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Daniel P. Tokaji is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law.

A constitutional standard for partisan gerrymandering is the holy grail of election law. For decades, scholars and jurists have struggled to find a manageable standard for claims of excessive partisanship in drawing district lines. Most of these efforts have focused on the equal protection clause. But as Justice Anthony Kennedy suggested in Vieth v. Jubelirer, the First Amendment provides a firmer doctrinal basis for challenging partisan gerrymandering. An established line of precedent understands voting as a form of expressive association protected by the First Amendment. These cases offer a nuanced standard that would avoid the undesirable result of rendering any consideration of partisan consequences unconstitutional.

The right of expressive association

There is an obvious difficulty in relying on the First Amendment in partisan-gerrymandering cases: The Supreme Court has never considered voting a form of protected speech. It has, however, long recognized that voting is a form of protected association, at least in certain contexts. Before getting to those cases, its helpful to examine the roots of the right of expressive association.

The original associational-rights cases involved groups like the NAACP and the Communist Party that were extremely unpopular one might even say persecuted in many parts of the country. In NAACP v. Alabama ex rel. Patterson, for example, the Supreme Court invalidated a requirement that the NAACP disclose its membership list. Justice John Marshall Harlan IIs opinion for the court remarked that the freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. In other words, expressive association is a necessary corollary of free speech.

The right of expressive association is closely linked to the First Amendments prohibition on content and viewpoint discrimination. As Justice Antonin Scalia put it in one of his last dissenting opinions, the First Amendment is a kind of Equal Protection Clause for ideas. It prohibits the government from abusing its authority to suppress disfavored points of view. Most importantly, it restricts the dominant political groups authority to diminish the voices of those who might challenge their grip on power.

Thus, in the first generation of association cases, disfavored groups like the NAACP and the Communist Party relied on the First Amendment to prohibit the government from taking adverse action against them and their members. These cases rest partly on the individual liberty interest identified in NAACP v. Alabama. But theyre also grounded in a larger vision of how democracy should function.

A leading example is the line of patronage cases that began with Elrod v. Burns, in which the Supreme Court struck down the practice of firing public employees who werent members of the Democratic Party, which controlled Cook County, Illinois. After describing the harm to individual employees, the plurality turned to systemic concerns arising from this practice: It is not only belief and association which are restricted where political patronage is the practice, wrote Justice William Brennan. The free functioning of the electoral process also suffers. Discrimination against non-party members tended to starve political opposition, thus tip[ping] the electoral process in favor of the incumbent party. In other words, party-based discrimination distorts the political process, entrenching the dominant party in power while subordinating its chief rival.

Voting as association

Partisan gerrymandering effects a comparable systemic harm, albeit through a different mechanism. By manipulating district lines, the dominant party can entrench itself in power even when the political winds shift. The increasingly sophisticated technology that line-drawers have at their disposal exacerbates the problem. It allows the dominant party to capture a large percentage of seats while ensuring that its majority will hold in both bad times and good.

Thats true not only in Wisconsin, from which Gill v. Whitford emerges, but in other states that would be competitive but for gerrymandering. Take my own state of Ohio. Although Ohio is a consummate purple state in presidential elections, Republican mapmakers drew lines there in 2011 that give their party a supermajority of districts three-quarters of the states congressional delegation and roughly two-thirds of its state legislative districts. These districts were drawn with the goal of creating a firewall that would ensure Republican control even in a strong Democratic year. And theyve been a spectacular success, ensuring Republican control of the Ohio state legislature throughout the current decade. Because they diminish the power of the non-dominant party in a manner thats both substantial and enduring, excessive partisan gerrymanders violate the right of expressive association.

Still, one might argue that compelled disclosure and patronage are very different from redistricting. In the original association cases, particular individuals were harmed discouraged from or punished for affiliating with disfavored groups. Moreover, those cases dont directly involve voting. Its a leap, one might argue, to hold that the right of association is implicated when voters, candidates and parties associate through the electoral process.

As it turns out, the Supreme Court made this leap long ago. For almost a half-century, the court has recognized that voting is a form of association protected by the First Amendment. The first voting-as-association case was Williams v. Rhodes, which challenged Ohios ballot-access requirements for new political parties like George Wallaces American Independent Party. Justice Hugo Blacks opinion for the court relied on both the First Amendment right of association and equal protection to strike down this requirement. Ohios onerous rules for adding new parties to the ballot gave the two old, established parties a decided advantage plac[ing] substantially unequal burdens on both the right to vote and the right to associate. In Williams, the Supreme Court thus stressed the risk of dominant parties using voting rules to entrench themselves in power, thereby harming non-dominant parties and their supporters.

