Last year the First Circuit’s decision in United States v. Moloney, requiring two scholars from Boston College to forcibly disclose their confidential research, shocked the academic world. This high-profile subpoena case brought the idea of a “scholar’s privilege” to the forefront of the legal arena once again. The outcome of the case—the forcible disclosure and the denial of the scholar’s motion to quash – was not, by itself, all that surprising. But the vague, general lack of analysis on which the First Circuit denied the assertion of a “scholar’s privilege” was indeed both shocking and inappropriate.
There are two questions that must be answered to clear up ambiguities in this hybrid problem of evidentiary and constitutional law. The first is whether a scholar’s privilege does or should exist. The second is if the scholar’s privilege does exist, how can the courts uniformly apply the privilege?
This note advocates that the scholar’s privilege should exist as a qualified privilege. This note further advocates that the circuits should reject their current arbitrary use of the privilege and instead apply a balancing test that accounts for the interests of both the academics attempts to protect their research and the party seeking disclosure. Although the Supreme Court of the United States denied certiorari to United States v. Moloney, the issue of the scholar’s privilege will not fall by the wayside. The time has come for a definitive, specific ruling on the issue. We must find a better way for scholars and subpoenas to co-exist.
Dawnmarie Souza, an employee of American Medical Response of Connecticut, was terminated for referring to someone as a “17” in a Facebook status. While this may seem outlandish, the “someone” Souza was referring to was her boss and the “17” was company jargon for a mental patient. The status, wherein Souza also called her boss a “scumbag,” prompted numerous responses from other employees of the company who also shared their comments regarding the supervisor. Souza was suspended and subsequently terminated for her Facebook posts because they violated the Employer’s blogging and Internet policy. The Acting General Counsel (“AGC”) for the National Labor Relations Board (“NLRB”), in turn, filed an unfair labor practice charge against the Employer, finding that the discharge of the employee for the Facebook post was unlawful because it violated the employee’s right to engage in “concerted activity” under Section 7 of the National Labor Relations Act (“NLRA”). While the case was settled before it could be heard by the Board, it is only the tip of the iceberg in a slew of social media cases the Board will confront as a result of the popularity of networking sites like Facebook and Twitter.
The NLRB has long protected the rights of employees to make negative remarks about working conditions and supervisors, recognizing that such activities are a facet of concerted activity. However, this precedent was developed prior to the onset of the social media frenzy, which has raised the question of what an employer may reprimand its employees for. May an employee disparage their employer on Facebook, possibly exposing the employer to liability, and argue that this is “concerted activity?” Lafe Solomon, the AGC of the NLRB, has said these social media posts are no different from those conversations taking place around the water cooler. However, this stance does not account for the pervasiveness of social media commentary. What was once an opinion shared at the lunch table amongst employees now has the potential to spread to hundreds of people, the majority of whom are presumably not employees, with a single mouse click. Originally enacted during the New Deal era to protect the rights of employees to unionize, the NLRA is thus far being applied arbitrarily to social media cases in a way that is too restrictive on employers. As union presence diminishes, some corporate officials assert that the NLRB is intervening in the social media context in an attempt to expand its power in the workplace.
The popularity and universal accessibility to social media has changed the context of labor relations and this change should be considered when applying provisions of the NLRA to the 21st century workplace. This note will first address the framework of the NLRB. It will then address the traditional rules for protected concerted activity determinations, and subsequently examine the NLRB’s application of these traditional rules to the social media context. Next it will discuss inconsistencies and problems resulting from this application. This note will conclude with a proposal for applying heightened scrutiny to find protected, concerted activity and a balancing test looking to the totality of the circumstances.
Roberta M. Harding
“All over the United States there is a
growing sentiment to do away with
capital punishment . . . . If their mood
is reflected in the letters they write me
daily, a large segment of the Kentucky people
want capital punishment abolished, too.”
