Sunday, June 28, 2015

Does the First Amendment Protect Harassing Speech?

Does the First Amendment Protect Harassing Speech?

My answer:  many times it does not.

We all have heard a lot about first amendment speech and religious protections. If speech is protected,  should someone  who verbally harasses others, either sexually, racially or because of LGBT issues be protected?  I think not. Even though most speech is protected under the first amendment, the Supreme Court has always held there are exceptions. One cannot shout "Fire!" in a crowded theatre because that cry could cause panic and injury. Some forms of pornograpy, those with no redeeming social value (not really sure what that means) are not protected. Likewise, harassment based on unlawful discrimination is not protected because of federal and state discrimination laws.

Most of us concede that assault and battery, which is oftentimes a form of expression, is not protected speech. In fact, not only can battery be civilly actionable, there may well be criminal penalties. Why is this form of expression, usually an expression anger, frustration, revenge or contempt, exempt from first amendment protection?  Because the purpose of battery is to inflict injury on another. Expressing anger without invoking injury can be perfectly fine protected expression.

With harassment, a form of bullying, the purpose of the expression is also to inflict harm. Sexually denigrating a co-worker, especially if the actor has power over the employee, is perpetrated to harm the employee. Most sexual harassment is about power, as is racial harassment or any other form of workplace harassment. Racial and sexual discrimination in employment is unlawful because our society abhors these forms of discrimination.  Perhaps after hundreds of years of enslaving an entire race we recognize this Country's sins.  Until 1920 women could not vote and up until 1971, in some states married women had no property rights.  This Country has finally recognized the insidious harm discrimination engenders in our society.

Obviously, each case is different. Once a woman came to me and said that her boss told her she looked nice. I took that statement by the boss as a compliment, not harassment and refused to represent her.  Cases are factually distinct and we look at how reasonable people would respond. But, degrading, offensive and disrespectful bullying has no place in society nor in the workplace. I believe Americans can express racist thoughts or sexually disgusting statements outside of the workplace to non-employees under our Constitution. But if that person acts on his or her racism or prejudice, in the workplace or in other public places, he or she should be held liable. Most people can't divorce their prejudices from their actions, and therein lies a problem. In my opinion, bullies suck. But bullies learn how to bully from parents or siblings or friends long before they bully someone at work. We should not tolerate racial or sexual harassment, which is different from what one thinks in their head or says in non-workplace or non-harassing environments. It a man at a rally holds up a sign declaring he hates gays, that expression. But if that man harasses or discriminates against gays in the workplace, that's action. There is a specific victim, not just a declaration with no specific harm to an individual.

Someday, maybe we will have a society were most people naturally treat others with respect. There will be no bullying, no harassment, and your gender, or the color of your skin, etc. will not be a hindrance to anyone seeking their American Dream. That is my American dream, anyway.

Sunday, June 21, 2015

Am I A Hypocrite?

Yesterday, someone I know and think favorably about, called me a hypocrite, or at least said I acted hypocritically. I am unnerved by this. I have fairly thick skin, but this one has bothered me.

I posted on Facebook in support of a Facebook friend who was disappointed that many white posters failed to mention the slaughter in South Carolina. I posted an article deriding the state of South Carolina for flying the Confederate flag. It was that post that caused this other person to call me out. You see, I am friendly with a local blogger who refuses to edit or delete comments, even if they are racist or disgustingly sexist because he believes in free expression. Some of these "trolls" appear to be disgusting human beings who lack self-esteem and courage and revel in making disgusting comments. Some of those people may be reading my blog now and penning nasty retorts that enrage my husband. There are racist commenters on that blog. But the blogger is not racist.  He is, however, controversial and has made enemies.

When politicians or other public figures make a misstep, he calls them out.  He is harder on those public officials than the regular press is. He has enemies. But, calling out the missteps of public officials and figures exemplifies speech that the First Amendment is designed to protect.  I may not agree with what he says, but I believe he performs a public service in holding public figures accountable.

A state government flying a flag which symbolizes racial oppression differs considerably, in my book, from refusing to delete comments on a blog. The commenters' comments are written by people who are responsible for what they write. It is no one else's responsibility. Those troll commenters show their true cowardice through their anonymity. If someone refuses to take credit and/or responsibility for their missives, it is their character, not the bloggers', which must be questioned.