Several years later, in Anderson v. Celebrezze, the Supreme Court again relied on the right of association to invalidate another ballot-access rule in Ohio, this time one that would have kept John Anderson from running as an independent presidential candidate in 1980. Justice John Paul Stevens opinion for the majority recognized that theres no litmus-paper test to separate valid and invalid restrictions on voting and association. Rather, the court should weigh the character and magnitude of the burden on voting and association against the states asserted interests. Although reasonable, nondiscriminatory restrictions can usually be justified by important regulatory interests, a stronger justification is required for more serious burdens, including ones that discriminate against outsider candidates and their supporters.

A subsequent case involving write-in voting in Hawaii, Burdick v. Takushi, reaffirmed Andersons flexible standard while clarifying that strict scrutiny applies only if the burden on voting and association is severe. Other cases like Tashjian v. Republican Party of Connecticut and Washington State Grange v. Washington Republican Party apply this standard to electoral rules that burden the associational rights of major parties and their adherents. The Anderson-Burdick balancing test is now used in constitutional challenges to a wide variety of election laws, including ballot access, blanket primaries and even voter ID. Whats not commonly recognized is that this legal standard originated in voting-as-association cases.

Applying the voting-as-association standard

Its true that the Supreme Court hasnt yet applied the Anderson-Burdick standard to partisan gerrymandering. In fact, the court has been maddeningly unclear about what legal standard should apply in these cases. But for several reasons, the standard emerging from the voting-as-association cases provides the best fit for evaluating partisan gerrymandering claims.

The first is that the First Amendment right of association best captures the type of injury alleged, specifically the lasting harm to non-dominant political parties and their adherents arising from the dominant partys self-entrenchment. Expressive-association cases have long focused on such harms, not only to the non-dominant party but to our political system. By contrast, equal protection law doesnt accord any special status to political party affiliation. Unlike race or sex, party affiliation isnt a protected class under the equal protection clause.

The second advantage of relying on the established voting-as-association standard is that it focuses on effects rather than intent. Recall that the Anderson-Burdick standard requires courts to weigh the character and magnitude of the burden on voting and association against the states asserted interests. An intent to harm the non-dominant party may be relevant, but it isnt required. Thats a good thing, because intent is notoriously hard to prove or disprove, especially in redistricting cases. The Shaw v. Reno line of racial-gerrymandering cases exemplifies this difficulty. Under those cases, the pivotal question is whether race was the predominant factor in drawing a particular district. Twenty-four years after Shaw, the Supreme Court is still struggling to explain what this means. An effect-based test is preferable. Though Anderson-Burdick is hardly a bright-line rule, its balancing standard has proven manageable in other voting contexts and can be adapted to partisan-gerrymandering claims.

This brings me to a third advantage of relying on the voting-as-association cases to assess partisan gerrymandering claims: It provides a nuanced legal standard. The Anderson-Burdick balancing approach would allow lower courts to sort through the evidence, striking down the most egregious and unjustified partisan gerrymanders without categorically prohibiting any consideration of party affiliation when drawing districts. Of course, partisan-gerrymandering claims demand hard judgments. There are no bright lines here. But the legal standard that the Supreme Court has long used in voting-as-association cases provides the best fit for partisan-gerrymandering cases like Gill v. Whitford.

Posted in Gill v. Whitford, Summer symposium on Gill v. Whitford, Featured, Merits Cases

Recommended Citation: Daniel Tokaji, Symposium: A path through the thicket the First Amendment right of association, SCOTUSblog (Aug. 10, 2017, 2:12 PM), http://www.scotusblog.com/2017/08/symposium-path-thicket-first-amendment-right-association/

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What do a local government contractor, a conservative activist in Sterling, gay rights leaders in Lovettsville, a Purcellville politician and members of a left-leaning political action group have in common?

All have been blocked from an elected officials social media account for challenging their policy positions.

Following a federal court ruling last month that said Chairwoman Phyllis (D-At Large) violated Lansdowne resident Brian Davisons First Amendment rights by blocking him temporarily from her Facebook page, residents from Loudoun and around the country have come forward with more stories about how they were censored from the social media pages of their elected officials.

For a politician to just say outright you're no longer allowed to post in this public forum that I've created, I think that does definitely cross a boundary, said conservative activist Rick Canton of Sterling.

