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NLRB vs. Whole Foods: 'Black Lives Matter' masks and the First Amendment — FAN 324

Whole Foods spokesperson: "We do not believe we should compromise [our workplace mission] by introducing any messages on uniforms, regardless of the content, that shift the focus away from our mission.”
Black and white face protective masks are on white background. The text: Black lives matter is on black mask. Concept of protest against racism and violence

Sometime back, a group of employees at Whole Foods in California, Massachusetts, New Hampshire, Washington state, and elsewhere elected to give visual expression to their political views. To that end, they donned "Black Lives Matter" masks at work. Whole Foods (a subsidiary of Amazon) took exception and barred such displays in its workplace. In 2020, this group sued their employer on the grounds that, per the National Labor Relations Act, they were unlawfully being threatened with being fired for wearing the BLM masks. They brought a class action lawsuit in Federal District Court in Massachusetts.

Shannon Liss-Riordan (Lichten & Liss-Riordan, P.C.)

As reported in The New York Times, and according to Shannon Liss-Riordan, the lawyer for the plaintiffs: “We are asking that the court order Whole Foods to allow the employees to wear the Black Lives Matter masks and other apparel at work.” For its part, the National Labor Relations Board claimed the Whole Foods policy was a violation of federal labor laws, which permit employees to participate in "concerted activities for their mutual aid and protection." 

As recently reported by Jenna Romaine for Changing in America, in mid-December:

Whole Foods stated in its filing, "By singling out the phrase 'Black Lives Matter' the General Counsel [of the NLRB] is impermissibly favoring, and requiring that [Whole Foods] favor, certain expressions of political speech over others in its retail grocery stores."

The filing added, "The General Counsel seeks to compel employer speech by [Whole Foods] in violation of [Whole Foods'] rights under the First Amendment to the United States Constitution, and enforcement of any Order from the [NLRB] to compel such speech would violate the Constitution."


Upcoming oral arguments in two First Amendment cases

  • Mathew Staver, counsel of record for Petitioners (Wikipedia, Gage Skidmore)
    Jan. 18Shurtleff v. Boston — The three issues raised in the case are:

(1) Whether the U.S. Court of Appeals for the 1st Circuit’s failure to apply the Supreme Court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with the Supreme Court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the establishment clause is not a defense to censorship of private speech in a public forum open to all comers;

(2) whether the 1st Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with the court’s decisions in Matal v. Tam, Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Pleasant Grove City v. Summum; and

(3) whether the 1st Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with the Supreme Court’s precedent in Matal v. Tam, and circuit court precedents in New Hope Family Services, Inc. v. Poole, Wandering Dago, Inc. v. Destito, Eagle Point Education Association v. Jackson County School District and Robb v. Hungerbeeler.

(1) Whether appellees have standing to challenge the statutory loan-repayment limit of 52 U.S.C. 30116(j); and

(2) whether the loan-repayment limit violates the Free Speech clause of the First Amendment.

Opinion below: Ted Cruz for Senate v. Fed. Election Comm'n (DC Cir., 2020)

Op-ed on the First Amendment and the Jan. 6 defendants

Teri Kanefield (University of Chicago)

Justice Department officials . . . are fully aware that those accused of planning and inciting the insurrection will raise a First Amendment defense. So Garland, in his speech, issued a warning: We know you will accuse us of bringing politically motivated charges, and we know you will try to shelter behind the First Amendment — and we intend to preempt such claims.

To take an example of how this might be done, constitutional law scholars have argued that Trump’s words, on their face, fell under an exception to the First Amendment carved out by the Supreme Court in Brandenburg v. Ohio. Under the standard given in Brandenburg v. Ohio, Trump’s remarks were “directed to inciting or producing imminent lawless action and . . . likely to . . . produce such action.”

During the past week, we’ve had hints that the House committee investigating the insurrection is gathering evidence that rebuts Trump’s claim that he said “be peaceful” so therefore he meant “be peaceful.” We learned, for example, that a former White House staffer told the committee Trump resisted adding “stay peaceful” to one of his tweets during the insurrection and was “very reluctant to put out anything when it was unfolding.” Instead, while watching the violence on television, Trump was deliberately “letting it play out.”

