Trump’s Twitter: Social Media Ruling Leads to Challenges to President’s Practices

As we’ve already discussed, a recent court ruling determined that when a politician blocks somebody from a social media account used for official business-even if made through private channels-it can be a violation of First Amendment rights. This is potentially bad news for President Trump as he is possessed of both an irresistible urge to tweet things normally left for official presidential announcements and a simultaneous near compulsion to retaliate to all criticism. So, it should come as no surprise that he has banned a number of people from the personal twitter account that he has used for everything from outlining political positions to-in the case of the recent ban on transgender people in the military-making proclamations of presidential actions not even the Pentagon is privy to.

Trump’s penchant for taking off-the-cuff political positions and (as seen in his recent long delay in condemning Neo-Nazi activity in Charlotte, instead choosing to blame “both sides”) often less than politically sensitive opinions have caused headaches for his own party, cabinet, and Congress in general. This has led to a number of-usually dead on arrival-laws to limit his ability to tweet. Just recently, the Communications Over Various Feeds Electronically for Engagement (COVFEFE) Act was introduced. The act would have classified tweets as presidential records. This would have prevented Trump from deleting his tweets under the Presidential Records Act.

This was obviously in response to the President’s well publicized “covfefe” tweet where he sent out a tweet which was partially gibberish-although former White House Press Secretary Sean Spicer told the media that Trump used the word intentionally and it had meaning known to “a small group of people.”

While the “covfefe” tweet led to the proposed act. The District Court’s ruling has led to a class action lawsuit brought against Trump for blocking political dissidents-and unlike the COVFEFE Act this lawsuit has a real chance of success.

The Lawsuit Against Trump

The Knight First Amendment Institute has brought a lawsuit alleging that that Trump has violated the First Amendment rights of seven U.S. citizens by blocking them from his Twitter account. Each of these people responded to the President’s tweets by criticizing Trump’s politics and positions and promptly found themselves blocked for it either by the man himself or by the White House Staffers who moderate his account.

There are some strong arguments here. However, as we mentioned in the first section of this article, the case is not a one-to-one match to the recent case ruling against Chairwoman Randall. Trump has certainly blocked people based on their political viewpoint. However, that is only one half of the considerations. The case will hinge on whether President Trump’s Twitter account is a public forum. For this twitterreason, the elements in the Chairwoman’s case can be useful in analyzing the strength of the case against Trump.

The District Court ruling looked at: 1) whether the account arose out of public or personal circumstances; 2) whether the account includes actions facilitated by the authority of the politician; 3) whether the account was used as a tool of governance; 4) used government resources to operate and 5) the trappings of office associated with the account.

Here, Trump did not make his account for a government purpose like the Chairwoman did. As a celebrity figure prior to his election, Trump has had the account for years and certainly didn’t make it with the purpose of spreading his politics-although he has never made them a secret on his account. However, this is just one element of the considerations, from here the case gets much worse for President Trump.

The Chairwoman got in trouble for making announcements related to government action on her Facebook page. Trump has made announcements such as the transgender military ban which are the first announcement of new political positions of the Executive Branch of the United States of America. He’s announced several changes in his cabinet staff and executive orders via the account. Sean Spicer has outright stated that the account should be “considered official statements by the President of the United States.” Other Trump administration advisors have cited his tweets as official statements. He holds back nearly no issue of governance on the account–often to the point of being accused of risking state secrets. His account has been cited in court cases as his official position on issues such as the Travel Ban executive order. To say that Trump has taken actions facilitated by his authority and as a tool of governance is an understatement.

President Trump also has certainly used government resources in operating his Twitter account. While he still has the official @POTUS and @WhiteHouse accounts, Trump generally prefers his personal account and has White House staffers who moderate his account with the ability to block and unblock Twitter users and commenters. He also has aides who occasionally draft and post tweets for him.

Unlike Chairwoman Randall’s Facebook page, the immediate imagery and branding on the page does not include official presidential imagery. However, the account is registered to the “45th President of the United States” and posts include an enormous amount of POTUS imagery.

As you can see, even if each element doesn’t fit the bill, in a couple of ways Trump’s Twitter account far outdoes Chairwoman Randall’s case when it comes to creating a public forum. We’ll have to wait and see how the case progresses. However, there’s a real chance that this ends up coming down against Trump.

