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Jack Greiner 7:17 p.m. ET Feb. 2, 2017

John C. Greiner, attorney for Graydon Head Legal Counsel. He's a commercial litigator with an emphasis on communications and media law. He serves on the firm's Appellate Practice Group.(Photo: Provided)

Firma Helget, an administrative assistant with the Hays, Kansas Police Department, discovered recently that not all speech by a public employee receives First Amendment protection. As a result, the United States Court of Appeals for the Tenth Circuit upheld the dismissal of her wrongful termination suit against the department.

The case arose when Helget provided an affidavit to assist officer Blaine Dryden in his own wrongful termination suit against the department. The department claimed it fired Dryden based on his unprofessional and inappropriate conduct at a court hearing in December 2010. But Dryden alleged that was a pretext, to cover up the fact that he was fired for his union activities. Part of Drydens proof that that the department had decided to terminate him before the court incident was the fact that the department had decided, before the December court incident, not to issue him a ballistic vest.

At Drydens request, Helget provided an affidavit asserting that she had been instructed to remove Dryden from the ballistic vest ordering list in early December 2010. In May, 2011, the department fired Helget stating four reasons, one of which was her disclosing confidential information in the Dryden litigation.

In her wrongful termination suit, Helget contended the firing violated her First Amendment right of free speech. The trial court, and ultimately the appellate court, disagreed.

Public employees, unlike private sector employees, are protected by the First Amendment. The reason is simple. The First Amendment prohibits certain conduct by the government, not private conduct.

But courts recognize in the employment setting, the issues are a little different. It would be a pretty tough place to work if a public employee could march into the managers office every morning and tell the manager exactly how inept the manager was. An absolute view of the First Amendment, however, would not allow that employee to be disciplined.

Courts have accordingly, adopted a balancing approach. Public employees may speak out on matters of public concern, but a public employer may protect the efficient operation of the workplace. The daily tongue lashing would no doubt disturb the operation of the office, so in that case, the employee could be disciplined.

Helgets case was not as clear cut. She provided an affidavit in a case that alleged a police officer lost his job for engaging in protected conduct union activity. The affidavit did not immediately affect the operation of the office, in the same manner as the hypothetical.

But in the courts view, Helgets speech was related more to an employment dispute than a matter of public concern, and her voluntary disclosure of confidential information caused her superiors to lose confidence in their ability to trust her with information going forward. Based on this finding, the court had little difficulty rejecting her First Amendment claim.

Given our divisive political climate, it is likely employees public and private will be tempted to air their views. That may result in a lot of tests of the First Amendment over the next four years.

Jack Greiner is a lawyer with the Graydon Head law firm in Cincinnati and represents Enquirer Media in First Amendment and media issues.

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Public worker's speech not protected by 1st Amendment - Cincinnati.com

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Come back in the weeks ahead, when this site will looking at three new First Amendment issues that broke out today:

* The Nation reports that a four-page draft of an executive order is circulating among federal employees and advocacy groups. The draft would extend religious exemptions for hiring and providing goods and services to non-religious private companies, state and local governments and others. Religious organizations such as churches, schools and hospitals have used the exemptions over same-sex marriage, premarital sex, abortion, gender identity, contraception and abortion.

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The night before, a speech by right-wing writer and self-described supervillain of the Internet Milo Yiannopoulos was canceled at the University of Californias Berkeley campus after demonstrators set fires, broke windows and threw objects. Yiannopoulos is an editor at Breitbart News. Trump adviser Steve Bannon was a founding board member of the site. A December appearance by Yiannopoulos at Michigan State University led to less-violent protests.

* At the National Prayer Breakfast, Trump promised to totally destroy a 1954 U.S. law that means churches and religious institutions jeopardize their tax-exempt status if they get involved in politics.

This Michigan State journalism class was working on about 20 stories surrounding developments un the First Amendment when these events happened. Bookmark us to follow these and other stories.

This Michigan State journalism project looks at how First Amendment freedoms of religion, speech, press, assembly and petition are exercised and tested during the first 100 days of the Trump administration.

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Follow us on 3 new First Amendment issues - Spartan Newsroom

Five years ago, the Florida Department of Agriculture turned its regulatory power on a small third-generation dairy farm in the Panhandles Calhoun County, population 14,462.

The Ocheesee Creamery, as its known, was caught being a little too honest.

Mary Lou Wesselhoeft, owner, was selling all-natural pasteurized skim milk whole milk with the cream skimmed off and labeling it exactly what it was: skim milk.

