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

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IRS Issues Ruling on Same-Sex Couples

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The Internal Revenue Service (IRS) issued ruling 2013-17 which expands the definition of married couples within the tax code to include same-sex married couples.  The entire ruling can be viewed at: http://www.irs.gov/pub/irs-drop/rr-13-17.pdf.  The expanded definition will take effect on September 16, 2013.

The IRS ruling is not unexpected in the wake of U.S. v. Windsor, the Supreme Court decision earlier this year which invalidated the federal Defense of Marriage Act, which prohibited the federal government from recognizing same-sex marriages.  With that impediment removed, the IRS will include same-sex couples in the definitions of “spouse,” “husband and wife,” “husband,” and “wife.”  These terms are used more than 200 times throughout the Tax Code.  They will now be treated as gender neutral.

In explaining its rationale, the IRS likens same-sex married couples to common-law married couples in that the marriages are valid in some states, but not others, which creates administrative issues for the federal government.  It states in its ruling that “Although states have different rules of marriage recognition, uniform nationwide rules are essential for efficient and fair tax administration. A rule under which a couple’s marital status could change simply by moving from one state to another state would be prohibitively difficult and costly for the Service to administer, and for many taxpayers to apply.”  Therefore, as the IRS previously did with common-law marriages, it will recognize the marriages of same-sex couples, if validly entered into pursuant to the laws of the state into which the purported marriage occurs.  The result, therefore, is that a same-sex couple which secures a valid marriage in one state may not be entitled to recognition in their state of residency (for tax and others benefits), but will be entitled to recognition for tax purposes federally.

If you have any questions or concerns, please contact me directly at mhovey@gmail.com.  Thank you!

Reblog: What Do the DOMA and Prop 8 Decisions Mean for Gay Marriage in Pennsylvania?

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Moments ago, the Supreme Court of the United States issued two historic rulings concerning gay marriage.  In the first ruling, United States v. Windsor, the Supreme Court ruled that DOMA (Defense of Marriage Act) is unconstitutional.  Federally, the result is that valid same-sex marriages must now be recognized.  This will entitle same-sex couples to the same benefits as heterosexual marriages, including the right to file joint federal income taxes and share federally provided medical benefits.

The second decision, Hollingsworth v. Perry, dismissed the appeal in the Prop 8 case.  Some background is needed to understand this decision.  When Prop 8 was challenged a trial was held on its constitutionality.  At the conclusion of the trial, the court held that Prop 8 was unconstitutional and unenforceable.  At that point, the government for California conceded and accepted the ruling.  The supporters of Prop 8, however, filed an appeal pursuant to a unique California law.  That appeal reached the Supreme Court.  Today, the Supreme Court said that private individuals (e.g., the supporters of Prop 8) cannot take an appeal when the government (the party actually involved in the case) declines to appeal.  The ruling, therefore, is more procedural than substantive, meaning it did not directly address gay marriage.  The result, however, is that the trial court’s ruling will stand and Prop 8, which prohibited same-sex marriage in California, is unconstitutional, invalid, and unenforceable, thereby opening the path for same-sex marriages in the state.

The question many here at home are now asking is: what does this mean for gay marriage in Pennsylvania?  Immediately, there will be no impact because Pennsylvania has its own version of DOMA (23 Pa.C.S. § 1704).  The Pennsylvania law prohibits the Commonwealth from recognizing other states’ same sex marriages. As a result, same-sex marriages from the 12 states that grant them are still prohibited in Pennsylvania.  A same-sex couple married in another state will still be denied the right to share medical benefits provided by the Commonwealth, denied the right to file a joint tax return, denied the right to inherit from the other automatically and at the lower tax rate, and denied the right to divorce here in Pennsylvania.

Long-term, however, it puts the Commonwealth’s version of DOMA is significant peril.  What I predict will happen next is that a validly married same-sex couple will challenge Pennsylvania’s DOMA as unconstitutional, either because they were denied a divorce or inherited at a higher tax rate.  Even if the Supreme Court of Pennsylvania ultimately upholds the statute on appeal, we know now that if the matter is appealed to the Supreme Court of the United States, the state’s statute will almost certainly be ruled unconstitutional by the same rationale as the federal DOMA.  The constitutionality of the statute pursuant to the Full Faith and Credit Clause will also be in question, providing alternative grounds for its invalidity.  The result is pressure on both the legislature and the judiciary to strike down DOMA.  I predict that within five years, DOMA will either be repealed by the legislature or deemed unconstitutional and thereby unenforceable by the judiciary.  This will result in same-sex couples being entitled to the same rights as heterosexual couples in Pennsylvania.

If you are a same-sex couple in Pennsylvania and wish to further discuss the impact of these two rulings on your marriage, please contact me at mhovey@gmail.com.  Please check back on our blog for more analysis of these two historic decisions.  Thank you.