Friday, November 9, 2018

The State of Social Media Today & Our Complicity

The state of social media and "grassroots" journalism by well-meaning Americans and Brits can only be described as a tragicomedy of Shakespearean proportions. 
The man in question is wearing a shirt with a noose--signifying a lynching--over an old Southern flag and the words, "Mississippi Justice." For most discerning folks, the noose, not the flag, is the main issue. After all, Mississippi's official state flag includes the Confederate "Southern cross," and I've seen several stores in Asia selling Confederate flag merchandise to young buyers who probably discovered "Sweet Home Alabama" on Spotify. Here, we have no way of knowing--without further investigation--whether the man wearing it actually advocates vigilantism or racism. 

Basic logic ought to tell us that without due process--a seemingly forgotten value along with its cousin, humility--we don't know if the shirt was his father's and a keepsake, or whether he was wearing it as a reminder of Southern history. Wearing a diamond ring doesn't mean its wearer supports "blood diamonds" and African exploitation, just as driving a gasoline-powered car doesn't mean you hate the environment. 

Unfortunately, in this case, the reasoning is most likely simple: Mr. Clayton Hickey, a former Memphis police officer who resigned after a questionable situation involving a 17 year-old girl, probably just liked the shirt. I wouldn't want my local police officer anywhere near a noose, but my greater concern is we've accepted a society where we cannot easily access his law enforcement conduct--done on the taxpayers' dime--and yet, his voting behavior--which is supposed to be private--was the cause of his downfall. 

Mr. Hickey is an easy target. He has a stereotypically white name, a controversial history, and an apparently large presence. Yet, he seems to have reformed himself as a male nurse, and nowhere do we see any indication his nursing skills were deficient or discriminatory. I wonder if we realize it is the Mr. Hickeys of the world the law and due process are supposed to protect, just as they should if he were named Mr. Daquan Johnson with a juvenile criminal conviction, voting in a booth wearing an N.W.A. shirt. 

Once upon a time, as an employment lawyer, I believed in the law's ability to protect minorities; to protect employee off-the-job behavior irrelevant to one's position; and especially to keep the mob from jumping to conclusions before all the facts were in. Today, I wonder what anyone can really do when the mob is all of us: the hospital that fired him, the man who posted the photo without actually speaking to him, and every online commentator who twists the knife further into the coffin of the once-cherished value of American due process. Have we no shame? Or at least the decency to spend our time on something worthwhile? 

Bonus: most Americans are unaware American hospitals are tied closely to government policies and funding. "State governments became the largest single source of funds for virtually every major hospital in the country, giving them the power to influence--or even dictate--the policy decisions made by these hospitals." -- John Steele Gordon, Imprimis, 9/2018


Slim Smith said...

First, my credentials: I am a seventh-generation Mississippian. My 4x grandfather fought for the Confederacy and died in the Battle of Lovejoy Station in Georgia (1854). His 3x grandfather was a plantation owner in South Carolina. In his will, he left his possession, including 14 African slaves, to his children.
Now on to the subject at hand:
You provide several possibilities to explain why Mr. Hickey would be wearing the T-shirt with the Confederate Flag and the noose, but easily the most likely, most logical explanation is that this man, well into his adult years, recognized what these images symbolized. In fact, in this time, in this place, in this circumstances, the possibility that HIckey was wearing this shirt for any other reason that he affirm his racism is statistically irrelevant. These symbols, in this part of the world, ar not subtle. They are immediately recognized as symbols of racism, hate, white supremacy.
The larger point, however, is your claim that Hickey has been denied or will be denied due process. As you know, that is a legal term and is applied to legal matters. I know of nothing that even remotely suggests Mr. Hickey's due process rights have been violated. In fact, even if so much public pressure is brought to bear that he was terminated from his job. He works in Tennessee and Tennessee, is a "right to work" state, which means employees can be fired at will. And since he works for a private employer, he is not protected by the First Amendment, which applies only to state suppression of rights.
So, you are almost certainly wrong on your first point and absolutely wrong on the second.