But in a strange twist with First Amendment implications, the state said Wesselhoeft was misrepresenting her product. After a decade without complaints or confusion, newly enforced regulations required artificially injected additives something Ocheese Creamery had never done andwasnt about to start doing.

As a result, the department issued an ultimatum: either stop selling skim milk or label it imitation milk.

Wesselhoeft, whose website header includes the Bible verse, The hills shall flow with milk, Joel 3:18, opted to stop selling her locally popular item rather than comply with a condition she believes is dishonest.

But not without a fight.

In March 2016, the U.S. District Court for the Northern District of Florida ruled in favor of the Department of Agriculture.

The First Amendments protection of free speech extends to commercial speech, the court said, adding that while Wesselhoefts label is literally true, the department has the authority to establish a standard of identity.

On Jan. 24, the Institute for Justice, a public interest law firm, argued her case before the U.S. Court of Appeals for the Eleventh Circuit Court in Jacksonville. The firm has represented Wesselhoeft since 2014.

The state has turned the dictionary on its head, managing attorney Justin Pearson told Watchdog.org.

The state admits that Ocheesee Creamery skim milk consists entirely of pure all-natural skim milk. But because it doesnt add any other ingredients, the state has ordered the dairy not call it what it is. That violates the First Amendment, Pearson said.

According to the department, skim milk can only legally bear the name skim milk in Florida if it contains the same amount of vitamin A as whole milk. If it doesnt, vitamin A must be artificially added.

That puts Wesselhoeft in a bind.

Ocheesee Creamerys milk is separated so the cream rises to the top. But because vitamin A is fat soluble, its largely removed when the cream is skimmed.

The thing thats different about our creamery is that its pasteurized, not homogenized, and our milk goes in glass bottles and is all-natural, Wesselhoeft said in a video produced by the Institute for Justice.

Commercial milk is typically homogenized a mechanical process that breaks down fat globules from the cream and suspends them, along with vitamin A, throughout the milk.

The dairys all-natural products are produced from grazing grass-fed cows. Many of its customers frequent the small business precisely because its products dont contain additives.

Many older people enjoy our items because it reminds them of their growing-up days when milk in glass bottles was the norm,the dairys website says.

The three-employee farm also includes a storefront where guests can watch how the family operation bottles its milk.

According to the lawsuit, department regulators routinely tested and approved the farms skim milk prior to October 2012, when the state issued a stop-sale order and demanded that Wesselhoeft refrain from listing any nutrient or health claims on its labels.

But not because its unsafe.

The state doesnt dispute that the creamerys skim milk is safe to drink without the full amount of vitamin A, explained Pearson. The state also agrees that the creamerys skim milk is legal to sell without any additives, he said. It just wont allow them to call it skim milk.

In 2013, Wesselhoeft proposed alternative labels, including Pasteurized Skim Milk: No Vitamin A Added, Pasteurized Skim Milk: No Lost Vitamin A Replaced, and Pasteurized Skim Milk: Most Vitamin A Removed by Skimming Cream from Milk.

The suggestions were denied.

If we would have ignored the Department of Agriculture, they couldve come and pulled our permit and shut us down completely, and we could not have sold any of our products anywhere, Wesselhoeft said.

According to the lawsuit, in addition to canceling permits and issuing fines, selling pasteurized skim milk without complying with Floridas labeling laws could result in incarceration for the Creamerys owners.

The farm has managed to continue operating, but not without losing money. It sells dairy items containing cream, but since the leftover skim milk cannot be sold, itsdiscarded.

Every day we cant sell it, it hurts our livelihood and we lose customers. We cannot continue on. It hurts us in a big way, Wesselhoeft said.

The Agriculture Department refuses to back-off its labeling prohibition despite the lack of public safety concerns. Court documents show the states interest is in establishing a standard of identity and nutritional standards for milk for the purpose of interstate commerce.

Ocheesee Creamery sells its products exclusively within the state of Florida.

Pearson said that amicus briefs were filed by large farm organizations, including the International Dairy Foods Association, on behalf of the state governments position.

Its clear that giant international dairy farmers dont like the idea that small, authentic creameries could offer alternative choices. I dont think thats a coincidence, he told Watchdog.org.

The Eleventh Circuit is expected to decide the case before summer. The lawsuit doesnt seek monetary damages, only the ability to call the product skim milk.

We think the judges understood what we were saying, Pearson said.

For Wesselhoeft, the challenge is a simple matter of right and wrong. We should win this case because we want to tell the truth, she said.Someone has to stand up.

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Small dairy farmer seeks First Amendment protection from state ... - SaintPetersBlog (blog)

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California elected officials are leading a courtroom charge to bulldoze the 1958NAACP v. AlabamaSupreme Court decision that guarantees anonymity for non-profit donors who might otherwise be subjected to death threats and other forms of intimidation.