What Would a Ruling Against Trump Mean

If the court comes down against Trump, it will mean that he has violated the First Amendment by engaging in viewpoint discrimination. However, on a more practical level the impact will be more limited. Trump will be forced to unblock the plaintiffs and will no longer be able to block people engaging in political discourse on his Twitter. This won’t include all criticism. Posts not related to politics can still be removed. However, blocking people from speaking altogether from the forum would likely still be unconstitutional.

To be frank, it seems likely that Trump has created a public forum by using his Twitter account the way he has. The chances are this case won’t go his way. However, no case is guaranteed-especially when brought against the President. We’ll have to wait and see where this one goes and if Trump will be forced to listen to his critics.

Court Rules that Government Officials Blocking Users on Social Media Can Violate First Amendment

Social media is everywhere. While sites like Facebook have been around for a while, the sheer number of social media outlets, the number of people on them, and the number of things they are used for has reached unprecedented levels. However, while having a tool that gives so much convenient access to what’s going on it the lives of our loved ones and favorite celebrity personalities can be incredible, that access can be a double-edged sword. There are endless privacy considerations inherent in posting every detail of your life on the internet. For that reason, most social media outlets provide options to limit who can see what you post-from changing your settings to outright blocking people from seeing or posting on your content. This is a fantastic feature, and crucially important to protect from issues like cyber-stalking. However, what about when a politician uses this feature to censor their critics?

The power social media is the power of access, and that screams opportunity to businesses and politicians alike. The ability to reach such an enormous number of people has made it incredibly common for businesses, political parties, charities, and-of course-individual politicians to have created social media pages separate from their personal pages. Obviously, President Trump is well known for his proclivity for treating his personal Twitter as an official outlet for off-the-cuff presidential proclamations–often much to the chagrin of his own political party, cabinet, and even the pentagon. Just recently, Trump’s ban on transgender people in the military–announced via his twitter–caught even the pentagon itself by surprise as they were unaware of what he was announcing until he posted the second half of his tweet. Pentagon officials have even stated that they were concerned he may have been declaring war on North Korea via his Twitter account.

Given how crucial social media can be to politicians now, perhaps it’s no surprise that a court has finally made a ruling limiting how a politician may behave through social media. The ruling, limiting who and when politicians may block people from social media, did not-however-deal with our tweet-happy President. However, it has inspired several lawsuits against him in its wake.

The ruling itself has some serious implications. However, the lawsuits against President Trump over his Twitter behavior have their own considerations. For that reason, we’re going to look at the situation in a two-part series of articles. First, we’re going to look at the recent ruling and what it means. Then we’re going to look at the lawsuits against Trump and what the ruling means for their chances in a separate article.

social mediaThe Details of the Case

The case itself dealt with a Louden County Board of Supervisors Chairwoman-Phyllis Randall-deleting posts from and blocking one Brian Davison from her official Chairwoman Facebook page after he criticized her and her colleagues’ political behavior.

After accusing Louden County School Board officials of corruption at a townhall meeting hosted by Chairwoman Randall-and subsequently being shut down by Randall-Davison took to her official Facebook page to once again air his grievances. In response, the Chairwoman removed the post and blocked him for about 24 hours.

After looking at the facts, District Court Judge James Cacheris determined that the Chairwoman had violated Mr. Davison’s First Amendment Rights. The issue here was that she was blocking Mr. Davison from reading government information otherwise accessible to the public. This was made especially bad because she was blocking him over speech criticizing her politics.

Blocking on Facebook Can Violate The First Amendment

You might look at these facts and say to yourself, “is a 24-hour ban really that much of an issue?” Obviously, the actual ban was moderately trivial. However, what’s important-and what has larger implications in the ruling-is that the act itself of a politician banning even temporarily from social media which acts as an official forum for that politician can violate the first amendment.

This isn’t to say that all speech on an official forum is protected. Davison himself had previously sued over a government prosecutor deleting comments from an official webpage. Here, the same judge shut him down because his comments were off topic. The issue was that, in the Chairwoman’s case, she deleted comments expressing a viewpoint criticizing her politics–something known as viewpoint based discrimination.

When the government practices viewpoint based discrimination (favoring one side over another) in a public forum this violates the First Amendment–this is especially true of political speech. So the remaining issue is, when is social media a public forum?