Canton says he was blocked from Del. Kathleen Murphys (D) Twitter account in 2013 after he challenged her position on gun rights. He also says he was initially blocked from State Sen. Jennifer Wextons (D) Twitter account but later reinstated after challenging her on the same issue.

Jonathan and David Weintraub LGBTQ activists from Lovettsville -- claim they were preemptively blocked from Del. Dave LaRocks (R) Facebook page before they could even interact with him on the page. They believe LaRock banned them because of their liberal reputation on equal rights issues.

When it comes to being criticized and disagreed with and presented with information that might be inconvenient for [politicians], they should not be able to block that from happening in a public forum, David Weintraub said. And when they put up an official Facebook page that says, I am the delegate of the 33rd District, that's a public forum, its not a personal page.

Purcellville Town Councilwoman Karen Jimmerson says she has been blocked from State Sen. Dick Blacks (R) Twitter and Facebook accounts, as well as LaRocks Twitter page, though the delegate later reinstated her.

But Jimmerson finds herself in a unique and some would say hypocritical spot. She admitted she has blocked people from her social media page, which she maintains is a campaign page. Jimmerson said the users were banned because their comments were extremely vile postings that were personal in nature as opposed to focused on the subject being debated.

In addition to Jimmerson, Chairwoman Randall, Sens. Wexton and Black and Del. Murphy, Congresswoman Barbara Comstock (R) and state Del. Tag Greason (R) have also blocked citizens from social media pages.

A tide-turning decision, but confusion ensues

U.S. District Judge James C. Cacheris decision in Davisons case against Chairwoman Randall and the Board of Supervisors has already shown regional and national implications.

Lawyers from the Knight First Amendment Institute at Columbia University, which recently filed a lawsuit against President Donald Trump and his social media team, say the president suppressed dissent by blocking critics from his Twitter account. They said they plan to point to the Davison decision to help their case.

Some elected officials, like State Sen. Wexton and Del. LaRock, also appear to be taking steps to unblock constituents from their social media pages.

But mixed rulings on the issue from different judges from the same federal court has caused some confusion, as has debate over what are personal, campaign and official social media accounts.

A separate ruling on a free speech suit Davison brought against members of the Loudoun County School Board from a different judge in the same federal court said members of the School Board did not violate Davisons right to free speech for blocking him from their pages.

In a 20-page ruling, U.S. District Judge Anthony J. Trenga noted the issue was not clear as a legal matter whether the Facebook pages in question were limited or public forums.

Senator Wextons office said after the court clarified that public officials cannot block constituents, she unblocked accounts regardless of how they previously behaved.

Wexton's office said its social media policy has been to not block constituents as long as their messages did not become threatening or unnecessarily aggressive.

Delegate LaRock said that in the last few days he and his office have published a disclaimer on his Facebook page reserving their right to delete user comments that include profanity, name-calling, threats, personal attacks, or other inappropriate comments or material.

LaRock said members of the GOP caucus have also met to discuss the Davison decision, but they do not think the ruling will affect their social media accounts that are considered personal and treated as personal.

The western Loudoun delegate maintains his social media accounts are campaign accounts and not official government business. Altogether, he thinks he has banned roughly a half dozen people over the last six months, though he says he is open to unblocking them.

The only time I would delete a comment is if it is something that's out of context, or is just an unfounded accusation that is not really in any way connected with an inquiry for information, which I generally consider to be intentionally disruptive, LaRock said.

The American Civil Liberties Union of Virginia this week sent a letter to all members of the states congressional delegation asking them to stop blocking people from their official and unofficial social media accounts used for official purposes simply because they oppose what they are saying.

The ACLU said many of the complaints they received from constituents around the commonwealth did not distinguish the elected officials accounts between official and political.

But with the rulings coming out of federal court in Alexandria, Alan Gernhardt, head of the Virginia Freedom of Information Advisory Council, said they plan to talk about the recent decisions at a meeting later this month.

Were trying to stay aware of it, and were trying to watch things. I think we will try to address it sometime in the future, but we dont really have specific guidelines on social media right now, Gernhardt said.