First Amendment Watch issues teacher's guide on disinformation and the First Amendment 


Disinformation is more pernicious and widespread today than at any other point in history, largely because of social media and the Internet. For instance, it is now widely known—and verified by the U.S. intelligence community—that Russians interfered with the 2016 presidential election. Russian hackers released politically damaging information on the Internet and spread propaganda on Twitter, Facebook, YouTube, and Instagram. According to a report by the University of Oxford’s Computational Propaganda Project, Russia targeted both conservatives and liberals with its disinformation campaigns. Conservatives were served up posts about immigration, race, and gun rights, while liberal-leaning Blacks were targeted with disinformation about the electoral process.

Professor David Hudson
Prof. David Hudson

More recently, the 2020 presidential election involved numerous false claims that called into question the legitimacy of our election process. For example, in the spring of 2020, former President Donald Trump repeatedly and falsely claimed that mail-in ballots were less secure and part of a plan to rig the election against him and Republicans, generally. Supporters of Trump then repeated these claims, driving a false narrative of voter fraud.

Post-election, Trump and many other Republican politicians and supporters claimed that the election was either “stolen” or “rigged.” These claims were amplified throughout social media and in some news organizations, despite the fact that all of the 62 lawsuits filed in state and federal court seeking to overturn the election were dismissed, and recounts in two states—Georgia and Wisconsin— both affirmed Biden’s win.

Disinformation, which are false or inaccurate claims created with the deliberate intent to deceive, isn’t confined to the political arena. Conspiracy theorist Alex Jones used his website Infowars to make repeated claims that the 2012 murder of 20 children and six adults at the Sandy Hook Elementary School in Newtown, Connecticut was a “giant hoax.” For years, Jones spread disinformation about the massacre—including whether or not it actually happened or whether the shooting victims’ parents were “actors”—despite a large amount of publicly available information about the tragic event.

Scientific matters can also be the subject of widespread disinformation campaigns. Since the beginning of the coronavirus pandemic, disinformation about the virus has flourished. Among a handful of false claims that have circulated in the media and on social-media platforms is that the virus can be treated with bleach or a horse dewormer, that the government put microchips into the vaccines, and that the vaccines alter people’s DNA or can cause infertility.

It’s important, however, to distinguish disinformation from misinformation, which is false or inaccurate claims shared unwittingly without the intent to deceive. As Emily Bazelon, a lawyer and a journalist, wrote in The New York Times Magazine, disinformation can be defined as “falsehoods aimed at achieving a political goal.”

Fighting disinformation is more complicated in the U.S. than in other countries, given the First Amendment. While the First Amendment gives broad protections for people who voice unpopular and even hateful speech, does it also protect those who spread false claims with the deliberate intent to deceive? This guide examines disinformation and its collision with the First Amendment. It will teach students about the fundamental principles that make it difficult for the government to regulate disinformation, examine how the Supreme Court has addressed false speech in different types of cases, and examine possible remedies to disinformation, particularly when it causes significant harm.

Emory Law Journal controversy — Censorship or normal editorial process? 

This week, there was what Jonathan Turley called a “major controversy brewing over free speech and censorship at Emory Law Journal.” Robert George argued, “It’s hard to think of a stupider, more self-defeating idea than imposing political litmus tests on articles submitted to major law reviews. But that’s what the Emory Law Journal has done, rejecting on ideological grounds an essay by the brilliant legal scholar Lawrence Alexander.”

George is wrong on every count. The Emory Law Journal did not reject Alexander’s essay. They did not declare any ideological grounds and in fact expressly stated that they would happily publish views that most of the editors disagreed with. There is no political litmus test that the Emory Law Journal has ever stated or hinted at.

Here’s what really happened [see article for details]

The attacks on the Emory Law Journal reflect the ideological blinders of our times. So many people are convinced that conservatives are oppressed on campus that they jump to conclusions that confirm their presumptions at the first hint that some “woke” student might be concerned about “hurtful” language. But I think the details about this case show a very different picture from the initial reports, and reveal that the Emory Law Journal editors made reasonable reactions to a deeply flawed submission and were still open to publishing it.