A social media account, or really any speech, isn’t automatically a public forum because a government agent makes it. Government agents can and do have totally private communications-a private Facebook account or personal email for instance. The question is, does that social media account act under color of state law or undertake state action? Does the account have a close enough connection with the State to be fairly treated as making actions of the State itself?

The answer to this question is, unhelpfully, it depends on the totality of the circumstances. However, several things can specifically point towards a politician opening a public forum.

The ruling itself specifically looked at: 1) whether the account arose out of public or personal circumstances; 2) whether the account includes actions facilitated by the authority of the politician; 3) whether the account was used as a tool of governance; 4) used government resources to operate and 5) the trappings of office associated with the account.

Here, the Chairwoman made the account right after she was elected and included her official title in the title of the page and immediately invited constituents to contact her through it with official business. The categorization of the page on Facebook is “government official.” It links to her official website. Almost all the posts relate to politics and are addressed to the Chairwoman’s constituents. It lists her official contact information as the contact information on the site. She also had a Chief of Staff set up the page and maintain it for her.

The Chairwoman’s website wasn’t all government. It also included personal thoughts, shopping trip pictures, and more personal things. The Chairwoman even intentionally created it separate from her official page with the stated purpose of avoiding government oversight. However, looking at all the ways the page was used in an official government capacity and to promote her political career, it’s easy to see why the court ruled the way it did.

What This Ruling Means

The District Court has made it clear that even social media pages made separate from official government pages can create a protected forum for First Amendment speech. This is especially true of political speech and even more true when that speech criticizes the politics of the politician in question.

When it comes to politicians cool in the face of criticism, President Trump is not the man that comes to mind. Thus, it should come as no surprise that he and his team have banned more than a few political critics from his personal twitter account (@realDonaldTrump). Donald Trump’s situation does not map one-to-one to Chairwoman Randall’s. However, there are enough similarities that several lawsuits around the issue have cropped up in the last few weeks. Stay tuned, in the next couple days we’ll be talking about just how close these cases track and whether Trump may be forced to change his social media ways.

Martin Shkreli Convicted of Fraud

Martin Shkreli is, quite arguably, one of the most hated men in the United States of America. After drawing the ire of the nation a few years back with his choice to increase the price of a critical AIDS drug by around 5770%, followed by a completely remorseless defense of his actions, he has continued to diminish himself in the eyes of the public with a series of–presumably affluenza influenced–publicity stunts flaunting his wealth and lack of sympathy or interest in others. However, it is not his well publicized price jacking that landed him in the courts, it was criminal securities fraud.

The Federal Government had accused Mr. Shkreli of eight different counts of fraud and conspiracy to commit fraud. One charge each of fraud for his handling of two of his hedge funds-MSMB Capital and MSMB Healthcare. These charges essentially charged Mr. Shkreli with running a Ponzi scheme-cheating investors by paying older investors with money from newer ones. There were also charges of conspiracy to commit wire fraud and charges of conspiracy to commit securities. Finally, Mr. Shkreli faced charges for conspiracy to commit wire fraud by using funds from the MSMB hedge funds to defraud a pharma company called Retrophin of which he was CEO–using money from Retrophin to pay back MSMB investors as well as to cover his personal debts.

Martin ShkreliMost of the charges can be boiled down to either Ponzi scheme style investment practices or lying to people to get them to invest in his funds-often in the form of formulating false back stories for himself to match the lives of would-be investors and substantially exaggerating his financial experience and education. He also made a practice of substantially overpromising returns, downplaying risks, and fabricating the financial state of his businesses. For example, prosecutors showed evidence that Shkreli told investors his companies had $80M in the bank when he only had around $11,000. What’s more, when investors asked for their money back, Shkreli would put them off for months while acquire the money to return for them.

Of the charge facing him, Mr. Shkreli was convicted of conspiracy to commit fraud on Retrophin and a count of securities fraud each for both MSMB hedge funds.

Understanding the Charges

Securities fraud is an incredibly broad charge, it can cover innumerable evils. To try to fully explain securities fraud would be to attempt to fit books worth of information into a short article. However, what we can do is look at exactly how fraud is established at a federal level and the additional elements inherent to securities and wire fraud–the charges leveled against Shkreli.

Fraud itself is pretty simple in its elements. However, those elements themselves can be complicated. In order to show fraud you need to show that somebody:

  1. Made a material false statement;
  2. Intended to deceive;
  3. The victim actually and justifiably depended on the statement; and
  4. Depending on the false statement damaged the victim.

