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Old 03-01-2005, 10:49 AM   #1 (permalink)
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Free Speech vs $1,560,000.00 Speech

http://www.omaha.com/index.php?u_pg=1638&u_sid=1348522
Quote:
LINCOLN (AP) - A federal appeals court on Monday ordered a third trial in the case of a woman who was fired from her bank teller job after speaking out at a school board meeting.

But the 8th U.S. Circuit Court of Appeals also upheld a ruling by U.S. District Judge Richard Kopf of Lincoln, who said that damages of $1.56 million awarded in Betty Lou Dossett's first jury trial were "the product of passion and prejudice."

"Even Dossett's attorney was not so bold as to argue for anything close to that sum," wrote Judge Steven Colloton.

Dossett was fired from the First State Bank in Loomis, Neb., in 1998, two weeks after speaking out publicly against a proposed merger of the Phelps County R-6 School District with Loomis Public Schools.

She said she was told that prominent bank customers threatened to take their business elsewhere if she was not fired.


In a letter to Dossett, bank President John R. Nelson said she was fired "as a result of comments . . . which were negative about the local school board and superintendent, thereby reflecting poorly on the community and placing at risk substantial customers of the bank."

Dossett sued, saying her firing violated her constitutional right to free speech.

The bank's lawyer argued that First Amendment rights didn't apply to private employers.


After the case was transferred to U.S. District Court in Lincoln, a jury found for Dossett in February 2003 and awarded $1.56 million in damages.

But Kopf threw out the award and ordered a new trial, and in the second trial, a jury found in favor of the bank.

Dossett appealed to the 8th Circuit, arguing that the instructions Kopf gave the second jury were faulty. She also appealed Kopf's ruling on the damages awarded in the first trial.

In Monday's ruling, the 8th Circuit agreed with Kopf that the damages were excessive.

"The first jury's award, as far as we can tell, would represent an unprecedented amount of damages in a First Amendment retaliation case," Colloton wrote.

But the court agreed with Dossett on Kopf's instructions to the jury. It ordered a third trial on whether the bank conspired with the school district to retaliate against Dossett.

Dossett's lawyer, Maren Lynn Chaloupka, hailed that decision.

"This is an important ruling that provides protection for any Nebraskan who has the guts to take an unpopular position, as Betty Lou Dossett did."
Ok...beyond the 1.56 million dollars awarded in damages, which I also believe was a bit excessive, do you feel that an employer (First State Bank) has the right to dictate to its' employees (Betty Lou Dossett) what they can say, where they can say it, when they can say it, who they can say it to, and how they can say it. In short, should an employer have direct control (confidentiality clauses withstanding) over your freedom of speech? Do First Amendment rights apply to private employers, or not?
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Old 03-01-2005, 11:11 AM   #2 (permalink)
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The bank's lawyer argued that First Amendment rights didn't apply to private employers.
Unless she was under contract specifically not to say something, it IS protected by the first ammendment. The $1.56m is so far beyond absurd that it ranks up there with Carrot Top winning the Nobel Prize for Literature or Samuel L. Jackson not being a badass motherf**ker. It's unthinkable.
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Old 03-01-2005, 11:31 AM   #3 (permalink)
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If she said it in the bank, they may have a case. Since it wasn't, it's a 1st Amendment violation.
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Old 03-01-2005, 11:36 AM   #4 (permalink)
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Doesn't the first amendment say "Congress shall make no law...."?

Not that I am a fan of firing someone because of what they say on their own free time, but how does the first amendment apply to a bank?

Sometimes I don't get that about "free speech".

While I may not like the bank or how it treats/disciplines its employees, I don't understand how the first amendment applies here, unless Congress is the one limiting her speech.

So, for those of you saying it is in violation of the first amendment, please explain it to me, because I don't see it.
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Old 03-01-2005, 11:41 AM   #5 (permalink)
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Quote:
Originally Posted by Bill O'Rights
do you feel that an employer (First State Bank) has the right to dictate to its' employees (Betty Lou Dossett) what they can say, where they can say it, when they can say it, who they can say it to, and how they can say it. In short, should an employer have direct control (confidentiality clauses withstanding) over your freedom of speech? Do First Amendment rights apply to private employers, or not?
Does this have anything to do with At-Will Employment? From my understanding, if you are employed at-will, you can be fired for anything or nothing, entirely at the will of your employer.
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Old 03-01-2005, 11:44 AM   #6 (permalink)
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Quote:
Originally Posted by djtestudo
If she said it in the bank, they may have a case. Since it wasn't, it's a 1st Amendment violation.

