The VLW Blog

A Roanoke government gadfly who was tossed from a city council meeting after shouting from the back of the room has been granted an appeal by the Supreme Court of Virginia.

E. Duane Howard was convicted of disorderly conduct under a city ordinance and the Court of Appeals affirmed. Now, the Supreme Court has agreed to hear Howard’s appeal based on, among other things, the argument that the “decision creates an unconstitutionally vague standard whereby speech can be determined to be disorderly conduct based purely upon the volume of the speech.”

By Peter Vieth

The 4^th US Circuit Court of Appeals, with an opinion by Judge Designate Sandra Day O’Connor, rejected the claim of a man who said his free speech rights were violated because his fellow members of the Fredericksburg City Council would not let him pray “in Jesus’ name.”

The opinion is here. The Associated Press has comment from the ACLU and the Rutherford Institute, which took up the case of the Rev. Hashmel Turner.

By Peter Vieth

A Hanover County woman who has made a crusade of targeting Internet publication of Social Security numbers filed suit today in federal court in Richmond to block a Virginia law that she says is aimed at her.

B.J. Ostergren has obtained from the Internet the Social Security numbers of state legislators and officials and such prominent people as Jeb Bush, Colin Powell and Joe Namath. She has published them on her own Web site and displayed them at public meetings.

This year, the General Assembly amended Virginia Code § 59.1-443.2, which generally restricted the use of Social Security numbers but contained an exception for “records required by law to be open to the public.” The amendment, which takes effect July 1, eliminates the exception.

The Virginia ACLU is representing Ostergren, who contends that the law violates her First Amendment rights. The suit names Attorney General Robert McDonnell as a defendant and asks for a declaration that the amendment is unconstitutional.

The Associated Press has the details.

By Alan Cooper

If you believe that the US Constitution gives you the right to send anonymous non-commercial e-mails, your champion at the Supreme Court of Virginia is spammer Jeremy Jaynes. As the Richmond Times-Dispatch reports, Richmond attorney Tom Wolf made the case for Jaynes before the court on Wednesday as he seeks relief from his 9-year prison sentence.

A divided Supreme Court of Virginia has affirmed the computer crime conviction and nine-year prison sentence of a North Carolina man who sent mass quantities of spam – unsolicited bulk e-mail – through AOL servers in Northern Virginia.

Defendant Jeremy Jaynes of Raleigh was considered among the top 10 spammers in the world when he was charged in 2003 in the nation’s first felony prosecution against illegal spamming.

A Loudoun County jury convicted him of three counts of violating the Virginia Computer Crimes Act for spamming AOL users with offers to sell products such as a “Penny Stock Picker,” a “History Eraser” and a FedEx refund claim.

The state high court upheld the conviction today in Jaynes v. Commonwealth. The majority opinion by Justice G. Steven Agee rejected the notion that Jaynes, whose conduct clearly was criminal under the statute, had standing to challenge the statute on First Amendment grounds that might cover other kinds of protected speech.

Agee said a criminal defendant such as Jaynes could not invoke First Amendment protections for some hypothetical defendant not charged with a crime in order to win a “Get Out of Jail Free” card in his own case.

But three dissenting justices said the court’s precedent granted Jaynes standing, and the statute is “unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails,” including political, religious or other speech protected by the First Amendment.

The First and Second Amendments to the U.S. Constitution seldom are as juxtaposed as they were today before the Senate Courts of Justice Committee.

The debate was over Senate Bill 529, carried for the Freedom of Information Advisory Council by Sen. R. Edward Houck, D-Spotsylvania. The bill was largely a response to the posting last year by The Roanoke Times of the Virginia State Police database of holders of concealed weapon permits on its Web site.

The resulting furor was such that The Times quickly removed it. Houck’s bill generally prohibits public disclosure of the database but still allows anyone to go a circuit court clerk’s office and check to see whether anyone has a concealed weapon permit.

Gun rights advocates pressed to have even those records kept secret, or, at the very least, to allow permits issued at the request of crime victims or those with a law enforcement connection to be private.

Craig Merritt, representing the Virginia Press Association, said the group supported the legislation. He noted that judges can seal such records now if an applicant can show a compelling interest for doing so. Routine sealing of individual public records at a courthouse is inconsistent with the First Amendment, he said.