A material statement is one that actual impacts the victims decision in taking the action that damages them. So basically, if somebody lies about what car they drive it’s unlikely to change your mind on receiving heart surgery so they wouldn’t be guilty of fraud. Also, if somebody lies and the victim doesn’t believe them, there would be no fraud charges. Reliance on a fraudulent statement needs to be justified, which means that if a reasonable person would never believe or rely on a statement there is no case for fraud. Fraud also does not require an outright lie, there are circumstances where somebody can commit fraud through an intentional complete omission or concealment of a fact or by providing an incomplete truth.

Wire fraud and securities fraud are characterized under the law with the basic fraud elements but with one additional element each. For wire fraud, the fraud must be committed by a mail or wire communication. For securities fraud, the fraud must be in connection with the purchase or sale of securities. This includes Ponzi schemes, lying to investors, insider trading, front running, cooking the books and many more types of fraud–basically anything that seeks to deceive investors in violation of securities law and SEC guidelines or in relation to the sale of stocks and commodities.

You’ve also no doubt noticed that Shkreli is, in addition to his charges, also charged with conspiracy to commit basically all those charges. Conspiracy is another incredibly complicated area of criminal law. However, it can provide an additional charge beyond just the charge for the crime itself. To avoid getting to deep into another topic that could be a series of articles unto itself, conspiracy can be simplified as a situation where two or more people were in agreement to commit a crime. This isn’t enough on its own in most cases. There needs to be at least some action taken towards accomplishing the planned crime. In Shkreli’s case, this relied on collaboration between him and one of his former attorneys in committing his acts of fraud.

Shkreli’s Future

Leading up to the trial, Shkreli was not particular concerned about the case. The day he was indicted he went home and streamed video of himself playing video games. He constantly dismissed the case as ridiculous on social media, describing it as a “witch hunt by self-serving prosecutors” and posting of Facebook-in a post expressing pro-Trump sentiment-the need to “drain the sewer that is the [Department of Justice].”

However, as the verdict against him was read reports describe him as initially visibly shaken. The effects were not long lasting however, he and his lawyer have since described the ruling-dodging five counts-as a victory. Shkreli continued to call the case a witch hunt even after the ruling.

Even with just three of eight counts against him coming back guilty, Shkreli faces as much as 20 years in prison. However, the truth is that it’s very unlikely that he will face the full amount–especially considering his lack of previous criminal history. As of now, Shkreli is out on $5M bail. The three guilty counts also can, and almost certainly will, be appealed.

For now, Shkreli is predictably treating the whole situation as a joke. During the trial, prosecutors characterized Mr. Shkreli as a man who believed himself above the law, his behavior after the ruling tracks with this. Only around an hour after the guilty ruling, he was streaming online telling his followers that any sentence against him would be “close to nil” and predicting a Club Fed situation where he’d play video games and basketball all day for a few months.

There is a fair bit of judicial discretion as to exactly how much time Mr. Shkreli will face and a long way to go before an ultimate end to this case will be reached. However, the weight of being found guilty of fraud-and the repercussions of that decision-seem to have reached Mr. Shkreli not at all. We’ll simply have to wait and see where this case leads and just how hefty the ramifications of Mr. Shkreli’s fraud end up being.

LGBT Rights: Understanding the Department of Justice In-fights with EEOC

Over the last year or so, we’ve talked quite a bit about the strides made in LGBT employment rights taken by the Equal Employment Opportunity Commission (EEOC). We’ve seen enormous steps towards extending protection of the law to those discriminated against based on sexual orientation and gender identity, if not making them a protected class in and of themselves.

Title VII forbids employers from discriminating against employees due to being a member of a protected class such as race, gender, national origin, color or religion.  It also prevents employers from retaliating, through termination or otherwise, against employees who report such discrimination. For years now, the EEOC has embraced the logic that sexual orientation and gender identity fall under the protections of Title VII–including them in the gender class.

Unfortunately, the Department of Justice (DoJ) and Jeff Sessions are determined to spend resources attacking these rights. Just a few days ago, the DoJ filed a “friend of the court brief” (a type of brief where an interested non-party to a lawsuit makes a filing to try and convince a court to rule a specific way) arguing that LGBT persons shouldn’t be. This a step down a path undoing essentially 8 years of work. The timing of the filing, the same day as the transgender ban we just spoke about, just serves to highlight the Trump administration’s stance on LGBT rights. Let’s take a look at the case, the stance of the EEOC, and the DoJ’s arguments against extending rights to the LGBT community.