It's not a First Amendment violation because it wasn't the government that punished her. Freedom of speech does not mean freedom from consequences imposed by private entites
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Old 03-01-2005, 03:01 PM   #7 (permalink)
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Originally Posted by djtestudo
If she said it in the bank, they may have a case. Since it wasn't, it's a 1st Amendment violation.
So if I hire an employee who later goes out and says things which will cause me to go out of business if I don't fire her, I'm expected to go out of business rather than fire the bigmouthed employee?

No governmental actor, no First Amendment violation.

Last edited by daswig; 03-01-2005 at 03:09 PM..
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Old 03-01-2005, 03:08 PM   #8 (permalink)
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Originally Posted by daswig
So if I hire an employee who later goes out and says things which will cause me to go out of business if I don't fire her, I'm expected to go out of business rather than fire the bigmouthed employee?
There's a difference (I believe ) that she wasn't saying anything involving the business at all. She only spoke her opinions about the school situation.

What I want to know is:
How fucking important is a merger of school districts that you have to work to get people fired for opposing your view.
They should post the names of those customers nad let them sweat a bit.
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Old 03-01-2005, 03:12 PM   #9 (permalink)
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Originally Posted by RAGEAngel9
There's a difference (I believe ) that she wasn't saying anything involving the business at all. She only spoke her opinions about the school situation.

What I want to know is:
How fucking important is a merger of school districts that you have to work to get people fired for opposing your view.
They should post the names of those customers nad let them sweat a bit.
When you work for somebody, your viewpoints can indeed cause them damage. For example, suppose somebody worked for the Boy Scouts of America, and came out in support of NAMBLA. That would indeed negatively affect the employee's employers. And banks are expected to maintain confidentiality of their depositers generally, so publishing their names is out.
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Old 03-01-2005, 03:21 PM   #10 (permalink)
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Quote:
Originally Posted by daswig
When you work for somebody, your viewpoints can indeed cause them damage. For example, suppose somebody worked for the Boy Scouts of America, and came out in support of NAMBLA. That would indeed negatively affect the employee's employers.
I understand your point, but I find your analogy a bit flawed.
Since you work (assumingly with children) for the BSA, saying you are in support of NAMBLA ( and by in support I don't just mean 1st Amendment support) would show possible "conflicts of interest".
Since it doesn't seem like the bank has any business with the schools, I would think this is different. If the banks did have business with the schools, then my opinion changes a little.

Quote:
Originally Posted by daswig
And banks are expected to maintain confidentiality of their depositers generally, so publishing their names is out.
While this is true, I think when customers start asking for people to be fired it's a little different.

Of course, there's how I think and wish things should worke and how they do.
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Old 03-01-2005, 03:37 PM   #11 (permalink)
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1.5 million sounds about right to me. It's a pity that there are no fines the state could apply.
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Old 03-01-2005, 03:38 PM   #12 (permalink)
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The first amendment only applies to the government.

Working for companies are of supply and demand, the government isnt affected by that. SO, if people want to speak out publically, and without reprise, they can work for a company that allows them to say what they want. It's not a matter of public health, it's not a matter of prejudice, it's a matter of the company protecting itself.
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Old 03-01-2005, 04:50 PM   #13 (permalink)
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It's not a matter of public health, it's not a matter of prejudice, it's a matter of the company protecting itself.
Regardless, someone should not be fired for comments said outside of the workplace not applying to the workplace. I agree it is not a 1st amendment issue, but it is still discriminatory. A person should not have to worry about censoring themselves in public affairs out of fear of losing their job. Dissenting opinions shouldn't be punished.
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Old 03-01-2005, 04:59 PM   #14 (permalink)
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Quote:
Originally Posted by daswig
So if I hire an employee who later goes out and says things which will cause me to go out of business if I don't fire her, I'm expected to go out of business rather than fire the bigmouthed employee?
And we're supposed to take your word for it that the comments would negatively impact your business? Sounds like the perfect excuse to fire anyone at anytime for any reason - and then blame it on something they said while on vacation in Bermuda.

In reality, employers typically cannot simply fire someone without a good deal of documentary evidence of malfeasance or budgetary issues. "Something they said" is only rarely going to a defensible explanation (such as your Boy Scouts/NAMBLA example and, obviously, trade secret dissemination).

Why? Because employees have rights of protection against improper treatment by employers.

