Whatever Happened to Freedom of Speech?

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As the dust begins to settle on the Donald Sterling controversy with the $2 billion sale of the Los Angeles Clippers, there is an opportunity to answer a question raised by some during the ordeal: what happened to freedom of speech?

Even people who condemn the racism in Sterling’s comments ask: how can a person be punished and forced to sell his team for opinions shared in private?  Does not the forced (or coerced) sale of his basketball team violate the man’s freedom of speech?  Somewhere along the way, did we all lose one of our American fundamental rights?

Everyone can breathe an initial sigh of relief – the First Amendment is still there protecting you!  His case does not present an erosion of our fundamental American rights.

In order to understand how this can be, one needs to understand a basic limitation on our freedom of speech.  Our freedom of speech arises from the text of the First Amendment which reads, in relevant part, “Congress shall make no law . . . abridging the freedom of speech.”  Those first five words present the most basic limitation on our rights.  The protections only apply to the government.  In other words, with some limited exceptions (for example, “obscenity” or yelling fire in a crowded theater), you are free to express your opinions without fear of governmental retaliation.  You cannot be thrown into jail for criticizing the President or, in the case of Sterling, expressing a racist opinion.

Thus, Sterling’s situation did not violate his First Amendment rights.  There were no FBI or LAPD investigations directed at Donald Sterling.  The District Attorney did not threaten criminal charges.  The government did not coerce the sale of the Clippers by threatening civil legal action.  In fact, here, the freedom of speech functioned properly and Sterling’s comments, for better or worse, were protected by the First Amendment.

The First Amendment, however, offers no protection in the “Court of Public Opinion.”  As a result, once Donald Sterling admitted that he made those comments, there were no automatic protections for his speech (i.e., if it were all a lie, he would be protected by defamation laws).  Legally speaking, public retaliation against Sterling was legal.  After all, the players, fans, sports commentators, and even the corporate sponsors who all vehemently condemned Sterling’s speech share the same First Amendment protections as Sterling and are equally entitled to express their views on the matter.

Likewise, the First Amendment provided no protection against the rest of the NBA’s owners taking action against Sterling.  The NBA’s constitution, which is an agreement amongst the owners on how to operate the league, may have provided some protection for Sterling’s speech and prevented the coerced sale of the team, but once the league’s finances were threatened by corporate sponsors cancelling sponsorship deals, players threatening to boycott nationally televised playoff games which would jeopardize advertising revenue, and fans refusing to attend games which impacted ticket sales, Sterling’s organizational protections quickly disappeared.  Acknowledging this reality, he dropped his legal defense to the owners’ efforts to force him out of the league (and his $1,987,500,000 profit on the sale of the team likely helped too).

The limitations of the First Amendment are important to understand because when it comes to a person’s employment (unless you are employed by the government), involvement in organizations and associations, businesses and partnerships, and other public activities, freedom of speech operates in a very different way.  Words and how they are expressed, to whom they are expressed, and where they are expressed can have serious ramifications for which there is no legal protection.  As a result, especially in today’s era of social media when everyone’s smart phone can double as an audio or video recording device, it is important to be mindful of the reality that the First Amendment cannot protect you from the public consequences of saying something you may quickly regret.

*Article also published in the June 12, 2014 edition of the Pottstown Mercury


Reblog: In Pennsylvania, If My Spouse Had an Affair, Can I Use That Against Them in Our Divorce?

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An affair can often lead to a divorce, which then leads to the question from clients: if my spouse had an affair, can I use that against him or her in our divorce?  The answer to the question is complicated and will depend greatly on the facts of the case.  The goal of this article is to explain the various situations where an affair can play a role in a divorce.

23 Pa.C.S. § 3301(a)(2) provides that a fault divorce can be obtained when the offending spouse has “committed adultery.”  That is only half of the story, however, because the law provides for defenses to fault grounds.  Generally speaking, the defenses include provocation, condonation (“forgiveness”), and insanity.  There are also defenses specific to adultery, laid out in 23 Pa.C.S. 3307(b), which include: (1) other spouse guilty of the same conduct; (2) other spouse admitted the offending spouse into a “conjugal society;” (3) offending spouse embraced the defendant after learning of the affair; (4) allowed the offending spouse to prostitute himself or herself; or (5) exposed the offending spouse to “lewd company” which led the offending spouse to have the affair.