Matt Rafat said...

A few quick points:

First, hospitals are not government-free zones. Given the connection between one's job and one's livelihood, plus the government's subsidizing of hospitals--either directly or indirectly through nonprofit status--we can argue most hospital workers have property rights in their jobs. This means nothing except that one's property cannot be taken away without both procedural and substantive due process. There are serious doubts as to whether this gentleman received substantive due process.

Second, the right to privacy is not only enshrined in the federal Constitution. "Mississippi recognizes a right to privacy and the appropriation branch of that tort for the wrongful appropriation of another’s identity. The Mississippi Supreme Court has expressly held that plaintiffs can recover for both emotional and economic damages, and has endorsed the Restatement (Second) of Torts approach." Candebat v. Flanagan, 487 So. 2d 207 (Miss. 1986); Deaton v. Delta Democrat Pub. Co., 326 So. 2d 471 (Miss. 1976); Martin v. Dorton, 50 So.2d 391 (Miss. 1951); Harbin v. Jennings, 734 So. 2d 269 (Miss. Ct. App. 1999). If one's conduct outside of work--to the extent it has no bearing on one's work duties in the abstract or in actual implementation--is not protected, the right to privacy simply does not exist. In short, if an employer receiving state and federal subsidies is able to reach into its employees' conduct without limitation, the state and federal Constitution's right to privacy is rendered moot.

In Tennessee, a similar right to privacy exists: "In Davis v. Davis, 842 S.W.2d 588 (Tenn.1992), we recognized that, although a right to privacy is not mentioned in either the federal or Tennessee Constitutions, 'there can be little doubt about its grounding in the concept of liberty reflected in those two documents.' Id. at 598. We observed that 'the notion of individual liberty is deeply embedded in the Tennessee Constitution' and concluded 'that there is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee Declaration of Rights.' Id. at 599, 600.  Although Tennessee's right of privacy incorporates some of the features of the right to privacy under the federal constitution, we are free to extend greater protection in applying our own state constitution.  Id. at 600." See Doe v. Sundquist (1999).

Your other arguments rely on a subjective reading of Mr. Hickey's shirt, so I will not waste my time responding.

Brundin Gar said...

At the end of the day, your legal reasoning is flawed and unpursuasive. There is no right to privacy in a public space. Period. What you do in a public space you cannot retroactively claim private protection. Also, without statutory law, there is no entanglement of private entities with limitations on government solely because of the receipt of funds. There exists law that specifically and explicitly limits contractors, but this wouldn't fall even under one of those. At the end of the day, it's a right to work state. The employer can fire him for any reason they see fit, and they have no obligation to even state a reason for the firing. His employment is not property, and no court has ever ruled it to be so. Lastly, the due process cause doesn't apply to private entities. Period.

Matt Rafat said...

A "right to work state" merely means unions cannot disadvantage everyone else by lobbying for special protections. Government unions and their lawyers are exactly why we have corrupt police officers and other incompetent workers still on the payroll. The absence of an express right to unionize, which weakens MS police departments' ability to dictate demands to city councils, is one reason Mr. Hickey was terminated rather than merely re-assigned or demoted for his conduct as Memphis police officer. In short, if taxpayers cannot remove incompetent or corrupt gov workers without spending six figures on lawyers plus several years of procedural wrangling in a separate and distinct legal system, public trust weakens. It is in fact the failure of gov unions to self-police that has led to a Republican resurgence in America, ushering into power otherwise asinine people like Wisconsin's Scott Walker. (Given a choice between incompetent and crazy, Americans will choose crazy every single time.)

In addition, a Southerner is the least appropriate person to make an argument in favor of separate and unequal rules and procedures for a small, connected group of people. In contrast to your preferred path to social discord, my reading of state constitutions provides a basis for all workers--not just politically connected ones--to receive some form of redress against arbitrary management.

