idea is that, if people feel free to criticize public figures, it allows public discussion of those figures. The law asserts the people’s right to free and open discussion of the people they are voting to govern them because uninhibited discussion allows the people to make the most informed decisions when they go to the voting polls. Continue reading ›

Cosby Case Proves that the Line Between Freedom of Speech and Defamation Can Be a Fine One — Best Defamation Libel and Slander Lawyers Near Chicago

October 19, 2015 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

The line between freedom of speech and defamation can be a fine line at times. Although the First Amendment to the United States Constitution allows us to speak our minds, it does not give us total immunity when saying things that have the potential to seriously damage another person’s reputation and/or career.

That line is again being contested in a current defamation lawsuit against Bill Cosby. Three women, Tamara Green, Therese Serignese, and Linda Traitz, who are just three of dozens of women who claim they were sexually assaulted by Cosby decades ago are now filing a lawsuit against the entertainer for defamation.

The lawsuit alleges Cosby’s representatives damaged their reputations by denying their allegations of sexual assault in language that was sometimes disparaging. They claim their accusations were dismissed as “ridiculous claims” and “absurd fabrications” to give two of the shorter alleged remarks. The lawsuit alleges these comments were intended to discredit the victims. One statement allegedly touched on Traitz’s criminal and personal record to discredit her allegations. Continue reading ›

Supreme Court Opens the Floodgates to Striking Down Certain Statutes that Regulate Speech — Top Chicago area libel defamation and slander lawyers near Wheaton and Naperville

October 12, 2015 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

It all started with a little law that discriminated against signs for church services in favor of signs promoting political candidates. It’s clear why citizens would take exception to such a law. What’s less clear is how the Supreme Court, in its ruling on the matter, managed to wreak havoc on all laws regulating signs, labels, and even automated phone calls.

Not only did the Supreme Court invalidate the law in question, but it has forced lower courts to invalidate on issues as unrelated as panhandling. Continue reading ›

Supreme Court Hears Oral Argument on First Amendment Rights Relating to Social Media and Internet Publications — Top Chicago Libel Lawyer Near Hinsdale

February 5, 2015 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

The first amendment to our constitution provides us with an invaluable protection to say anything we want – or at least almost anything we want. Judges and attorneys frequently have to balance the rights granted by the first amendment with their duty to protect citizens of the United States. In certain instances, such as injurious false statements (defamation) or threats, protecting individual citizens takes priority over the right to free speech. Defining that line is something courts continue to struggle with.

In one lawsuit currently being argued before the Supreme Court, Anthony Elonis faces the possibility of jail time for posting violent song lyrics about his wife and children on the Internet. Elonis posted these lyrics under the rap persona of Tone Dougie, but he did not keep his true identity a secret. Continue reading ›

Alderman’s Libel Case Thrown Out

January 3, 2015 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Anyone who runs for office would be well-advised to prepare themselves for some mud-slinging. Anyone who lives in the United States cannot help but be exposed to political candidates accusing each other of various indiscretions and dishonesties. These harmful statements are allowed to go unchecked because of the freedom of speech granted to all citizens of the United States under the First Amendment of the Constitution.

Although intentionally defaming an individual can be punished under the law, there are limits to the instances in which this can happen. Most courts will protect language referring to a public figure, such as a celebrity or politician, because allowing free speech about public figures is considered to be in the public’s best interest. Promoting free discussion helps keep citizens informed about people and events that could potentially affect them. Continue reading ›

Appellate Court Gives New Life to Professor’s First Amendment and Wrongful Termination Lawsuit

December 15, 2014 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

It is somewhat common for workers who have been fired to claim that their termination was a result of their employer retaliating against them for undesirable behavior. Proving such an accusation in court is another matter. Most states have “at-will” employment laws, which means employers can terminate a worker’s employment for no reason.

An employee who is not an at-will employee is considered to have a property interest in her employment. Under Illinois employment law, an employee can be seen as having a property interest in her employment if her employment contract provides “that termination will only be for cause or otherwise evince mutually explicit understandings of continued employment.”

In a recent legal dispute between Moraine Valley Community College and one of its former adjunct professors, the two parties disagreed as to whether the professor could be considered an at-will employee. The professor, Robin Meade, was also acting as the head of the Moraine Valley Adjunct Faculty Organization (MVAFO). The college had requested that Meade and other union leaders write to the League for Innovation in the Community College (LICC) to support Moraine Valley’s reapplication for the LICC board.