You're a lawyer, right? You should know all about it.
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Old 03-01-2005, 05:11 PM   #15 (permalink)
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Quote:
Originally Posted by Fourtyrulz
I agree it is not a 1st amendment issue, but it is still discriminatory.
I think this pretty much sums up the whole thing.
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Old 03-01-2005, 05:17 PM   #16 (permalink)
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I'd agree that it's not necessarily a first amendment issue, since there's no government entity involved. However, what it may be is a RICO violation. The RICO statute allows (I believe, I'm not a lawyer) for a pattern of intimidation to provide revenue ar other material gainto be illegal. If the people who threatened to pull their funds conspired to to it together, that a pattern. And if they were getting something from the proposed merger, say building contracts or something similar, that's a material gain, so maybe RICO applies where the first amendment doesn't.

And I know that people have tried to file suits against employers under RICO, and that RICO can be applied to non-criminal cases. The problem is, it's usuallythe government that files RICO cases,soI don't think one person is going to have any luck with it.

A little left field, but it's my two cents.
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Old 03-01-2005, 05:20 PM   #17 (permalink)
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The problem isn't with the bank firing her the problem is with the people who said they wouldn't go to the bank if they didn't fire her. The bank was protecting it's buisness. What should be brought out is the names of the people who were so imature to let someone elses differeing opinions effect where they bank mearly because they worked at the bank.
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Old 03-01-2005, 05:57 PM   #18 (permalink)
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Quote:
Originally Posted by Manx
Why? Because employees have rights of protection against improper treatment by employers.
I don't like what this bank did, however I think employees only have rights of protection against illegal treatment. IMHO improper treatment goes on all the time with no repercussions. Many of the things said in the thread concerning employers firing people for lifestyle choices applies here as well.
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Old 03-01-2005, 06:38 PM   #19 (permalink)
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Originally Posted by Fourtyrulz
Regardless, someone should not be fired for comments said outside of the workplace not applying to the workplace. I agree it is not a 1st amendment issue, but it is still discriminatory. A person should not have to worry about censoring themselves in public affairs out of fear of losing their job. Dissenting opinions shouldn't be punished.
I don't see why not. Every small business owner sure has to watch what they do in public, since there are so many ways business can be driven away.

It's scary that the same NAMBLA comparison occured to me, but I'll use another:

Why should I, as a small business owner, be forced to continue the employment of a person who claimed the Pope is the Antichrist (there is a denomination that preaches this)? Such a practice in a heavily Catholic community could ruin my business.

I realize that in the opinion of many, it's the EMPLOYERS who are Antichrists, but they don't deserve to be run out of business by their employees.
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Old 03-01-2005, 08:40 PM   #20 (permalink)
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Originally Posted by Manx
And we're supposed to take your word for it that the comments would negatively impact your business? Sounds like the perfect excuse to fire anyone at anytime for any reason - and then blame it on something they said while on vacation in Bermuda.

In reality, employers typically cannot simply fire someone without a good deal of documentary evidence of malfeasance or budgetary issues. "Something they said" is only rarely going to a defensible explanation (such as your Boy Scouts/NAMBLA example and, obviously, trade secret dissemination).

Why? Because employees have rights of protection against improper treatment by employers.

You're a lawyer, right? You should know all about it.
Ever hear of "right to work" and "at will" employment? In reality, in "at will" states, an employer can indeed fire anybody at any time for no reason unless there's a valid employment contract in place. The only way documentation comes into play is if the firing was in violation of federal or state statute, as examples in situations where Title 7 is implicated, or as retaliation for statutorily-protected "whistleblowing". "For cause" determinations in termination will come into play for things like unemployment insurance (was the termination the fault of the employee or not will determine what benefits are applicable), but it will not get them their job back nor give them a successful cause of action against the employer.

As for invoking RICO, in order to qualify there has to be a pattern of ILLEGAL acts within a statutorily defined time period. Firing somebody in an "at will" state isn't an illegal act.

Last edited by daswig; 03-01-2005 at 08:43 PM..
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Old 03-01-2005, 09:03 PM   #21 (permalink)
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I don't see why not. Every small business owner sure has to watch what they do in public, since there are so many ways business can be driven away.
In a school board meeting not everyone is going to agree with a certain policy, or in this case a merger between two school districts. And simply because you don't side with the majority does not give the townspeople the power to drive you out of your job. That is why there are rules in place against discrimination: If x number of townspeople don't like the black guy working at K-mart and they complain to the staff that they will take their business elsewhere unless that man is fired, that's too bad...there are laws against it.

Just replace "black man" with "dissenting woman" and tell me what makes this case any different.
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Old 03-01-2005, 09:21 PM   #22 (permalink)
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Quote:
Originally Posted by daswig
Ever hear of "right to work" and "at will" employment? In reality, in "at will" states, an employer can indeed fire anybody at any time for no reason unless there's a valid employment contract in place.
Yes I have heard of "at will" employment. But at will employment was significantly weakened in the 1980's. The result is essentialy what you see here in this article - an employer can fire anyone at anytime for any reason - but they then open themselves up to an easy lawsuit where they will have to defend the reasoning for the termination. In other words, very few people will be fired for what would commonly be considered no reason at all. In most terminations, documentary evidence is used for any potential need for defense.

