Monday, February 27, 2023

Court of Appeals reinstates hostile work environment claim against New York City Housing Authority

The Court of Appeals has reinstated a discrimination claim against the New York City Housing Authority, holding that management's unsuccessful efforts to replace plaintiff with a Spanish-speaking administrator created a hostile work environment. This is the rare hostile environment case that does not involve explicitly-racial comments directed toward the plaintiff; rather it involves personnel actions and statements made at Housing Authority meetings.

The case is Williams v. New York City Housing Auth., issued on February 23. It all started when the Speaker of the New York City Council, Mark-Viverito, who wielded substantial control over the Housing Authority, screamed and pounded the table at a Housing Authority meeting on July 30, 2015 in which plaintiff, a housing manager at Mill Brook Houses who did not speak Spanish, said she used agency translators to communicate with Spanish-speaking residents. NYCHA's general manager, Clarke, next arranged to transfer plaintiff, telling another agency official to emphasize that plaintiff's transfer was necessary because of "cultural sensitivity needs" at Mill Brook Houses. It was proposed that a Hispanic manager would replace plaintiff, though others in the agency said this option was discriminatory and thus illegal. During a follow-up meeting on August 28, with plaintiff still at the helm, another agency honcho inquired "about the Spanish speaking thing" in a "nasty" manner. While plaintiff was never transferred (on the advice of the Law Department, which probably wanted to avoid a discrimination lawsuit), she claims her superiors tried to sabotage her work by: not replacing essential personnel at Mill Brook Houses and transferring her Spanish-speaking assistant and replacing her with someone named Limo who exhibited deficient job performance. In the end, plaintiff quit her job two years later, stressed-out and suspicious that the agency was setting her up to fail to ensure her departure from the job.   

Plaintiff's hostile work environment claim draws from five separate incidents: (1) the July 30, 2015 meeting at Mark-Viverito’s office; (2) Clarke’s directions to transfer Williams from Mill Brook Houses; (3) the August 28, 2015 meeting regarding Williams’s exchanges with Spanish-speaking residents; (4) NYCHA’s failure to timely fill the vacancies; and (5) the transfer and replacement of Mill Brook’s Spanish-speaking superintendent with Limo. The district court said there is no hostile work environment case, dismissing the complaint.

The Court of Appeals (Pooler, Lohier and Lynch) reverses, issuing a far-reaching decision. On the federal and state law harassment claims, which require the plaintiff to show "severe or pervasive" harassment, the Circuit finds the district court did not view all these incidents in their totality, as is required under Second Circuit and Supreme Court authority. 

A jury might regard the "Spanish manager" demand at the July 30, 2015 meeting a racist comment, and Mark-Viverito's authority over the agency is relevant to this analysis, as is Clarke's silence during the meeting when these comments were made. As for the transfer demand, while plaintiff was not in fact transferred, the jury could find this "cultural sensitivity" demand was motivated by racial discrimination, as cases hold that personnel actions motivated by a plaintiff's "fit" within the workplace may have racial implications, and the transfer was halted because the Law Department said it might be discriminatory; had plaintiff's transfer been proposed for legitimate performance reasons, then the transfer would have been effectuated. While plaintiff was not aware of the ongoing efforts to replace her, that is not dispositive under Second Circuit precedent. The August 28, 2015 meeting also supports the hostile work environment case, as plaintiff says Clarke made aggressive statements about plaintiff's communications with Spanish-speaking residents.

A noteworthy holding in this case addresses plaintiff's argument that her resignation was precipitated by the August 28, 2015 meeting that took place two years earlier. The Court finds: 

Had the court drawn all inferences in Williams’s favor, it would not have dismissed this potential link so readily. For example, though a jury might factor the nearly two-year gap against Williams, the jury could alternatively consider that the staffing shortages, which precipitated Williams’s retirement, began in October 2015, roughly two months after the initial meeting with Mark-Viverito and about one month after the later meeting with Clarke. The court thus overlooked disputed material facts, supplanting the function of a jury.

That two-year gap is the longest I've seen in any discrimination case. 

Overall, the Court finds, the district court misapplied the legal standard in not viewing all these incidents in their totality. The trial court explicitly declined to examine two of the five incidents under the totality test. But that approach prevents the court from realistically viewing the work environment. These events "are a substantial part of [plaintiff's] story" because they relate to the agency's orchestrated effort to remove her from her position. And while the trial court said the evidence does not show that her treatment at the agency tangibly impacted plaintiff's work environment, "a jury could find that the delay in filling the HA vacancies and the transfer of Mill Brook Houses’ Spanish-speaking superintendent, along with the behind-the-scenes effort to transfer Williams, made it more challenging for Williams to carry out her job."

Finally, since plaintiff makes out a hostile work environment claim under federal and state law, her city law claims (which carry a more plaintiff-friendly test) are also reinstated for trial. 