A right to privacy is a fundamental right afforded to all Americans--regardless of whether they are unionized. Voters in particular have a right to privacy, which was obviously not provided to Mr. Hickey. Had he been wearing his shirt outside a voting booth, the legal scenario would be more complex, but in this case, it's much easier: for privacy to be a viable right, we cannot allow any entity to extinguish property rights without both procedural and substantive due process. Thus, the sole question here is whether Mr. Hickey's job at a publicly subsidized hospital, which receives government funding through various forms of Medicare and/or Medicaid, can remove a man's property based on his voting-related conduct. You argue his job, despite the hospital requiring some form of public subsidy to survive, is not his property and therefore not entitled to due process. I disagree.

Lawyers in every era have lost credibility by refusing to keep up with the times, and as our economy has become more globalized as well as more dependent on government spending, the law has not kept up. As a result, we are in a position where it's considered reasonable to argue only unionized workers deserve due process, even though most people realize American union leadership is corrupt and has assisted in creating massive pension shortfalls in collusion with the financial sector. I will not be a party to a separate and unequal system that places some workers above others based on their level of political donations and/or connections, but it's interesting you are willing to argue in favor of a position that has clearly led to more distrust of government employees, less budgetary flexibility, and reduced accountability.

Brundin Gar said...

You seem to be missing the main point. That is not the only, nor even most impact function of right to work legislation. It includes the right of business owners to hire and fire for any reason that they want, insofar as they do not do so on the basis of a protected class. Racist speech is not a protected class. They also exempt police unions in almost every state. So your point is both logically and factually incorrect.

Did you say that my points are not valid because I'm a southerner?

Read this clearly - there is no right to privacy in a public space - There has never been.

Reimbursement for services rendered is not subsidization, and does not extend government restraints to a private party. If what you suggest were true, I could restrict your behavior because you take tax deductions and refunds. That's patently absurd.

You don't know what the hell you're talking about, and the more you speak, the more it becomes obvious. Your best bet is to stop talking and maintain whatever illusion of intelligence you can hold on to.

Matt Rafat said...

Brundin, I'm not giving legal advice, but let me speak generally.

1. Most employment is "at will," meaning employers may hire and fire without consequence, but that is only the initial baseline. In many states, employers cannot terminate, discriminate, or retaliate against an employee or applicant for a multitude of reasons, only one of which is a protected class (i.e., race, color, gender, etc.). Thus, even in an at-will state, employers cannot generally terminate an employee if the termination violates a strong public policy--such as privacy.

Public policy affirms a voter's right to privacy, especially within a specifically designated voting area. A voting area cannot be considered a public space in the same way as a public street, and certainly clear differences exist between a private citizen voting in a specially designated area vs. a private citizen walking down the street--at least if the law purports to care about voter privacy.

2. You may benefit from more research into privacy laws. In theory, even if a private citizen were walking down a public street in daytime, if a business took his or her photo and published it, there could be several legal violations relating to privacy, such as misappropriation of the right to publicity. If the government is involved, then any studious high schooler in America would tell you the 4th Amendment comes into play--even on a public street.

3. You wrote, "Reimbursement for services rendered is not subsidization, and does not extend government restraints to a private party. If what you suggest were true, I could restrict your behavior because you take tax deductions and refunds."

In a very narrow sense, you may be correct, but in this scenario, the public policy of protecting voter privacy would benefit from an individually-tailored analysis. If a hospital could not survive without government payments and/or a special tax exemption signifying greater obligations to the general public, the line between the government and a purely private entity becomes blurred, and an entity unable to show it is truly separate from government decisions may require greater scrutiny if its action violates or restricts a fundamental public policy.

Again, nothing herein is legal advice. We are merely having an intelligent discussion--or, in your case, attempting one.

Matt Rafat said...

Bonus: "State governments became the largest single source of funds for virtually every major hospital in the country, giving them the power to influence--or even dictate--the policy decisions made by these hospitals." -- John Steele Gordon, Imprimis, 9/2018