An employer can be sued by anyone. If they can't explain why they fired someone, the employer is almost certainly going to lose the lawsuit. It may not be illegal, but there is the potential for civil penalties.
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Old 03-01-2005, 09:27 PM   #23 (permalink)
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Just replace "black man" with "dissenting woman" and tell me what makes this case any different.
Easy, a black man can not change his features or skin tone.

A wise man knows when to keep their mouth shut.
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Old 03-01-2005, 09:36 PM   #24 (permalink)
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i don't know about all that high tech stuff, but i strangely support the freedom of speech and free french fries
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Old 03-01-2005, 10:14 PM   #25 (permalink)
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A wise man knows when to keep their mouth shut.
You're telling me one should not express his opinion at a school board meeting where the purpose is to DEBATE and gather DIFFERING viewpoints? The whole "Your opinion is different and therefore wrong" attitude you seem be displaying is the entire reason this lady got fired in the first place.
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Old 03-01-2005, 10:17 PM   #26 (permalink)
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Originally Posted by Manx
Yes I have heard of "at will" employment. But at will employment was significantly weakened in the 1980's. The result is essentialy what you see here in this article - an employer can fire anyone at anytime for any reason - but they then open themselves up to an easy lawsuit where they will have to defend the reasoning for the termination. In other words, very few people will be fired for what would commonly be considered no reason at all. In most terminations, documentary evidence is used for any potential need for defense.

An employer can be sued by anyone. If they can't explain why they fired someone, the employer is almost certainly going to lose the lawsuit. It may not be illegal, but there is the potential for civil penalties.

I don't know where you got your J.D. from (or if you even have one), but it's obvious from this post that you are not a practicing attorney in an "at-will" state in the US. An employer can indeed be sued by anyone....ANYONE can be sued by anyone. Hell, I can sue an inanimate object if I want to. The Government does it all the time. That doesn't mean that the suit will be successful. In an "at will" state, the employer doesn't NEED to give a reason, because the employee is an "at will" employee. Now if some other statute is involved, like if it's a Title 7 scenario, that's different, but in this case, the woman was NOT fired for being a woman, she was fired for opening her mouth in a manner that irritated her employer's customer base. Gender, race, ethnicity, et cetera had nothing to do with it. In an "at will" situation, the employer can decide that they don't like the employee's haircut or hair color or bumper sticker or whatever and fire them without effective recourse, unless it was done in violation of a statute like Title 7. Yes, the employee can sue them, but the odds of the suit getting past a motion for dismissal are beyond slim, and depending on where the case is heard, F.R.C.P. Rule 11 sanctions or their local equivalent may be asked for.

You say "It may not be illegal, but there is the potential for civil penalties." If it's not illegal, there can BE no civil penalties. That's what civil penalties are for...to redress and compensate for illegal and/or tortious acts. If it's not illegal, you can't generally recover damages. For example, if you're hurt in a car accident, you can recover damages because it's illegal and tortious to hit and injure another person. It's not illegal to fire somebody in an "at will" state because they pissed your customers off, so damages are NOT recoverable.

There's more to the law than you will learn watching "Law & Order" reruns.

Quote:
Just replace "black man" with "dissenting woman" and tell me what makes this case any different.
So, it's illegal to fire black people, period? Fascinating, but incorrect. It's illegal under Title 7 to fire black people BECAUSE THEY ARE BLACK. Any non-Title 7 situation/screwup on the part of the black employee is fair game, as long as it's not based upon race, gender, ethnicity, religion, et cetera. I've seen NOTHING to indicate that the woman in question was fired for being FEMALE....she was fired for her actions which irritated the bank's clientele. Those actions had nothing to do with her race or gender.

You can't fire somebody because they are black, or female, or Catholic, or from Zimbabwe. You CAN fire them for being an asshole and pissing off your clients, even if it's done away from the office, just as you can fire them for being charged with a DUI.