Their are many controversial people I admire or respect. Bucking the status quo can be courageous. I like misfits and troublemakers. We need people who are willing to question authority. However, I wish there were no nasty racists in Kansas City. I wish people treated each other with respect. I wish governments and corporations would treat all employees, including women, Blacks, Hispanics, older workers, and people with disabilities, the way they want their family members to be treated. Perhaps I am hypocritical, but I can believe in a persons' freedom of expression, no matter how repugnant that expression is, and still believe that the Confederate flag should not be flown by a governmental entity on government grounds.  So, Tony is still my friend even though I dislike the cowardly comments posted by trolls on his blog. The two issues, for me, are not contradictory.

Monday, June 15, 2015

The Importance of Leisure Time

I could really use a vacation!  I need more of this:

I could use a little less of this:

I will need to get a little more balance.   July is my recharge month. I will be pumped in August!

Monday, June 1, 2015

Some Lawsuits Make Me Sick

Apparently, I am a member of a class action against Massage Envy. I was a member, but didn't claim any recovery, in a similar lawsuit against Southwest Airlines, because drink coupons expired. I believe the members of the class got drink coupons and the class counsel received millions of dollars. I guess there is a great public interest in making sure flyers' ability to drink alcohol in the air without paying for the drinks is tantamount. Perhaps we should amend the Constitution.

Here is the email I sent to the class administrator of the Massage Envy class action:

Dear Class Manager:

This case is disgusting. The attorneys get $7,800,000 and the class members get a massage.  I was a member of Massage Envy and when I left I was owed a couple of massages. I will not be asking for reinstatement. 

I am also an employment discrimination plaintiffs' lawyer. This lawsuit and others like it give all plaintiffs' lawyers a bad name. Is this the same firm that handled the class against Southwest Airlines because drink coupons expired?  Give me a break. 

Cases like this make me ashamed to be a lawyer. 

Lynne Jaben Bratcher

P.O. Box 26156
Suite 1935 City Center Square. 1100 Main St.
Kansas City, MO 64196
phone 816-221-1614
fax 816-421-5910

Monday, May 25, 2015

Women and the World In the Year 2112

It is amazing what women have accomplished in the last century.  Presidents 57, 58, 82, 82, 84, and 90 have all been women.  Our first African-American president was Barak Obama in 2008.  Since then, our presidents have been both men and women and have been from so many different ethnic and racial backgrounds.  The same is true for most of the industrialized countries in the world.

Mo'Ne Davis had a wonderful career as a Major League pitcher.  She won the Cy Young award in 2025, 26, and 27.  She after her retirement, she was a pitching coach for the Mets in New York. Shondra Miller became the first place kicker in the NFL.  Of course, Davis and Miller opened the flood gates of female participation in formerly male dominated sports.  It wasn't until 2037, after Amanda Fincham became president of the Major League Baseball Union, that female athletes finally earned the same salary as their male counterparts.

Finally, the Cleveland Indians changed their name to the Cleveland Clodhoppers, while the Kansas City Chiefs became the Kansas City Monarchs, as an homage to the best Negro League team in baseball.

it's hard to believe that women only earned 76 cents for every dollar earned by a man in 2015.  Currently, in 2112, women out-earn men by 5 cents on the dollar.  The salary advantage given to women is attributed to the female ability to work better in teams, their willingness to do any work, their organization skills and the way they have incorporated both family and work life efficiently.  Since 2084, men have increasingly taken over child-rearing and housekeeping chores and sociologists and psychologists report an increase in parental and child wellbeing.  In fact, society could not be operating more efficiently.

Since the seminal Harvard/Smith collaborative study on effective leadership, showing that traditional female traits of cooperation, nurturing and willingness to take on all tasks regardless of whether it was formally considered "menial," women have headed most multi-national corporations.  Those women who pioneered running large corporations, while being tentative at first, developed a business model that rewarded patience, kindness and recognition of hard work, thereby increasing productivity of businesses in general.

President L'Tonya Johnson's last State of the Union address spoke of an increase in empathy and cooperation between businesses and nations.  With the downturn in crime and war, and the upturn in the economies of the world, hunger and poverty have been almost eliminated.

However, discrimination is still a problem.  The old discrimination laws are most commonly applied to anti-male sentiments in both industry and international relations.  President Johnson hopes to eliminate anti-male discrimination during her term.  While men have started all wars throughout history, President Johnson and other world leaders believe that, through concerted global policy, male aggression can be contained.  Through research and study, gun laws have been radically changed throughout the last century, lawmakers are experimenting with allowing qualified women to own handguns for protection.  Congress is concerned about returning to the violent crime rates of the 21st Century.  This issue is hotly debated and it will be interesting to see what happens.