Job opening at Institute for Free Speech

The Institute for Free Speech is seeking a Senior Attorney with a minimum of seven years of experience.


  • Serve as counsel of record responsible for all stages of litigation, including: initial case formation; research; discovery, including taking and defending depositions; writing correspondence; writing complaints, memoranda, and briefs; motion practice; and court appearances.
  • Interview clients, figure out what is important and what is not, and create brief coherent, concise stories worth telling in court that would effectively advance our mission to secure First Amendment rights – at the district court level and on appeal.
  • Assist in writing advocacy materials, including legal backgrounders, blog posts, and opinion articles.
  • Occasionally write or assist with writing legal analysis of legislative, regulatory, and policy initiatives.
  • Serve as a media spokesperson in cases and as a speaker at conferences and meetings held by other organizations.
  • Advise our communications team on articles and publications covering our litigation and legal advocacy.
  • As our practice is national in scope, this position requires litigation-related travel.

A preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider strong candidates living and working virtually from anywhere in the country. In addition to litigation or advocacy-related travel, a virtual candidate would be required to travel for quarterly week-long visits to IFS’s headquarters after the pandemic’s impact has receded.

For more information, go here.

Forthcoming book in the state of press freedoms in the US

As the United States grapples with the ongoing COVID-19 pandemic, the nation’s living legacy of systemic racism, and partisan threats to the foundations of democracy, the integrity of news and Project Censored's survey of underreported news stories has never been more important.

This 2022 edition of Project Censored's State of the Free Press offers a comprehensive survey of the most important but underreported news stories of 2021 and a comparative analysis of the current state of corporate and independent news media, and its effect on democracy.

The establishment media sustains a decrepit post-truth era, as examined the lowlight features: "Junk Food News"-frivolous stories that distract the public from actual news-and-"News Abuse"-important stories covered in ways that undermine public understanding. The alternative media provokes a burgeoning critical media literacy age, as evaluated in the highlight feature: "Media Democracy in Action"-relevant stories responsibly reported on by independent organizations.

Finally, in an homage to the history of the annual report, the editors reinstate the "Déjà vu News" feature-revisited stories from previous editions. State of the Free Press 2022 endows readers with the critical thinking and media literacy skills required to hold the corporate media to account for distorting or censoring news coverage, and thus, revitalizing our democracy.

New book on 'the Left's assault on liberty'

In the groundbreaking Speechless: Controlling Words, Controlling Minds Knowles reveals:

  • How the “free speech absolutists” gave away the store
  • The First Amendment does not require a value-neutral public square
  • How the Communists figured out that their revolution could never succeed as long as the common man was attached to his own culture
  • Where political correctness came from
  • How -- comply or resist -- political correctness is a win-win game for the bad guys
  • Why taking our stand on “freedom of speech” helps put atheism, decadence, and nonsense on the same plane with faith, virtue, and reality
  • The real question: Will we shut down drag queen story hour, or cancel Abraham Lincoln?
  • For 170 years the First Amendment was compatible with prayer in public school
  • How the atheists got the Warren Court to rule their way
  • To this day, there’s a First Amendment exception for obscenity. What exactly is the argument that perverts’ teaching toddlers to twerk is not obscene?

Forthcoming scholarly article on 'cheap speech'

Prof. Alan Chen (Sturm College of Law)

As we look back on Professor Eugene Volokh's predictive article about cheap speech, it is worth examining what other elements of the speech and media landscape, as well as the supporting legal infrastructure, have changed over that same period. This Essay focuses on the substantial reduction in the cost of speech creation, as opposed to distribution. After briefly discussing the accuracy of many of Volokh's most important predictions, it examines innovative technological changes that have enabled a larger number and more diverse range of people to engage in speech creation because of the rapidly shrinking costs of doing so by employing user-friendly interfaces. It provides examples of speech of profound public concern that has resulted from such changes.

The Essay then traces the corresponding evolution in First Amendment doctrine and legal scholarship that has expanded the concept of what types of speech creation are covered by the free speech clause. Finally, it addresses some negative externalities of cheap speech creation, and how the law might confront the challenges presented by such costs without sacrificing speech creation's critical expressive value.


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2021-2022 SCOTUS term: Free expression & related cases

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