Last edited by daswig; 03-01-2005 at 10:25 PM..
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Old 03-01-2005, 10:18 PM   #27 (permalink)
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can't argue with that. or can you? anything can be arguable. even what im saying now can be arguable even though i have the freedom of speech. but if what i said was arguable wouldn't that make my point true? well all i know is that you can never argue with free french fries
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Old 03-01-2005, 10:22 PM   #28 (permalink)
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All those who don't think the First Amendment applies here should do a google search for First Amendment retaliation. There are assuredly circumstances, and this case is very likely to be one of them, where it is unlawful for negative actions to be implemented as a retaliation for an individual excersing their First Amendment rights.
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Old 03-01-2005, 10:26 PM   #29 (permalink)
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There's more to the law than you will learn watching "Law & Order" reruns.
Yeah, thanks, I'll take that into consideration.

You could have made it a lot simpler if you had just taken it upon yourself to shower us with your seemingly infinite legal knowledge by describing the mountain of legal data surrounding First Amendment retaliation cases.

Why haven't you mentioned it?
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Old 03-01-2005, 10:34 PM   #30 (permalink)
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Originally Posted by Manx
All those who don't think the First Amendment applies here should do a google search for First Amendment retaliation. There are assuredly circumstances, and this case is very likely to be one of them, where it is unlawful for negative actions to be implemented as a retaliation for an individual excersing their First Amendment rights.

And I think you'll generally find that the caselaw on this generally stems from litigation involving a GOVERNMENTAL actor. Start with Elrod v. Burns, 427 U.S. 347 (1976). Follow up with Rutan v. Republican Party of Illinois, 497 U.S. 62, (1990). Then hit Connick v. Myers, 461 U.S. 138 (1983)., quoting Pickering v. Board of Education, 391 U.S. 563 (1968).

What does all this caselaw have in common? GOVERNMENTAL ACTORS. That's not the case here.
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Old 03-01-2005, 11:04 PM   #31 (permalink)
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Whether it's illegal or not, I don't think it's right. If you are going to fire someone for thier political affiliations, that seems like discrimination to me.

To answer the original poster, an employer should have the right to dictate speech directly related to banking business. But what the woman said had nothing to do with bank business until -after- she'd already said it.
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Old 03-01-2005, 11:10 PM   #32 (permalink)
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Daswig, you and a few google searches have convinced me. Her case on the grounds of retaliation or violation of free speech has no grounds.
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Old 03-02-2005, 01:32 AM   #33 (permalink)
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You're telling me one should not express his opinion at a school board meeting where the purpose is to DEBATE and gather DIFFERING viewpoints? The whole "Your opinion is different and therefore wrong" attitude you seem be displaying is the entire reason this lady got fired in the first place.
She should have fought being fired, the man should not have fired her.

BUT, the first amendment has nothing to do with this. The first amendment says nothing about protecting a persons job from what they speak publically. What if an employee of a daycare center came out and publically supported NAMBLA (I know already posted but still). Now if her speaking out hurt the corporation, how is it any different than my post?

If she was smart she'd start a program to boycott the company and hit it where it hurts, but she took the easy way out to make a buck.
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Old 03-02-2005, 04:29 AM   #34 (permalink)
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One point that seemed to be pushed aside here is the amount of damages awarded in the first trial. A few people said "Yeah, thats too much" but you have to realize that when you deal with a huge entity like First State Bank it takes alot to make them hurt. Thats why you have people who sue McDonalds for having too hot of coffee or for making them fat and getting a million or more dollars. Anything less isn't even a slap on the wrist for a company that does business in the hundreds of millions or billions of dollars.
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Old 03-02-2005, 06:44 AM   #35 (permalink)
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Daswig, you and a few google searches have convinced me. Her case on the grounds of retaliation or violation of free speech has no grounds.
Are you being sarcastic?
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Old 03-02-2005, 07:36 AM   #36 (permalink)
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Are you being sarcastic?
Not at all.
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Old 03-02-2005, 07:44 AM   #37 (permalink)
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Originally Posted by Manx
Not at all.

>GASP<

/wonders if Manx is feeling OK. Best wishes for a fast recovery...
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Old 03-02-2005, 07:55 AM   #38 (permalink)
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I'm reminded again how much a pleasure it is to converse with you, daswig.
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Old 03-02-2005, 12:10 PM   #39 (permalink)
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I always love it when people are willing to go against their first reaction when provided good evidence. I've done it a couple times here, it's tough but shows great maturity.
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Old 03-02-2005, 12:57 PM   #40 (permalink)
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Originally Posted by Seaver
I always love it when people are willing to go against their first reaction when provided good evidence. I've done it a couple times here, it's tough but shows great maturity.
Personaly, I find that crow goes down a little easier with a mild honey mustard sauce.
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"Hedonism with rules isn't hedonism at all, it's the Republican party." - JumpinJesus

It is indisputable that true beauty lies within...but a nice rack sure doesn't hurt.
Bill O'Rights is offline  
 

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