Friday, February 24, 2023

Divided Supreme Court says high-earner is entitled to overtime pay under FLSA

Under the Fair Labor Standards Act, you get overtime if you work more than 40 hours per week. There are many exceptions to this rule. One exception is that a "bona fide executive" is not entitled to overtime. This case from the U.S. Supreme Court examines the executive exception and finds the plaintiff is not exempt and can get his overtime pay.

The case is Helix Energy Solutions Group v. Hewitt, issued on February 22. Plaintiff worked about 84 hours a week on an offshore oil rig but got no overtime. He was a high earner, however. Paid on a "daily rate" basis, he earned anywhere from $963 to $1,341 a day, amounting to more than $200,000 annually. Under the daily rate, plaintiff got paid a certain amount if he worked one day in a week, twice as much for two days, and so on. But not a set, weekly or annual salary. Under the regulations, you are classified as an executive under the FLSA if you are paid on a "salary basis." Does plaintiff get his overtime?

The 6-3 majority rules for the plaintiff. In dissent, Justice Kavanaugh says that plaintiff seeks hundreds of thousands of dollars in lost overtime. Generally, you are classified as an executive under the FLSA if you perform executive duties and earn at least $100,000 per year with a predetermined weekly salary of at least $455 for any week that you work. Your instincts would suggest that plaintiff falls within the exception and does not get overtime. But FLSA exception rulings are more complicated than that. 

The employer did not pay plaintiff on a salary basis as defined under the statute. He got paid on a daily rate, for days that he actually worked. In contrast, other employees who might get paid even for days they do not work, such as if they are out sick, do not get overtime under the bona fide executive exception. The latter employee is a salaried worker under the dictionary definition, which is distinguished from "wages" which is "pay given for labor" at "short stated intervals." Again, these definitions derive from a standard dictionary, including one published in 1949, a decade after the FLSA was enacted. 

The 6-3 lineup mixes conservative with liberal justices. Justice Kagan wrote the decision. Joining her were Justices Roberts, Thomas, Sotomayor, Barrett and Jackson. Justice Gorsuch dissents, with Kavanaugh and Alito joining in dissent. While three conservative justices (Roberts, Thomas and Barrett) voted with the majority, this would be regarded as a "liberal" result since it allows the plaintiff to recover overtime and thus expands the rights of employees. See? Liberals don't always lose in the Supreme Court.

Tuesday, February 21, 2023

Defamation lawsuit against Trump-affiliated Fox News commentators will proceed

The Appellate Division has ruled that a defamation lawsuit filed by Smartmatic voting machines against Fox News and various Trump-affiliated defendants may proceed to discovery. This case arises from the defendants' public comments about Smartmatic and their claims that this company's software caused former President Trump to lose the 2020 election.

The case is Smartmatic USA v. Fox Corp., issued by the First Department on February 14. State Supreme Court summarized the allegations as follows:

In November and December 2020, Fox News broadcasted 13 reports in which it stated or implied that SUSA (Smartmatic) stole the election, and repeated the stories in articles and social media postings. Fox News, its employees and/or guests claimed, among other things, that: SUSA was a Venezuelan company under the control of corrupt dictators from socialist and communist countries; its election technology was used in six “swing” or “battleground” states with close outcomes (Nevada, Arizona, Georgia, Pennsylvania, Michigan and Wisconsin); SUSA’s software was designed to “rig” elections, and did so by switching votes from President Trump, the Republican candidate, to Joseph Biden, the Democratic candidate, who won the election and is now President; SUSA’s software was used in voting machines manufactured by Dominion Voting Systems Corporation (“Dominion”); SUSA sent votes to foreign countries for tabulation and manipulation (Doc. 1 at par. SUSA’s software was hacked; and that SUSA had been banned from participating in prior elections in the United States.

        . . . 

Additionally, plaintiffs alleged that defendants Fox News and its employees, Maria Bartiromo, Lou Dobbs, and Jeanine Pirro, used the story to preserve Fox News’ viewership and that the Fox anchor defendants used it to earn money. Plaintiffs further alleged that attorneys Rudolph Giuliani and Sidney Powell also profited by promoting this false narrative, which has since become known as “The Big Lie”, both on Fox News and elsewhere.
Supreme Court allowed the case to proceed against some defendants (Fox News, Dobbs, Bartiromo, and Giuliani) but not others (certain claims against Guiliani [the former Mayor of New York City and the former United States Attorney] and claims against Pirro, a former Westchester County District Attorney and judge). The Appellate Division reinstated the claims that were dismissed. "[A]ccording to the allegations in the complaint, Fox News, Dobbs, and Bartiromo stated that Smartmatic’s election technology and software were widely used in the 2020 election and in Dominion machines to switch votes, when they actually knew, or easily could have known had they not purposefully avoided publicly available knowledge, that in 2020, the Smartmatic technology was used only in Los Angeles County and that the vote switching claims otherwise had no support." 