Related coverage:

-"Loudoun resident files civil rights suits against county officials over social media censorship" -"Federal judge sides with Loudoun commonwealths attorney in First Amendment suit" -"Loudoun County chairwoman, Lansdowne resident meet in federal court" -"U.S. District judge rules Randall violated Lansdowne residents First Amendment right" -"Federal court dismisses Lansdowne residents free speech suit against Loudoun County School Board" -"Loudoun County residents First Amendment case may benefit free-speech groups suit against Trump"

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After landmark First Amendment ruling, more Loudouners share their stories of social media censoring - Loudoun Times-Mirror

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An emerging debate about whether elected officials violate peoples free speech rights by blocking them on social media is spreading across the U.S. as groups sue or warn politicians to stop the practice.

The American Civil Liberties Union this week sued Maine Gov. Paul LePage and sent warning letters to Utahs congressional delegation. It followed recent lawsuits against the governors of Maryland and Kentucky and President Donald Trump.

Trumps frequent and often unorthodox use of Twitter and allegations he blocks people with dissenting views has raised questions about what elected officials can and cannot do on their official social media pages.

Politicians at all levels increasingly embrace social media to discuss government business, sometimes at the expense of traditional town halls or in-person meetings.

People turn to social media because they see their elected officials as being available there and theyre hungry for opportunities to express their opinions and share feedback, said Anna Thomas, spokeswoman for the ACLU of Utah. That includes people who disagree with public officials.

Most of the officials targeted so far all Republicans say they are not violating free speech but policing social media pages to get rid of people who post hateful, violent, obscene or abusive messages.

A spokeswoman for Maryland Gov. Larry Hogan called the Aug. 1 lawsuit against him frivolous and said his office has a clear policy and will remove all hateful and violent content and coordinated spam attacks.

The ACLU accused Kentucky Gov. Matt Bevin of blocking more than 600 people on Facebook and Twitter. His office said he blocks people who post obscene and abusive language or images, or repeated off-topic comments and spam.

Spokesmen for Utah Sen. Orrin Hatch and Rep. Mia Love, who were singled out by the ACLU, said people are rarely blocked and only after they have violated rules posted on their Facebook pages to prevent profanity, vulgarity, personal insults or obscene comments.

We are under no obligation to allow Senator Hatchs Facebook page to be used as a platform for offensive content or misinformation, spokesman Matt Whitlock said.

Katie Fallow, senior staff attorney at Columbia Universitys Knight First Amendment Institute, which sued Trump last month, said theres no coordinated national effort to target Republicans. The goal is to establish that all elected officials no matter the party must stop blocking people on social media.

If its mainly used to speak to and hear from constituents, thats a public forum and you cant pick and choose who you hear from, Fallow said.

Rob Anderson, chairman of Utahs Republican Party, scoffed at the notion that politicians are violating free-speech rights by weeding out people who post abusive content.

You own your Facebook page and if you want to block somebody or hide somebody, thats up to you, Anderson said. Why else is there a tab that says hide or block?

Court decisions about how elected officials can and cannot use their accounts are still lacking in this new legal battleground, but rules for public forums side with free-speech advocates, said Erwin Chemerinsky, dean of the University of California-Berkeley Law School.

For instance, lower court rulings say the government cant deny credentials to journalists because their reporting is critical, he said.

These are government officials communicating about government business. They cant pick or choose based on who they like or who likes them, Chemerinsky said.

But public officials may be able to legally defend the way they police their social media pages if they prove their decisions are applied evenly.

Its got to content-neutral, Chemerinsky said.

Trumps use of social media and the Supreme Courts decision in June striking down a North Carolina law that barred convicted sex offenders from social media is driving the increased attention to the issue, said Amanda Shanor, a fellow at the Information Society Project at Yale Law School.

More and more of our political discussion is happening online, Shanor said. Its more important that we know what these rules are.

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Politicians, Social Media and the First Amendment - KDWN

Can the government ban the text of the First Amendment itself on municipal transit ads because free speech is too political for public display?

If this sounds like some ridiculous brain teaser, it should. But unfortunately its not. Its a core claim in a lawsuit we filed today challenging the Washington Metropolitan Area Transit Authoritys (WMATA) restrictions on controversial advertising.

The ACLU, ACLU of D.C., and ACLU of Virginia are teaming up to represent a diverse group of plaintiffs whose ads were all branded as too hot for transit: the ACLU itself; Carafem, a health care network that specializes in getting women access to birth control and medication abortion; People for the Ethical Treatment of Animals (PETA); and Milo Worldwide LLC the corporate entity of provocateur Milo Yiannopoulos.

To put it mildly, these plaintiffs have nothing in common politically. But together, they powerfully illustrate the indivisibility of the First Amendment. Our free speech rights rise and fall together whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.