The California attorney generals (CAG) requirement that nonprofit groups disclose donor identities in order to solicit donations in the state threatens more than First Amendment rights. Nonprofit groups filed 10 amicus briefs Friday before the U.S. Court of Appeals for the Ninth Circuit in Americans for Prosperity Foundation (AFPF) v.California Attorney General Xavier Becerra.

The California attorney general is callously neglectful of an atmosphere that is now crazed and even violent towards people who dissent from progressive doctrines, who speak out against radical terrorism, and others who may simply be in the wrong place at the wrong time, the amicus brief from American Target Advertising reads. The times are dangerous for dissent and association by conservatives.

The nonprofit community has long viewed NAACP v. Alabama which decided state officials infringed on First Amendment freedom of association rights by demanding NAACP donor identities as a key safeguard. (RELATED: F**k Donald Trump, F**K White People!: 4 People In Custody After Man Kidnapped, Tortured On Facebook Live)

Becerras predecessor, Kamala Harris, now one of Californias U.S. senators, launched the current push by ordering non-profit organizations to hand over IRS 990 schedule B forms with donor names and addresses as a requirement for soliciting donations in the state.AFPF filedits lawsuit in December 2014. (RELATED: California AG Threatens Non-Profit Donors First Amendment Rights)

The U.S. District Court for the District of Central California court sided with AFPF against the CAG, but the relief only applied to AFPF and the state appealed the case to the Ninth Circuit.

New Yorks Attorney General Eric Schneiderman also prohibited non-profit organizations from soliciting donations in that state unless they disclosed donor identities.

Nonprofit groups already have to give the IRS names of donors of more than $5,000, but the information is redacted before state officials receive it.

The heart of the issue is that Democrats dont respect the rights of conservative individuals and groups, said Mark Fitzgibbons, president of corporate and legal affairs for American Target, and author of that organizations brief.

If they have the names of donors to conservative causes and donors to liberal causes, which is none of their business, they know whos for them and whos against them, Fitzgibbons told The Daily Caller News Foundation.

The NAACP Legal Defense Fund (LDF) recognized that threats to freedom of association are dangerous to all nonprofit organizations and risk individuals safety.

In an increasingly polarized country, where threats and harassment over the Internet and social media have become commonplace, speaking out on contentious issues creates a very real risk of harassment and intimidation by private citizens and by the government itself, the NAACP LDF wrote.

Furthermore, numerous contemporary issues ranging from the Black Lives Matter movement, to gay marriage, to immigration arouse significant passion by people with many divergent beliefs. Thus, now, as much as any time in our nations history, it is necessary for individuals to be able to express and promote their viewpoints through associational affiliations without exposing themselves to a legal, personal or political firestorm.

The Alliance Defending Freedom, the Free Speech Defense Fund, the Pacific Research Institute, Cato Institute, Competitive Enterprise Institute, Proposition 8 Legal Defense Fund, Electronic Privacy Information Center, Pacific Legal Foundation, Philanthropy Roundtable, and Arizona, Alabama, Louisiana, Michigan, Nevada, Texas and Wisconsin also submitted briefs.

But AFPFs case has arguments beyond First Amendment grounds, the American Target brief argues.

The liberal push for donor information violates post-Watergate reforms to the tax code, which prohibit unauthorized access, inspection and disclosure of any confidential tax return information, and establishes penalties for violators.

Unless disclosure of tax return information is expressly authorized under the Internal Revenue Code, it is unlawful, the American Target brief said. The post-Watergate reforms therefore focus as much (if not more) on unauthorized disclosure to, and use by, federal and state officials as the public.

Harris had no right to demand identities in schedule B forms, as those requests must only go through the IRS on a case-by-case basis, and she could face penalties of up to $5,000 or five years behind bars, per Title 26 of the U.S. tax code, according to the brief.

Those reforms include civil and criminal penalties for state attorneys general and their staff, the American Target brief said. Many conservatives hope Congress and the incoming U.S. attorney general will look into this because the Obama administration seemed to give Democrats a pass on breaking laws when conservatives were being targeted for abuse.

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Liberal Push For Disclosure Is Dangerous | The Daily Caller - Daily Caller

Milo Yiannopoulos, the polarizing Breitbart News editor, speaks at California Polytechnic State University as part of his "The Dangerous Faggot Tour" of college campuses, Tuesday, Jan. 31, 2017, in San Luis Obispo, Calif. His speech was met with dozens of angry protesters outside a campus theater. (David Middlecamp/The Tribune (of San Luis Obispo) via AP)

BERKELEY, Calif. (AP) Fans and foes agree that Milo Yiannopoulos specializes in controversy. The polarizing editor from Breitbart News is a self-proclaimed internet troll who has been criticized as racist, misogynist and white supremacist.