The Case in Question

The case itself deals with a skydiving instructor by the name of Donald Zarda. Back in 2010, he was working for Altitude Express doing tandem dives with clients. This obviously involves being essentially strapped together. In order to assuage the worries of a woman he was diving with regarding this issue, he mentioned to her that he was gay. Her husband complained about this to the company, leading to their firing Mr. Zarda. After this, Mr. Zarda sued Altitude Express for violations of Title VII.

Mr. Zarda’s claims obviously hinge on sexual orientation being protected from discrimination under Title VII. The DoJ’s court filings argue that this is not the case and cannot be the case without an act of Congress. This specifically targets the current stance of the EEOC, taken during the Obama Administration years.

 LGBTThe EEOC’s Current Position

In July 2015, the EEOC declared as an agency that sexual orientation was a protected class as a form of sex-based discrimination.  Since then, they have been investigating claims of discrimination based on gender identity or sexual orientation. Recently, the EEOC has brought two separate federal lawsuits alleging discrimination against homosexual employees on the basis of their sexual orientation. They have had an unofficial stance favoring treatment of sexual orientation as protected under Title VII since as early as 2013. In cases as early as 2012, the EEOC had held the discrimination based on gender identity is discrimination based on sex and thus in violation of Title VII.

The arguments the EEOC makes to include sexual orientation and gender identity within the confines of sex and gender hinge on elements of Title VII which forbid discrimination based on non-compliance with norms or stereotypes. Essentially, it boils down to discrimination against LGBT persons being necessarily founded in discrimination based on their non-conformance with gender or sex norms in society–identifying with your birth gender and being heterosexual.

The DoJ is attacking this argument, as well as the power of the EEOC to make such a determination in the first place.

The Department of Justice’s Brief

The DoJ’s brief is substantial. They’ve clearly put quite a bit of time and resources into arguing against protecting the LGBT community. However, their arguments can essentially be boiled down to three things: 1) Congress has shown that they don’t want to protect LGBT persons by never amending Title VII to include them as a protected class; 2) discrimination can’t exist under Title VII unless women and men are treated differently; and 3) discrimination against LGBT is not necessarily related to gender.

Their first argument comes up several times in the brief. They assert that Congress’s failure to add sexual orientation when amending Title VII in 1978 and 1991, despite court rulings existing which refused protection on this basis, is proof Congress didn’t intend to protect LGBT persons. They say that Congress knew that LGBT people weren’t protected under the act both times they made their amendments. The DoJ says that this implies that Congress intentionally chose not to include LGBT people in Title VII’s protections.

The DoJ argues that this means that the EEOC doesn’t have the power to treat LGBT people as protected.  This probably is not the case, barring an actual act of Congress it is unlikely that the EEOC has acted beyond the purview of its role as an agency which is specifically to interpret and apply Title VII. However, the DoJ’s argument is the type that carries weight with the courts. In interpreting law, statutory interpretation often draws on the intent of Congress in making a law.  The failure to include LGBT persons is far from a deathblow to the EEOC’s interpretation but it certainly requires them to have stronger arguments backing their current treatment of the law.

Next, the DoJ argues that sex and gender discrimination only exists where men and women are treated differently by an employer. They cite a few (fairly cherrypicked) cases in support of this assertion. However, even the DoJ acknowledges that gender stereotyping creates an established cause of action for Title VII discrimination.  This leaves several holes in the DoJ’s arguments.

Gender stereotyping specifically creates a cause of action where an employee is discriminated against based on their divergence from established gender stereotypes. This has never relied upon treatment different from the opposite gender. If this wasn’t the case, why would gender stereotyping even exist as a cause of action under the law? Treating women differently from men already exists separate to gender stereotyping. If it only applies to treating women who act masculine worse than men who conform to gender stereotypes (or vice versa) then gender stereotyping as a rule becomes irrelevant. What’s more, if gender is considered as separate from biological sex (as is common practice in scientific communities these days), then transgender persons the EEOC argument still holds. A person male identifying female could receive disparate treatment from a male identifying male. In this case, although both have a birth gender of male, the case would involve a person identifying as one gender being treated differently from one identifying the opposite gender.