Lets start with the ACLU. Earlier this year, following President Trumps repeated commentary denigrating journalists and Muslims, the ACLU decided to remind everyone about that very first promise in the Bill of Rights: that Congress shall make no law interfering with our freedoms of speech and religion. As part of a broad advertising campaign, the ACLU erected ads in numerous places, featuring the text of the First Amendment. Not only in English, but in Spanish and Arabic, too to remind people that the Constitution is for everyone.

The ACLU inquired about placing our ads with WMATA, envisioning an inspirational reminder of our founding texts, with a trilingual twist, in the transit system of the nations capital. But it was not to be: Our ad was rejected because WMATAs advertising policies forbid, among many other things, advertisements intended to influence members of the public regarding an issue on which there are varying opinions or intended to influence public policy.

You dont have to be a First Amendment scholar to know that something about that stinks.

Our free speech rights rise and falltogether whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.

Lets start with the philosophical argument. WMATAs view is apparently that the litany of commercial advertisements it routinely displays involve no issues on which there are varying opinions. Beyond the obvious Coke-or-Pepsi jokes, theres a dark assumption in that rule: that we all buy commercial products thoughtlessly. Buy beer! (Dont think about alcoholism.) Buy a mink coat! (Dont think about the mink.) That is, WMATA sees varying opinions only when they relate to something it recognizes as controversial. And as the Supreme Court recently reminded us, the government violates the First Amendment when it allows only happy-talk.

And now to the practical. This is a policy so broad and vague that it permits WMATA to justify the ad hoc exclusion of just about anyone. And the broad set of plaintiffs in this case confirms that.

Despite the fact that Carafem provides only FDA-approved medications, its ad was deemed too controversial because it touched the third rail of abortion. Carafems proposed ad read simply: 10-week-after pill. For abortion up to 10 weeks. $450. Fast. Private. As we at the ACLU know all too well, as states continue to erect draconian barriers to the right to choose, information about and access to abortion care is more critical than ever. Yet Carafems ad was apparently rejected simply because some people think otherwise.

One of PETAs intended advertisements depicted a pig with accompanying text reading, Im ME, Not MEAT. See the Individual. Go Vegan. Despite the fact that WMATA routinely displays advertisements that encourage riders to eat animal-based foods, wear clothing made from animals, and attend circus performances, PETAs side of this public debate was the only one silenced by the government.

WMATAs advertising agency suggested that with some changes, ACLU and PETA might be able to get their advertisements accepted. Perhaps PETA could remove the Go Vegan slogan from its advertisement? But for the ACLU, Youll have to dramatically change your creative. In other words, as long as we dont try to make anyone think, we might get the right to speak.

That brings us to our final client: Milo Worldwide LLC. Its founder, Milo Yiannopoulos, trades on outrage: He brands feminism a cancer, he believes that transgender individuals have psychological problems, and he has compared Black Lives Matter activists to the KKK. The ACLU condemns many of the values he espouses (and he, of course, condemns many of the values the ACLU espouses).

Milo Worldwide submitted ads that displayed only Mr. Yiannopouloss face, an invitation to pre-order his new book, Dangerous, and one of four short quotations from different publications: The most hated man on the Internet from The Nation; The ultimate troll from Fusion; The Kanye West of Journalism from Red Alert Politics; and Internet Supervillain from Out Magazine. Unlike Mr. Yiannopoulos stock-in-trade, the ads themselves were innocuous, and self-evidently not an attempt to influence any opinion other than which book to buy.

WMATA appeared to be okay with that. It accepted the ads and displayed them in Metro stations and subway cars until riders began to complain about Mr. Yiannopoulos being allowed to advertise his book. Just 10 days after the ads went up, WMATA directed its agents to take them all down and issue a refund suddenly claiming that the ads violated the same policies it relied on to reject the ads from the ACLU, Carafem, and PETA.

The ideas espoused by each of these four plaintiffs are anathema to someone as is pretty much every human idea. By rejecting these ads and accepting ads from gambling casinos, military contractors, and internet sex apps, WMATA showed just how subjective its ban is. Even more frightening, however, WMATAs policy is an attempt to silence anyone who triestomakeyou think. Any one of these advertisements, had it passed WMATAs censor, would have been the subject of someones outraged call to WMATA.

So, to anyone whod be outraged to see Mr. Yiannopoulos advertisement please recognize that if he comes down, so do we all. The First Amendment doesnt, and shouldnt, tolerate that kind of impoverishment of our public conversation. Not even in the subway.