Since lawmakers made college educations available to all, the trend of women comprising most college graduates continues.  Congress and lawmakers in general are considering both financial and other incentives so that more males will pursue college and even post-graduate educations.  Since the marked reduction of defense spending across the world, lawmakers hope that males will again seek jobs in science and math.  Since the early 22nd Century, when teacher training to encourage girls in the sciences became such an overwhelming success, teachers realize they must redouble their efforts to keep boys interested in science and math, and not just in homemaking and cooking.

Professors Eliza Schmidt and Andorra Schickenheim successfully eliminated 98% of climate change and the world is on track to be human-climate-change free for the next millennium.  The anti-nuclear weapon research of Professor Melanie Smithson and Yura Mengovi revolutionized world fear of annihilation.  All countries of the world voluntarily destroyed all of their nuclear weapons and vowed to refrain from producing any more weapons of mass destruction.

Things have changed so much in the last 100 years, it will be interesting to see what happens in the next century.

Monday, May 18, 2015

Paid Maternity and/or Paternity Leave

I am a civil rights lawyer and a small business owner. I struggle with the issue of paid maternity and paternity leave. I have no doubt that paid leave would benefit families, mother's, fathers and children. The selfish problem I have centers on who would be required to pay for this leave. I assume that employers would be required to offer paid time for childbirth or adoption. When you have a small business, like mine, having to pay an employee for up to a year with no concomitant work performed by that employee would be a burden.

Yet, I know how important leave to care for a new-born is. I raised two children. When I gave birth to the first child, my son, I was employed by the federal government. I carefully planned to take three months off work, using my sick leave and vacation. After I had been off work for only six weeks, my boss tried to force me to return to work. I resorted to getting a physician's excuse so that I could complete the meager 3 months at home with my son. After I returned to work, I successfully lobbied to reduce my workweek to 4 days at 80% of my former pay. Within two years, I was gone, enrolled in law school.

When I gave birth to my daughter, I was a young, self-employed lawyer. I brought my baby with me to the office and she napped swaddled on my office floor. I did stay away from work for around 3 months, obviously with no pay. I kept my daughter with me as much as possible. Being a sole proprietor has its advantages.

We still hear about parents' dilemma when having a family.  As a society, we are well-served by providing to both mother's and fathers Leave from work to care for their newborn babies. I think many business requirements for professionals with children are barbaric. We should not require parents to sacrifice their children in order to succeed in business.

But, who should pay for this paid leave for new parents?  Most large companies may be able to provide paid parental leave up to a year with little economic detriment. But really small businesses, like mine, would struggle.

I know that America is a rarity because of the lack of mandated paid parental leave. We need to change this. But, in all of the other countries in the world, where paid parental leave exists, who is required to pay for the leave, the businesses or the taxpayers or both?  This is a societal issue. I think we need a societal solution.

Monday, May 11, 2015

Uncommon Courage - Witnesses With Nothing to Gain and Everything to Lose

When I started this blog, I wanted to write about many of the incredible people I have represented throughout the years, those souls willing to buck the status quo and stand up for the rights of themselves and others. Those clients demonstrate uncommon courage, hence the name of the blog. I have represented many amazing people and I have learned so much from these exceptional people. I have represented woman and men who were sexually harassed and decided not to take it.  I represented ordinary citizens discriminated against by management in large companies, small companies and the government. I have represented whistle-blowers, victims of racism, sexism and ageism, who had the courage to speak truth to power.

Through the years, I have witnessed others who demonstrate incredible courage, with no real reward. I hold these people in great esteem. This group is rare, the rarest of all, but also among the bravest. These are the witnesses who tell what they see and hear, even when they would be better served by lying or fudging or laying low.  These are co-workers, many still employed by the defendant, who do not put their own interest before the truth. It takes a great deal of courage to testify for another against one's employer. There is a tendency for witnesses to have memory lapses when questioned about situations in which their jobs are at stake. It is human nature to protect oneself and one's livelihood. I know this from personal experience. Yet, every now and again, a person puts the truth before self-interest and fights the very real urge to alter one's memory to help oneself. After enough time, many people, including me, can misremember facts and convince themselves that what is false is true. To those souls who maintain their integrity and refuse to waiver, you are amazing. I hope that if I find myself in a position where a lie helps me more than the truth, I can muster the courage to act as I have observed those brave witnesses act, with honesty and integrity.

I believe that this uncommon courage is borne from these witnesses ability to empathize. When a person can put himself in the shoes of another, compassion and courage are oftentimes the by-products. In fact, people's ability to empathisize with other humans is a foundation of our society and of our justice system. Empathy begats bravery.  I have seen it work.