“Might as Well Carry a Purse with That Mask, Joe”: COVID-19, Toxic Masculinity, and the Sad State of National Politics

JOANNA L. GROSSMAN, LINDA C. MCCLAIN

SMU Dedman School of Law professor Joanna L. Grossman and Boston University law professor Linda C. McClain comment on COVID-19, toxic masculinity, and the state of national politics today. Grossman and McClain contrast President Trump’s reckless bravado that endangers the lives of Americans with the empathy of Democratic presidential nominee former Vice President Joe Biden’s in asking people to be patriotic by doing their part by wearing masks to protect other Americans.

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Should Department of Justice Lawyers Defy William Barr?

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on an open letter addressed to the 100,000 professionals working in the U.S. Department of Justice and published by Lawyers Defending Democracy. In the letter, more than 600 members of the bar from across the United States call on their DOJ colleagues to refrain from “participating in political misuse of the DOJ in the elction period ahead.” Sarat argues that the letter rightly recognizes that Attorney General Barr’s blatant partisanship endangers the integrity of the DOJ itself and its role in preserving the rule of law.

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Bennett v. Metropolitan Government of Nashville and Davidson County

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-5818

Opinion Date: October 6, 2020

Judge: Martha Craig Daughtrey

Areas of Law: Civil Rights, Communications Law, Constitutional Law, Labor & Employment Law

Bennett worked at the Metro Government Emergency Communications Center (ECC) for 16 years. On November 9, 2016, Bennett, a white woman, responded to someone else's comment on her public-facing Facebook profile, using some of the commenter’s words: “Thank god we have more America loving rednecks. Red spread across all America. Even niggaz and latinos voted for trump too!” Bennett identified herself as an employee of Metro, the police department, and ECC in her Facebook profile. A constituent reposted part of Bennett’s statement and commented: If your skin is too dark your call may have just been placed on the back burner. Several employees and an outsider complained to ECC leadership. Bennett failed to show remorse. ECC officials determined that Bennett violated three Civil Service Rules and, after paid administrative leave and a due process hearing, fired her. Bennett sued Metro for First Amendment retaliation. The Sixth Circuit reversed a judgment in favor of Bennett, finding that the district court improperly analyzed the “Pickering” factors. The record indicated that the harmony of the office was disrupted; the court erred in discounting the importance of harmonious relationships at ECC. It is possible that inaction on ECC’s part could have been seen as an endorsement of the speech and impaired future discipline of similar derogatory statements. It is also possible that a damaged relationship with her colleagues could affect the quality and quantity of Bennett's work. Bennett’s comment detracted from ECC's mission.

Rudd v. City of Norton Shores

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-1226

Opinion Date: October 6, 2020

Judge: Murphy

Areas of Law: Civil Rights, Communications Law, Constitutional Law

Rudd alleged that his ex-wife abducted their sons with assistance from her attorney (Meyers), during a child custody dispute. Rudd called the police but alleges that they refused to help him because Meyers is married to the city manager. Rudd filed an official complaint with the police department. Rudd claims that officials subsequently helped Meyers obtain an ex parte personal protection order as “leverage” in the custody case, authorized officers to illegally disclose Rudd’s information on the Law Enforcement Information Network, and falsified reports. Rudd prevailed in the custody case. Norton Shores later hired a new police chief, Gale. Rudd thought that Gale might “objectively” address the way that the police had handled his sons’ abduction and filed an official complaint. Gale told Rudd that he would investigate and have the Michigan State Police investigate. Instead, Rudd alleges, Gale gave his complaint to Meyers, the city manager, and the former police chief; never internally investigated; and set up a sham outside investigation. Rudd claims that his complaint triggered retaliatory actions, including an effort to get him jailed. Rudd brought a pro se suit against everyone involved. The Sixth Circuit reversed the dismissal of his suit. The evidence may confirm Rudd’s allegations or it may disprove them but a court must accept his allegations as true at the pleading stage.

Gruber v. Yelp Inc.

Court: California Courts of Appeal

Docket: A155063(First Appellate District)

Opinion Date: October 7, 2020

Judge: Jackson

Areas of Law: Business Law, Communications Law, Consumer Law

Yelp publishes crowdsourced business reviews and allows businesses to advertise on its Website and mobile app. Yelp employs over 2,000 sales representatives to solicit advertising sales. Gruber, a solo attorney practitioner, was contacted by phone several times by Yelp sales representatives. During these calls, in which the sales representatives’ voices were recorded, Gruber discussed confidential and financial information regarding his law firm. When conversing with one representative, who happened to be his friend, Gruber sometimes joked, discussed private topics, and used profanity. Gruber did not recall that any Yelp sales representative notified him that the conversations were being recorded. Gruber sued under the California Invasion of Privacy Act (CIPA) Pen. Code 630, alleging unlawful recording and intercepting of communications; unlawful recording of and eavesdropping upon confidential communications; and unlawful wiretapping. The trial court granted Yelp summary judgment. The court of appeal reversed. While Gruber was not recorded during any calls (only Yelp’s representatives were recorded), CIPA is violated if a defendant records any portion of a conversation between two or more individuals. When the Yelp salespeople spoke during the one-sided recordings of their conversations with Gruber, the recordings revealed firsthand and in real-time their understanding of or reaction to Gruber’s words. Yelp failed to meet its burden of production regarding whether its use of VoIP technology precludes CIPA's application.