At the end of the day, its a real shame that WMATA didnt accept the ACLUs advertisement the agency could really have used that refresher on the First Amendment.

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Xconomy San Francisco

Google software engineer James Damore confirmed to Bloomberg on Monday that Google fired him for circulating a lengthy memo on his views that women are biologically less suited to tech work than men.

His manifesto was spread through Googles internal communication channels over the weekend, and obtained by Gizmodo and other tech publications. Damore expressed his opinion that women are underrepresented in tech companies such as Google, not because of discrimination, but because, on average, women are naturally more inclined to concentrate on feelings rather than on ideas. Damore also professed his belief that women are more neurotic or prone to anxiety than men, as well as less competitive and more inclined to be collaborative.

Google acted quickly, firing Damore on grounds that his memo violated the companys code of conduct by propagating harmful gender stereotypes, according to the New York Times. Damore had criticized Google for its initiatives to promote diversity.

Damores ideas were roundly denounced by both women and men in the tech industry, including former Googler Yonatan Zunger, who is now at machine learning startup Humu. Zunger, an experienced engineer, said in a Medium post Saturday that traits Damore defines as female, such as empathy and the ability to collaborate, are the core traits which make someone successful at engineering.

But in the memo, Damore claims his views are shared by many fellow Googlers who have told him privately that theyre grateful to him for raising opinions they agree with but would never have the courage to say or defend because of our shaming culture and the possibility of being fired.

Its Damores claim that Google stifles dissent, in the memo he called Googles Ideological Echo Chamber, that may keep his ideas in the forefront of public debate. Signs are that he may sue Google, claiming a violation of his First Amendment rights, or of his rights under federal labor law.

If Damore challenges his firing on grounds that Google suppressed his free speech rights, hes unlikely to win, legal scholars say. But Damore may already have achieved part of his aims, in spades. His opinionsthough offensive to manyare now part of a public discussion in arenas much broader than Google internal memos.

Damores case has dragged Google into the ongoing political and cultural battle between right and left in the U.S.between conservative groups that resist diversity efforts, and employers such as universities that try to counter discrimination. This could turn out to be a bigger headache for Google (and potentially other companies) than an employment rights suit it may be likely to win.

David French, writing for the conservative magazine National Review, blasted Google for Damores firing. Of course Google did this, French wrote. Of course an increasingly radical progressive enclave cant handle thoughtful critiques of its ideological monoculture.

Google is a private company and has wide legal latitude to discipline its employees for their speech, but make no mistakethis is a direct assault on the American culture of free speech, French added.

Another writer forNational Review, Jim Geraghty, eagerly anticipates legal action by Damore. When does one employee holding an opinion contrary to another employees become harassment? My guess is that a lawsuit at Google is going to explore that question under the harsh glare of public scrutiny, Geraghty wrote.

Other conservative outlets, includingThe American Conservative and Breitbart,also jumped into the fray. Breitbart published a flurry of at least nine stories supporting Damores views.

On the other end of the political spectrum, The Guardians Owen Jones wrote under the headline, Googles sexist memo has provided the alt-right with a new martyr.

Jones wrote, Youre going to hear a lot about [Damore] in the coming weeks: hell probably be a star guest on alt-right shows and the rightwing lecture circuit, splashed on the front covers of conservative magazines, no doubt before a lucrative book deal about his martyrdom and what it says about the Liberal Big Brother Anti-White Man Thought Police.

The portrayals of Google as a standard-bearer for anti-discrimination policies, or a radical progressive enclave, can be dizzying, because Google has actually been trying to counter the impressionbased on its own workplace statisticsthat its hiring and promotion policies significantly disadvantage women and minority members.

If Damore files a lawsuit against Google for suppressing his views against equal opportunity measures, it might be heard even while the U.S. Department of Labor continues its investigation of a significant gender wage gap at Google.

Prior to his firing, Damore had already sought recourse by filing a complaint to the National Labor Relations Board, arguing that Google was trying to silence him, according to the New York Times.

Stanford University law professor Richard Thompson Ford, who specializes in anti-discrimination law and workplace rights, says Damore has a slight, though not non-existent, chance at winning a lawsuit against Google over his firing.

The First Amendment claim is not strong, Ford says.

Many people think the amendment gives them the right to free speech on the job, but thats a misreading Next Page

Bernadette Tansey is Xconomy's San Francisco Editor. You can reach her at btansey@xconomy.com.

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The Fired Google Engineer, the First Amendment, and the Alt-Right - Xconomy