The DoJ tries to fight this by highlighting that a “plaintiff must show that the employer actually relied on her [or his] gender in making its decision.” This doesn’t have to mean one gender or another, just that an employer relied on the gender of the person discriminated against in stereotyping them.

Finally, the DoJ attacks the EEOC’s argument that discriminating against sexual orientation or gender identity is necessarily linked to the protected classes of sex or gender. They say, as if it encourages removing protections that a homophobic employer would discriminate against a gay or transgender person regardless of their gender. However, this once again ignores the basis of the EEOC’s argument in gender stereotyping. Even if an employer “equally discriminates” against both genders of LGBT persons, they are still necessarily discriminating based on a gender stereotype that people should have sex with the opposite sex and identify with their birth gender

The DoJ also argues that you can discriminate against gay people who completely conform to gender stereotypes other than their sexual orientation. This is held up to counter the EEOC’s argument that sexual orientation discrimination is always gender discrimination. It’s unclear however, as to how this is an argument against the practice altogether. Rather, at most, it is an argument that where there is no divergence from gender stereotypes there is no discrimination. How that would exist when a gay person is necessarily divergent from the gender stereotype of having relationships with the opposite sex is unclear.

Trump Administration is Backpedaling

The DoJ’s arguments for removing protections for LGBT have some serious issues, both from a legal analysis standpoint and an ethical one. However, they are not ridiculous on their face and are certainly capable of persuading a judge to rule in their favor.

The effort and money they’ve put in to allow discrimination against LGBT persons is, above all, an example of the Trump administration’s lack of commitment to protect the LGBT community. Despite proclaiming himself the preferred candidate for LGBT rights during his campaign, President Trump’s actions since taking office have shown him to anything but. This move is coming on the eve of revoking protections for transgender people in the military and in the wake of decisions backing off LGBT rights enforcement.

At this point, the issue is going to be more and more in the hands of state law-a patchwork of protection and utter lack of protection depending on where you live. However, more than anything, the DoJ’s actions reveal how important it is to treat sexual orientation and gender identity as protected classes of their own. This would require an act of Congress, and is thus will not happen soon. However, making these two a protected class would remove all of the DoJ’s arguments against protection. What’s more, they fit the established mold of what we treat as protected classes.

Courts have historically looked at three elements when forming a new protected class: (1) a long history of discrimination, (2) economic disadvantages, and (3) immutable characteristics. While some may argue immutability, despite substantial scientific evidence to contrary, both sexual orientation and gender identity easily check all these boxes. Until we see these two treated as a full protected class, the entire LGBT community will find it’s rights at the whim of each passing administration and that simply cannot stand.

Google Memo Writer Would Likely Lose Lawsuit Against Google

Former Google software engineer James Damore was fired by Google for writing a memo titled “Google’s Ideological Echo Chamber” that critics have labeled as “anti-diversity.” Damore’s memo was originally on a private internal company discussion board, but was quickly shared outside Google.

Google, currently under investigation by the Department of Labor for paying women less than men, has distanced itself from Damore’s memo, which claims that numerous differences between women and men are biological. Google’s new Vice President of Diversity, Integrity and Governance, Danielle Brown, has released a statement that the memo is “not a viewpoint that I or this company endorses, promotes or encourages.”

Damore says he is considering bringing a suit against Google for his recent dismissal, though exactly what claims he thinks will be successful in court is unclear.

GoogleWhat about Free Speech?

It’s a common misconception that free speech protects everyone against termination or discrimination. The First Amendment, and the ban against restricting free speech, is constitutional law. The Constitution only applies to governments: the federal government, the states, and local counties. The Constitution does NOT apply to private corporations. If Mr. Damore was terminated for writing his memo while working for California’s Department of Motorized Vehicles, he would have a strong free speech case against California. However, since Damore’s employer, Google, was a private employer, the First Amendment does not apply to this case.

However, while Google may prevail legally, this is a political, employment, and public relations nightmare that most major corporations don’t want to deal with. Google has built a reputation and social philosophy on diversity. Most conservative platforms and publications this week have already pointed out the hypocrisy: what’s the point in having diversity in race or gender if your team’s thoughts and viewpoints aren’t diverse? Diversity as a value is superficial if the only diversity celebrated is the person’s skin or appearance.

Still, this is a political question that will only affect law if public opinion changes enough.