In terms of you versus your spouse, of the those defenses, the two most common defenses raised are that either you, yourself, also had an affair and/or you knew of the affair and forgave them, either verbally or through your conduct.  That last part is important because, legally speaking, spouses often bestow forgiveness without realizing it.  While it can be debated whether the caselaw needs to be updated, under the current state of the law of Pennsylvania, if the husband and wife have sexual relations after the affair is revealed, forgiveness has likely been bestowed, which nullifies the affair in legal terms.

If the offending spouse cannot raise a defense, then the affair is most relevant when it comes to the grounds for divorce, claims for alimony, and claims for spousal support.  You may use the affair against your spouse in these contexts.  Otherwise, the affair is not relevant.  This is surprising to clients who expect to gain an advantage in the distribution of the marital estate, but the affair is not relevant to property division.  23 Pa.C.S. § 3502 provides the factors the court is to consider when equitably dividing the marital estate.  Marital misconduct is not one of the factors.  In fact, the legislature explicitly instructed that property is to be divided “without regard to marital misconduct.”

If you or a loved one have any questions regarding the interplay between marital misconduct and a divorce, please contact me directly at mhovey@gmail.com.  Thank you!

Child Custody: Do I Really Need His Permission to Move? (Published in the 422 Business Advisor)

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I am pleased to announce that my article on Pennsylvania’s Relocation Statute was recently published in the 422 Business Advisor.  Click here to view the article: http://www.422business.com/groups/legal-perspectives/child-custody-do-i-really-need-his-permission-move.  This is a must read article for anyone considering relocation with a child subject to, or potentially subject to, a custody order.  Please email me with any questions or concerns at mhovey@wolfbaldwin.com.  Thank you!

Frontiers in LGBT Family Law: Marriage and Beyond

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I am pleased to announce my attendance today at the continuing education class “Frontiers in LGBT Family Law: Marriage and Beyond” organized by the Pennsylvania Bar Institute in Philadelphia. Topics of the class include changes in federal rights and benefits post-Windsor, detailed analysis of all the state and federal cases currently pending involving gay marriage in Pennsylvania, assisted reproductive technology and adoption for same-sex couples, custody issues, and other pertinent topics. The presenters also include Bruce Hanes, the Register of Wills and Clerk of the Orphans Court for Montgomery County, who is issued almost 200 marriage licenses to same-sex couples in Montgomery County.

Please check back over the coming weeks for articles on LGBT rights and legal issues. If you have any questions or concerns (legal or otherwise), please contact me at mhovey@wolfbaldwin.com.

Reblog: How Do I Get My Maiden Name Back During/After a Divorce in Pennsylvania?

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A common question asked during the divorce process is: how do I return to my maiden name?  While many aspects of a divorce are complicated, this is not one of them!  The requirements are laid out in 54 Pa.C.S. § 701(b).

A woman can revert back to her maiden name by simply filing a Notice to Retake Prior Surname with the court.  The form can be prepared by an attorney, but it also normally available at Prothonotary’s Office for the county where the divorce has been filed.  The form must be completed, signed, notarized, and then filed with the court, along with the proper filing fee.  The Prothonotary will then stamp and seal the form, making it official.  You can resume your maiden name before or after the divorce is finalized.

Then, you will be required to notify all the relevant institutions about your name change.  This will include the Pennsylvania Department of Transportation (PennDOT), Social Security Administration, and various other institutions.  Additional copies of the Notice can be obtained at the Prothonotary’s Office.

If you have any questions or need assistance with reverting back to your maiden name, please contact me directly at mhovey@gmail.com.  Thank you!

Reblog: In Pennsylvania, What Happens if We Divorce Without Dividing Our Property?

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Most couples can agree to get a divorce, but few can agree on how to divide their property.  As a result, equitable distribution in Pennsylvania can be very costly and require the assistance of an attorney and experts, such as real estate appraisers and forensic accountants.  Many couples, therefore, either choose to not or cannot afford to utilize equitable distribution.

What happens to the marital property then?  Who owns the property?  Who can possess the property?

