First Amendment at Risk with Republican Obscenity Bills

The SCREEN Act is a good step in the direction of having the FCC regulate websites. As a parent, we need age verification technology to ensure that children cannot access inappropriate content. That said, restricting pornography from the underaged is not enough. Hopefully, amendments to the Act will go further and restrict other topics like alcohol, drugs, guns, and as every parent will tell you, in-game purchases. If that seems like an overreach based on restricting ambiguous terms, which will give the government way too much unchecked power and not respect individual liberty, then you agree with the Supreme Court, which has historically found that all prior similar acts by Congress were not undertaken in the least restrictive means possible to protect a compelling government interest. Think about it this way, is a minor who is 7 years old the same as one who is 17 and should they have the same restrictions? Also, what does pornography mean anyway? Does it include anatomy pictures or health lessons? In short, this law is tone deaf to reality.

Speaking about what pornography means, Senator Mike Lee also wants to define it in his Interstate Obscenity Definition Act. While this is a great concept because pornography is now nationally available, rather than locally available, it includes terrible execution by the Senator. As any Avenue Q fan can tell you, the internet is for porn. Well, not for Mike Lee if he has his way. The Senator wants almost all pornography to be swept under the rubric of obscenity and therefore, not subject to First Amendment Protections. Whatever happened to fighting for our Constitution? Under our Constitution, as opined by former Supreme Court Chief Justice Warren Burger, one can only define obscenity by first applying the contemporary community standards of a work, as a whole. Senator Lee appears to believe himself smarter than the learned Justice and his Bill to create a national pornography definition law changes the line between obscenity and protected speech by ignoring the time period that the work is evaluated, a review of it in its entirety, and, most importantly, the use of community standards. Hopefully, the Democratic Senate blocks this Bill from going anywhere fast as restricting speech is always a slippery slope.

New Same Sex / Race Marriage Law Gives Right to Bring Lawsuits for Victims

The Respect for Marriage Act was just signed into law on December 13, 2022. 

The law provides for marriage rights regardless of sex, race, ethnicity, or national origin.

We know that from the news, but what we probably missed is that the law also provides for a private right of action (you can sue) if you are "[a]ny person who is harmed by a violation."

However, in this lawsuit you can only recover declaratory and injunctive relief.

While that's interesting to most, Sister Wives are going to be said to learn that this new law provides "No Federal recognition of polygamous marriages." Sorry Sister Wives. 

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No Penalty for Claiming Insurance on a Hate Crime under New Law

On December 12, 2022, Governor Hochul enacted A8869B, which protects hate crime victims from insurance rate spikes / cancellations by amending Insurance Law 3114. 

Now, policies must be issued, renewed without increase in premium, and can't be cancelled solely on the basis of claim(s) resulting from hate crimes.  

This law is effective immediately and applies to claims that occurred in the preceding 60 months. 

Nursing Employees' Right to Express Breast Milk Remains UNPAID

On December 9, 2022, Governor Hochul signed S4844B, which amends Labor Law 206-c effective June 7, 2023, and thereby modifies the rights of nursing employees to express breast milk at work.

Note that the amendment changes the term "mothers" into an "employees" right to "express breast milk." Cue Anti-Woke Mob. 

Regardless, everyone should note that the right to express breast milk at work remains an unpaid right. 

Setting that aside, the big change in the law is that now employers have an obligation to provide a specific location with specific features for employees to express breast milk. The law states that employees "shall designate a room or other location," that is "in close proximity to the work area," "well lit," "shielded from view," and "free from intrusion from other persons in the workplace or the public." In addition, the room needs to include "a chair, working surface, nearby access to clean running water and, if the workplace is supplied with electricity, an electrical outlet." Moreover, the room can't be a "restroom or toilet stall." Finally, employees should have access to refrigeration. 

This is a big change from the prior law where employer were only required to "make reasonable efforts to provide a room" that was close "to the work area." 

This change is a huge lift for many employers. In that vein, the law does have an undue hardship exception where employers that would experience "significant difficulty or expense" can avoid providing the room to the exact specifications required under the law. Yet, they still must do a lot towards helping "employees" in expressing breast milk.  

Regardless, employers all must notice their staff "as soon as practicable" to designate the room for "breast milk" or their undue hardship alternative. Further, the Department of Labor is going to develop a written policy of rights that is going to be required to be provided to employees upon hire, annually, and upon an employee's return to work following the birth of a child.

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Major Sexual Assault / Sexual Harassment Law Signed by President Biden

On December 7, 2022, President Biden signed the Speak Out Act into law. 

Now, nondisclosure and nondisparagement contract clauses relating to sexual assault disputes and sexual harassment disputes are unenforceable if they were agreed to before the dispute arises. 

According to the Act, a nondisclosure clause means "a provision in a contract or agreement that requires the parties to the contract or agreement not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement" whereas a nondisparagement clause means "a provision in a contract or agreement that requires 1 or more parties to the contract or agreement not to make a negative statement about another party that relates to the contract, agreement, claim, or case."

This is a major law - make not mistake. 

While states like New York go even further than this protection for victims, at CPLR 5003-b and General Obligations Law 5-336, and that increased protection remains enforceable, most states don't protect victims from being preemptively silenced. 

With this increased nationwide protection, hopefully we can solve the horrific statistic that an "estimated 87 to 94 percent of those who experience sexual harassment never file a formal complaint." Victims need to be empowered to stand-up for their rights, not the other way around.

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