Instead of supporting the college, Meade alleegdly wrote a letter to the LICC that explained her reasons for not wanting to do so. Among these reasons, she accused the college of allegedly treating adjunct faculty as “a disposable resource” and “a separate, lower class of people.” Meade provided evidence which she said support this claim, citing the fact that the administration allocated more resources to full-time faculty and staff, and left adjuncts “to fend for themselves.” She also criticized the college for refusing to let adjuncts work on an hourly basis, as according to her that prevented them from spending extra time to tutor students. Continue reading ›

Supreme Court to Decide if Threats Made on Facebook in Rap Lyrics are Protected Speech Under the First Amendment

August 8, 2014 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

As Americans, we love to cite the First Amendment of our constitution any time someone doesn’t like what we say. The one that says that we can say whatever we want without worrying about prosecution. In reality, though, that’s not quite true. The First Amendment does indeed protect freedom of speech, but not all forms of speech are protected under the Constitution. For example, libel, incendiary speech (a.k.a. “fighting words”), and “true threats” are not protected under the Constitution. The problem can be discerning what makes a “true threat”, and the difficulty has multiplied with the use of social media. Without body language and tone of voice to indicate whether something is meant earnestly or in jest, people can find themselves in trouble for saying the wrong things. In a recent case, which will be heard by the Supreme Court in the fall, Anthony Elonis posted some rap lyrics to his Facebook page after his wife, Tara Elonis, left him, taking their two children with her. Like most rap, Elonis’s lyrics were crude and brutally violent, including a suggestion for his son to consider a Halloween costume that included Tara’s “head on a stick”. Anthony Elonis also reportedly fantasized about killing an F.B.I. agent and warned that “Hell hath no fury like a crazy man in a kindergarten class.” Continue reading ›

Facebook Posts Get Government Worker Fired

December 17, 2013 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Courts recognize that the government has an interest in regulating certain forms of speech. However, that interest does not cancel out each citizen’s right to free speech as granted under the First Amendment of the U.S. Constitution. When faced with a lawsuit brought under the First Amendment, the courts will therefore consider the interest of the government in regulating speech against the constitutional rights of the person who made the speech.

In a recent lawsuit which was filed under the First Amendment, a government worker filed a lawsuit against her former employer, the Oregon Department of Health Services (DHS) for alleged wrongful termination as a result of posts which she uploaded onto her Facebook page. The plaintiff, Jennifer Shepherd, worked in child protective services and determined child custody cases. As part of her job, she was regularly called in to court to testify in custody cases.
On more than one occasion, Shepherd posted to her Facebook page derogatory remarks about individuals on public assistance. These included a suggestion that those on public assistance be forbidden from owning a flat screen television, banning people who are on public assistance from having any more children, and sterilizing people who have previously had their parental rights terminated. The DHS conducted an investigation into these posts, after which it terminated Shepherd’s employment.

Firing an employee in retaliation for exercising their right to freedom of speech is against the law. To determine whether or not an employee was wrongfully terminated under the First Amendment, the courts are provided with a test consisting of five elements. The court used this test in deciding whether the DHS violated the law in terminating the plaintiff’ employment as a child protective services worker. Specifically, the court focused on the fourth element of the test, “whether the state had adequate justification for treating the employee differently from other members of the general public.”

Despite having made these negative comments, Shepherd admitted to the court that, as part of her role in child protective services, she was “to be a neutral appraiser of the settings in which the children live.” She was not supposed to consider the employment status, religious or political beliefs of the adults in the home, or concern herself with how they chose to spend money or furnish their home. Shepherd also affirmed that she was aware that the majority of the parents being assessed by the DHS were on Temporary Assistance to Needy Families, food stamps, and/or the Oregon Health Plan.

The DHS argued that, as a result of the derogatory comments that Shepherd posted onto her Facebook page, she would immediately be impeached by the defense attorney every time she was called to testify in court. This prevented her from performing an important part of her job. Another result of the Facebook posts was the fact that two coworkers expressed doubt as to Shepherd’s ability to effectively perform her job. As such, the DHS argued that the Facebook posts caused “substantial disruption” in the workplace and the court agreed.

The First Amendment provides greater freedom of speech if the speech in question is “intended to help the public actually evaluate the performance of a public agency” or if it is spread to a wider audience. The court ruled that the Facebook posts that Shepherd uploaded did not fulfill either of these requirements. Shepherd stated that the posts were meant to be humorous and ironic rather than informative. As such, the court ruled that they are not qualified for special protection under the First Amendment. As far as spreading the information, the plaintiff had customized her Facebook settings such that only her designated Facebook friends could view her posts. Therefore, the posts did not meet the second requirement for protection under the First Amendment. The court granted the plaintiff’s motion for summary judgment and dismissed the case.

You can view the Court’s full opinion here.