Is There a Discrimination Suit Here?

Employment law is premised on two ideas: 1. that employers (and employees) may terminate “at will” an employment relationship for any reason other than an illegal reason and 2. One of those illegal reasons is discrimination based on a specific personal trait, such as race or gender. Notably, political ideology is not on the list of protected traits in the Civil Rights Act. This means that while a private company cannot fire a woman for being feminine, as that would be gender discrimination; the company could fire that woman for being feminist if she spends her time in the office talking about women’s rights issues.

Damore could attempt to bring a case against Google under the Civil Rights Act by arguing that Google discriminated against him for being a man or for being white. However, that claim would be incredibly hard to support. Google could just claim that it fired Damore because it didn’t like the memo he wrote. There’s nothing about the memo itself to suggest that the author was 100% a white man. Google does not have a history of discriminating white men and it doesn’t have a hostile work environment towards white men. In fact, given that white men make up the majority of the company, it’s a pretty safe assumption that Google’s problem with Damore is what he wrote rather than his race or gender.

What about California Law?

Although the federal Civil Rights Act doesn’t offer any protection for discrimination based on politics, California employment law does protection against discrimination based on “political activities or affiliations.” Although this phrase is somewhat vague, there is some consensus on what kinds of activities are protected. Employers cannot restrict or retaliate against their employees for what they do outside of the office. Employers cannot terminate or demote employees simply for having opposing political views or affiliations.

Damore potentially has a case based on this claim, as he was fired for expressing his views on gender and for his political views. Damore wrote a reasoned memo on what he thought were problematic political biases and Google responded by firing him. However, Google could argue that he wasn’t fired for his political affiliations or his activities, but for creating a hostile work environment. According to Google, Damore’s views would make the women at their offices uncomfortable. This is a real issue for Google, because promotions are based on peer review; Google cannot trust that Damore will be treated fairly by women or that he will treat women fairly after his memo ended up in the evening news.

Is Damore a Whistleblower?

Another route Damore could try is claiming to be a whistleblower. Affirmative action programs are often viewed as discriminatory against “majority” groups like white men. Since employment law prohibits discrimination based on race or gender, Google’s plans to admit only women into certain programs would be potentially discriminatory. If that is true, then Damore is a whistleblower against such discrimination.

Of course, claiming to be a whistleblower only works if Google is breaking the law and Damore is reporting it. Affirmative action programs have survived this long because courts often do not consider them illegal discrimination. The racism and sexism that employment law protects against is based on animus – hostility towards a certain group. Proponents have often won by arguing that their discrimination is based on helping certain groups rather than putting down other groups. Affirmative action is not about being anti-men, but pro-women. The fact that there are only two genders and that one is automatically disfavored if the other gender is favored doesn’t often enter into the analysis.

A Sign of the Times

Ironically, the Civil Rights Act that an employment attorney might try to invoke is premised on the very principles that Damore was writing against. The Civil Rights Act is premised on the idea of protecting race and gender. Granted, most employment suits are brought to protect specific races and genders, but the overall focus is on a person’s surface traits instead of viewpoint discrimination. At this time, there is simply no legal framework Damore could use to receive compensation for his termination.

This is a real shame though. Damore’s memo was articulate and very persuasive. It had a clear thesis, its premises were supported by examples, and it pinpointed specific problems and offered solutions to the problems it identified. To be sure, Damore himself makes a number of assumptions and has a number of biases in his own memo. Still, Damore makes a number of points that are very interesting and engaging. As a hiring manager, I did notice that men were more likely to ask for and negotiate for a higher salary than women. Whether or not that discrepancy exists because of biological differences is up to debate, but that is the point. Google should have engaged in that debate instead of firing the author of that debate.

Google has failed to live up to its business values and philosophies by terminating Damore. But the damage is not limited to Google’s reputation or bottom line. It is rare today to find thoughtful and intelligent political discussion in the public sphere; last year’s presidential election is an example of exactly how far we, as a nation, have fallen in that regard.

Google had a perfect opportunity to engage in the kind of frank debate that the public desperately needs. Google dropped the ball. Small wonder then, that a brainless sound bite machine like Donald Trump should prevail in today’s political environment, when even Google derides an opportunity for outstanding debate. I hope Damore finds a worthy opponent to continue his discussion. In the meantime, I will mourn for our public discourse.