The answer is enunciated in 23 Pa.C.S. § 3507(a), but understanding the statute requires an understanding of the legal terms it employs.  The two terms are “tenancy of entireties” and “tenancy in common.”  When a husband and wife purchase/receive property, they own it as “tenants by the entireties.”  Essentially, they own it jointly and there is an automatic transfer of the property from one spouse to other upon the death of one spouse.  Prior to the conclusion of equitable distribution, the court can step in and divide this property between the spouses “equitably,” based on the factors in 23 Pa.C.S. § 3502.  Once the divorce is concluded, however, the property converts to “tenancy in common,” and the ex-spouses own it as “tenants in common.”  Tenants in common are more of partners.  They own the property equally in separate shares.  One tenant in common could sell his or her share or will it any one they want.  The property will not automatically pass from one tenant in common to the other.

The conversion of the property can cause issues if either party wants to pursue their share of the property in court.  At any time, either party could file for the sale of the property, so that the proceeds can be divided equally between the parties.  This could be to the detriment of one party if in equitable distribution the could had the power to grant them 60% of the equity in the property, but now, because of the divorce and conversion, the court is capped at 50% of the equity.

This also creates the risk for unfair surprise and a lot of financial uncertainty.  For example, if both spouses own a house, divorce without pursuing equitable distribution, and one spouse voluntarily moves out of the home, at any time that ex-spouse could file an action with the court to force the sale of the other ex-spouses home.  The house will either be sold or the ex-spouse residing in the house will need to buy-out the other ex-spouse.  These are only some of the negative consequences of not pursuing equitable distribution.

The best alternative to a nasty fight over property is to reach an agreement on how to divide the property between of you.  If this occurs, it is strongly recommended that even you hire an attorney to prepare a property settlement agreement rather than simply divorcing without addressing your property issues.  Failure to do so could be disastrous or cause issues with lenders.  The property settlement agreement can properly avoid the surprise and financial uncertainty described above.

If you have any questions regarding the division of marital property, please contact me directly at mhovey@gmail.com  Thank you.

Analysis of NJ Same-Sex Marriage/Civil Union Decision: Garden State Equality, et al v. Dow, et al

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Moments ago, the Superior Court of New Jersey issued a ruling in Garden State Equality, et al v. Dow, et al in favor of same-sex marriages.  The decision can be viewed by clicking here.  The goal of this article is to explain the decision and provide some analysis of its impact.

To understand the decision, you need to also understand the context of the decision.  In 2006 in Lewis v. Harris, the Supreme Court of New Jersey issued a holding that equal protection required that the same benefits extended to heterosexual couples must be extended to homosexual couples.  New Jersey, however, included a caveat.  In the court’s opinion, equal protection permits different labels as long as the rights available to each set of couples are equal.  As a result, New Jersey passed a law allowing for civil unions for same-sex couples which were identical to heterosexual marriages despite the different titles.  The utilization of civil unions by the legislature was then challenged , but a divided court upheld the use of civil unions.

Then, earlier this year, the US Supreme Court in Windsor invalidated the Defense of Marriage Act (DOMA) which resulted in the demand that the federal government recognize same-sex marriages.  This extended a plethora of rights and benefits to same-sex married couples to which they were previously denied.  The relevant intersection with the Garden State case is that the extension of benefits following Windsor has been consistently limited to married couples and NOT civil unions.

The basis of the challenge in Garden State then, which was ultimately validated by the court in New Jersey, is that Windsor is a game changer and, as a result, civil unions are no longer equal to heterosexual marriages because the designation of “civil union” denies same-sex couples all of the federal rights and benefits available to heterosexual marriages.  The court provides a full list of examples of the type of benefits denied to same-sex couples in civil unions.  The court, therefore, found that the “ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy.”  As a result, the court deemed that the distinction between marriages and civil unions was no longer superficial and therefore in violation of the requirements of Lewis.  It concluded that “Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.”

Analysis for Pennsylvania: While a significant victory for same-sex marriage, the effect will be limited to New Jersey.  New Jersey’s situation is unique in that its court system previously required that same-sex couples be afforded the same benefits as heterosexual couples.  This is wholly distinct from Pennsylvania, which has yet to require equal treatment either superficially or substantively of same-sex and heterosexual couples.  That does not change my long-term projection for same-sex marriage in Pennsylvania, but the impact of the decision stops at the Commonwealth’s borders, in my opinion.

Please feel free to email at mhovey@wolfbaldwin.com with any questions or concerns.  Thank you.

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