-Former Kentucky Governor Edward
Breathitt, May 5, 1965
The first officially recorded execution in Kentucky was carried out in 1780, the year after Kentucky County became the District of Kentucky of the State of Virginia, when a man was hung for murder in Breckinridge County. The next four executions also were carried out during Kentucky’s tenure as the District of Kentucky. These condemned and their predecessor had an attribute in common that is extremely germane to how the death penalty has been administered in Kentucky: their gender, which is male. A prodigious gender bias, which disfavors male capital offenders, is evident in Kentucky’s historic and contemporary death penalty practice. Since the first execution in 1780and the last in 2008, the Commonwealth has executed 427 people. 415 males and 12 females. The latter account for a paltry 3% of those executed by the Commonwealth, while men account for a whopping 97%! Amazingly the last time Kentucky executed a female capital offender was in the 19th century; while male capital offenders were executed for the remainder of the 19th century and in the 20th and 21st centuries. Contemporary capital sentencing statistics aptly convey how deeply entrenched this bias is in the operation of the death penalty. Since 1972, when the United States Supreme Court handed down its seminal decision in Furman v. Georgia, the Commonwealth has sentenced eighty-two people to death, 96% were male and 4% were female. Incredibly, these percentages are almost identical to those based on more than two centuries of execution data. The existence of this bias, however, is not unique to Kentucky; nor has it gone unacknowledged.
The first five people executed also represent another inveterate basis for discrimination found in Kentucky’s historic and modern use of capital punishment: race. Baysinger, the first person to be executed, was white and the quartet following him were African-American. Thus, 80% of those executed when Kentucky was still a District were of color. This specific bias, as well as its tenacity and pervasiveness, are easily understood when the quartet’s status is considered: All were slaves. The institution of chattel slavery in Kentucky greatly affected the “racialization” of the administration of capital punishment in the Commonwealth. “Slavery existed in Kentucky from its first days of settlement” and was an important issue at the Convention to draft Kentucky’s First Constitution. Kentucky’s strong pro-slavery sentiment was embodied in Article IX of the First Constitution, which prohibited “the passage of legislation which tended to abolish slavery in the state.” The Constitutions produced at the Second and Third Constitutional Conventions, held respectively in 1799 and 1849, reinforced this institution of inequality by codifying assurances to protect slavery from being abolished. “The prominent place given the institution [of slavery] in the first three constitutions” led noted Kentucky historian Thomas Clark to describe Kentucky’s “hold on slavery” as “tenacious,” but strangely, “[w]hen the Civil War began, Kentucky was one of four slave states that remained in the Union.” As the War progressed, however, more and more Kentuckians became outraged by what they perceived to be a federal government that was increasingly taking on the abolitionists’ cause: “[t]hey were fighting for the preservation of the Union, not the destruction of slavery.” The mere suggestion of emancipation sent some to the verge of apoplexy. This fervor is illustrated by one newspaper editor’s impassioned comments:
[I]f the slaves were freed 200,000 soldiers would be
required ‘to retain Kentucky in the Union, and then
the soldiers would be compelled to aid in exterminating
the black race.’ If the slaves were freed, he asserted,
‘there is but one thing to be done with them; they must
be wiped out-totally obliterated. It must be a merciless,
savage extermination . . . . The two races . . . cannot
exist in the same country, unless the black race is in slavery.
Sentiments of this tenor were officially validated when the legislature passed a law permitting the enslavement of any African American entering Kentucky who stated they owed their freedom to the Emancipation Proclamation. Kentuckians’ anger escalated when President Lincoln decided to recruit African Americans to fight in the war because “it challenged the basic assumption that blacks were inherently inferior to whites.” While Kentucky did not end up seceding, the legislature did refuse to ratify the Thirteenth Amendment. Even after the Secretary of State announced the Amendment had been ratified, the Kentucky legislature “refused to change its stance” and again voted down ratifying the Amendment. By all indications, racial inequality had become indelibly ingrained in Kentucky’s social fabric, which adversely affected the workings of the state’s criminal justice system; especially when deciding who should live and who should die.