His scheduled visit Wednesday to the University of California at Berkeley has raised an issue facing campuses across America at the dawn of the Trump presidency: What is the line between free speech and hate speech?

The visit is sponsored by the campus Republican club. The university has stressed it did not invite Yiannopoulos, a right-wing provocateur who is gay and calls his event The Dangerous Faggot Tour.

The potential for physical danger in reaction to Yiannopoulos came into the spotlight this month after a man was shot and wounded at a protest outside his Jan. 21 University of Washington talk.

Rowdy protests at UC Davis Jan. 13 prompted campus Republicans to cancel his appearance at the last minute.

On Tuesday night at California Polytechnic State University in San Luis Obispo, his speech was met with dozens of angry protesters outside a campus theater, but they were outnumbered by police who kept them far from the nearly 500 attendees and the event went on as planned.

His last stop was supposed to be UCLA on Feb. 2, but that invitation was rescinded, making Berkeley the grand finale of his cross-country campus tour.

Professors have joined hundreds of students calling for the events cancellation. But university officials say it will be allowed in the name of free speech as will protests that Berkeley Chancellor Nicholas Dirks expects could be substantial amid tight security.

In our view, Mr. Yiannopoulos is a troll and provocateur who uses odious behavior in part to entertain, but also to deflect any serious engagement with ideas, Dirks wrote last week to Berkeleys staff and 37,500 students. He has been widely and rightly condemned for engaging in hate speech.

But as a public university, Berkeleys administrators are legally bound by the First Amendment to protect free speech, meaning even offensive and hate speech cannot be banned or censored, Dirks said.

We are defending the right to free expression at an historic moment for our nation, when this right is once again of paramount importance, Dirks said.

His letter did not name President Donald Trump, whom Yiannopoulos supports, but highlighted concerns at Berkeley and elsewhere since his election.

The Berkeley Republican Club says it has no plans to cancel the event because that would send a message that intimidation and violence can win.

We dont support everything hes said or done, said Pieter Sittler, 19, a sophomore who is the clubs vice president. But we think its important to have a complete political discourse. Not just stay in an echo chamber and silence what you disagree with.

The events 500 seats sold out about 48 hours after the event was announced last fall, Sittler said.

Yiannopoulos gives a voice to repressed conservative thought on American college campuses, Sittler said, adding that he uses levity and humor that should not be taken literally.

Administrators say the demands to stifle Yiannopoulos show that modern sensitivities are changing the debate about free speech on campus. What used to be a campaign to allow all voices risks becoming more restrictive.

The number of attempts to keep speakers off college campuses because of their politics doubled last year, according to a report issued late last year by the Foundation for Individual Rights in Education. It logged a record 42 incidents of disinvitations, with 25 percent aimed at Yiannopoulos.

The increasing unwillingness to allow anyone on campus to hear ideas with which one disagrees poses a grave risk to students intellectual development, Ari Cohn, director of the foundations Individual Rights Defense Program, said in a statement.

Administrators have received hundreds of letters and emails calling for the events cancellation.

Theres a No Milo at Berkeley Facebook page with more than 3,500 people signed on, calling for a mass counter protest to shut down the event.

Nearly 100 professors signed a letter to the chancellor urging him to cancel the event. It cited some of Yiannopoulos earlier comments.

At the University of Delaware, Yiannopoulos referred to transgender people as mentally ill and encouraged his audience to mock them.

He has called Black Lives Matter a form of black supremacism. Twitter banned him in July, as it cracked down on racist abuse targeting Ghostbusters actress Leslie Jones.

At Western Carolina University he called feminism, a mean, vindictive, spiteful, nasty, man-hating philosophy.

The university should not provide a platform for such harassment, the letter from professors said. We support robust debate, but we cannot abide by harassment, slander, defamation and hate speech.

Yiannopoulos rejects accusations he is racist or white supremacist, saying his boyfriend is black and his humor is taken too literally in todays politically correct culture.

A group of veterans from Berkeleys 1960s Free Speech Movement praised administrators for allowing the event.

Even the worst kind of bigot, including Yiannopoulos, must be allowed to speak on campus, they wrote in In an op-ed published by Berkeleys The Daily Californian.

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Berkeley chancellor defends Milo Yiannopoulos event citing First Amendment - LGBTQ Nation