“I would urge you to be very careful about shrouding this process in secrecy,” said Sen. William Roscoe Reynolds, D-Martinsville, told his colleagues, noting that part of the tradeoff for the state’s relatively liberal concealed-weapon policy is a public record of who has such a permit.

The committee reported Houck’s bill to the full Senate on a 13-2 vote, with senators Ken T. Cuccinelli II, R-Fairfax, and Robert Hurt, R-Chatham, voting no.

Grundy native Lee Smith, the award-winning author who has chronicled life in Southwest Virginia in a number of novels, was back in her home region this week. She had a speaking engagement at the University of Virginia’s College at Wise.

She was asked about an effort to ban her novel, “Fair and Tender Ladies,” by the Washington County School Board. The novel details the life of a young woman in Appalachia and includes a short passage about her first sexual experience. Some of the words used are “crude,” prompting the school board to appoint a committee to review the book and determine if high school honor students should read it.

Smith told the Bristol Herald Courier that she was sorry to hear about the book-banning effort. The novel is “a love story to Southwest Virginia,” she said. “Fair and Tender Ladies” is an homage to the older Appalachian women she knew growing up, she added.

Is using your office e-mail with its signature stamp the same as using office letterhead?

Should anyone down a chain of distribution that you can’t control assume that your e-mail speaks for your employer?

Office e-mail comes pretty close to company letterhead, according to one federal judge who considered the question in an unpublished opinion in Bowers v. Rector and Visitors of the University of Virginia (VLW 007-3-092), a case that has generated some buzz in Charlottesville over the past two years

“The law on the use of office e-mail systems is in its infancy,” said U.S. District Judge Norman K. Moon. He drew on precedent involving more traditional modes of communication to dismiss the First Amendment suit filed by Dena Bowers, a former employee of the human relations department at U.Va.

Bowers had used her university e-mail account to send a coworker and fellow NAACP member documents generated by that group that purportedly were critical of a university restructuring proposal. The e-mail was successively forwarded and ultimately went to hundreds of people, according to the court opinion.

The university contended that Bowers had been less than cooperative in helping to clear up the matter, and several weeks later it fired her.

In deciding how much protection the law afforded Bowers’ speech, Moon said his most serious concern arose “from the use of the signature or ‘stamp’ at the end of the e-mail that identified the sender” as a university HR employee.

Moon said that although Bowers “was not officially authorized to speak for the University, her e-mail misled others into thinking that she was,” and the court had to “hold her to the standards of those who are actually permitted to speak for government agencies: she must stick to the party line or face discipline,” Moon wrote.

“[N]obody would think to use University letterhead for personal messages, and e-mail signatures like the one in this case resemble official letterhead closely enough that the two should be treated the same way,” the judge said.

Bowers’ associational claims were not so easily dismissed, Moon wrote.

She “was justified in defending her rights and those of her fellow opponents of University restructuring by refusing to answer questions about the sources of data and preparation of her e-mail attachments.” But the associational right Bowers asserted was not clearly established, so the defendants were entitled to qualified immunity, Moon ruled.

Bowers has noted an appeal.

Here’s one for the public-sector employment lawyers.

Those lawyers know that public employees have First Amendment rights and can sue employers who abridge those rights.

But the First Amendment only protects employee speech on matters of “public concern.” A lot of workplace speech can involve issues peculiar to that workplace and personal to that employee. It isn’t always easy to see when an employee crosses the line.

Even a case close to the line can result in qualified immunity for the defendant, the 4th U.S. Circuit Court of Appeals ruled last week. The “speech” at issue was of public concern but the defendants were off the hook because it wasn’t clear from existing case law that it was, the court said in Campbell v. Galloway (VLW 007-2-061).

Amy Campbell contended that she was fired from the Southern Pines, N.C., police force after she wrote a 13-page memo to the chief. Some of the complaints in the memo were clearly personal and peculiar to the police department—the male cops didn’t invite her to breakfast, for example—but other allegations of sexual harassment were another matter, the court said. Campbell cited one instance in which a male officer reached down Campbell’s pants to retrieve a gun and another in which a male officer required a female DUI suspect to use the toilet with the door open, even though Campbell was available to act as escort.

The 4th Circuit said that sexual harassment complaints are not “per se” a matter of public concern. But its decision in Campbell might be the type of case law that “clearly establishes” just what type of sexual harassment allegation is a matter of public concern and make qualified immunity a more difficult plea to sustain.