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Porn & Employee's Rights: 2

Porn & Employee's Rights: 2

December 20, 2003
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" Those employees working for private employers may not be so lucky if their involvement in the adult entertainment field is uncovered and used as a basis for termination. The First Amendment’s guarantee of freedom of speech only prohibits governmental censorship and retaliation, and is not applicable to private employers.  "

Welcome to the world of workplace discrimination and the Marcie Betts case, which was won on First Amendment grounds. Would YOU be as fortunate? The answer might surprise you...

Marcie Betts' Goes to Court
Terminated employees are entitled to a full-blown adversarial hearing on the legality of their termination, under Maryland administrative law. Such a hearing was immediately requested, and in response, on September 22 through 23, 2003, an Administrative Hearing was conducted before Administrative Law Judge D. Harrison Pratt to determine whether involvement in an adult Website constituted legal justification for terminating a public employee.

The Division of Corrections pulled out all the stops in its attempt to justify this termination, even going so far as to hire a surprise expert witness, the former Director of the Virginia Department of Corrections, which generally is not cheap. Although this expert was not disclosed until a few days before the hearing, he was allowed to testify as to all the "parade of horribles" that would occur if Ms. Betts were allowed to function as a Corrections Officer after having appeared nude on an adult Website.

The essence of the Department’s position was that once a female appeared in erotic photography, and the inmate population learned about it, that female was forever transformed into nothing more than a sex object who would thereafter be subject to immediate sexual abuse by the inmate, who could not control themselves upon learning of such information.

Such concerns were dismissed as "speculative" by the Judge, who on November 12, 2003, determined that the termination violated Marcie Betts’ First Amendment rights to freedom of speech, and that those rights outweighed any safety concerns identified by the Division. The Judge also did not overlook the fact that even though these images had been in global circulation for several months before she was fired, no inmate had ever come into possession of a single image of Marcie Betts. She is therefore now entitled to reinstatement with full pay and benefits, along with compensation for attorney’s fees incurred in seeking her job back.

Non-Government Workers Out of Luck?
Those employees working for private employers may not be so lucky if their involvement in the adult entertainment field is uncovered and used as a basis for termination. The First Amendment’s guarantee of freedom of speech only prohibits governmental censorship and retaliation, and is not applicable to private employers.

While other legal theories might be used to challenge a discharge based on involvement in adult media in the private sector, such as breach of contract, gender discrimination or retaliatory discharge, these claims are much more difficult to pursue, particularly in the absence of a written employment contract. Only a couple of states and cities have enacted legislation protecting employees from adverse employment action based on leisure time or off duty conduct. However, as the role of the employer becomes more and more controlling in the average citizen’s daily life, such legislation is likely to catch on.

Large employers have become something akin to quasi-governments given their power over our daily lives and ability to control our behavior. The role of the employer is often much more influential than the role of the government, in one’s daily routine. Accordingly, federal legislation is necessary to protect the privacy interests of workers nationwide, to prevent the employer from taking the place of Big Brother in 2004. For now, at least one adult Internet model’s First Amendment rights have been vindicated; something all too rare in modern times.

Lawrence G. Walters, Esq., is a partner in the national law firm of Weston Garrou & DeWitt, with offices in Orlando, Los Angeles, and San Diego. Mr. Walters represents clients involved in all aspects of adult media. Nothing in this article constitutes legal advice. Please contact your personal attorney with specific legal questions. Mr. Walters can be reached at Larry@LawrenceWalters.com, through his website: www.FirstAmendment.com or via AOL Screen Name: “Webattorney.”


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