The claim against Fox news is dismissed on appeal but plaintiffs have the option to replead, "as the complaint does not adequately allege that any Fox Corporation employee played an affirmative role in the publication of the challenged defamatory statements. Nor does the complaint adequately allege that Fox Corporation wholly dominated Fox News so as to liable for the acts of its subsidiary."

Friday, February 17, 2023

2d Circuit will not re-hear case involving bakery trucks and the "transportation exception" to the Federal Arbitration Act

The Court of Appeals has decided not to rehear a lawsuit that touches upon an interesting issue: when can a plaintiff invoke the so-called transportation exception to mandatory arbitration? This issue may be mundane for non-lawyers, but it highlights a potential issue for the Supreme Court about the scope of the exception.

The case is Bissonette v. LePage Bakeries, Inc. En banc was denied on February 15. Plaintiffs buy baked goods from a company that makes buns, snack cakes, and bread. They sell the baked goods to bakeries and supermarkets. Of course, they drive a truck to perform their work. They have a wage-and-hour dispute with their employer and wanted to bring suit in federal court and avoid arbitration. But they must have signed an arbitration agreement, and management wanted the case out of court and into arbitration, a more favorable forum for employers. Plaintiff opposed arbitration, arguing that the Federal Arbitration Act's transportation exception allows transportation workers like them to litigate their cases in federal court. The Second Circuit last year said that while plaintiffs drive a truck, they cannot invoke the transportation exception because they are not in the transportation industry but the bakery industry

Under the FAA, employment contracts are not subject to arbitration involving "seamen, railroad employees and any other class of workers engaged in foreign or interstate commerce." The class of workers encompassed by the residual clause is "transportation workers." As the Second Circuit saw it in the 2022 ruling, the two examples in the FAA, seamen and railroad employees "locate the 'transportation worker' in the context of a transportation industry." Shortly thereafter, the Supreme Court issued Southwest Airlines v. Saxon, 142 S. Ct. 1783 (2022), which held that not everyone who works in the transportation industry can invoke the transportation exception, as the courts must consider "the actual work that the members of the class, as a whole, typically carry out," which means in other words, "what the worker 'frequently' does for the employer." The plaintiff in Saxon was able to invoke the transportation exception under the FAA because she worked for an airline. 

After Saxon was handed down, the plaintiffs in Bissonette asked the Court of Appeals to reconsider its ruling, arguing that the reasoning in Saxon supported their argument. That effort failed. The Supreme Court in Saxon said that that not everyone who works for the airlines can invoke the exception, and the holding in Saxon is not so far-reaching that it could change the result in Bissonette, the Second Circuit held, because "those who work in the bakery industry are not transportation workers, even those who drive a truck from which they sell and deliver the breads and cakes." That ruling in Bissonette was the Second Circuit's second decision in that case in 2022.

Now we have a third ruling, though this is in the form of individual opinions on the suitability of an en banc hearing for the entire Second Circuit to hear the case. There will be no en banc because only three of the 13 full-time judges on that court want an en banc. The Court of Appeals rarely hears cases en banc, so I assume plaintiffs will seek review from the Supreme Court.

Dissenting from the en banc denial, Judges Nathan, Robinson and Perez write that Saxon brings the Bissonette plaintiffs within the transportation exception. They write:

Maintaining the “transportation industry” requirement is, as Saxon demonstrates and holds, unsupported by the text of the FAA. Saxon tells us that in interpreting the Section 1 exemption, we must attend to the nature of a worker’s duties, not the industry of their employer. Our prior precedent and the amended opinion do not so attend.  Because the amended majority opinion is in direct conflict with the textual reasoning and holding of the Supreme Court’s intervening decision in Saxon, I respectfully dissent from the denial of rehearing en banc.
Judge Jacobs, who was on the original Bissonette panel submits a separate decision defending that ruling and stating that the three judges who want en banc are reading the transportation exception too broadly. After noting that plaintiffs drive a truck to deliver baked goods, Judge Jacobs writes:

If they could be deemed transportation workers simply by eliding the foundational question of whether they work in a transportation industry, so could the undertaker who drives a hearse, the milkman in the morning, the chef in a food truck, and the person who delivers a pepperoni with extra cheese.

. . . 

To be exempt from contractually compelled arbitration, a worker must be one who works in a transportation industry. . . . The prime error that has been rejected in this in banc poll is to skip the question of whether the plaintiffs work in a transportation industry, and to consider only whether they
move things about.


Wednesday, February 15, 2023

Inmate cannot sue jail over another inmate's assault

This inmate claims that jail officials did not protect him from a violent inmate who attacked him at the Westchester County Jail. Plaintiff says the failure to protect violated the Due Process Clause. Plaintiff loses, demonstrating how hard it is to win cases like this.

The case is Haslinger v. Westchester County, a summary order issued on January 18. When plaintiff was arrested and taken to the Jail, an officer asked if plaintiff "had any problems with" any other inmates at the Jail. Plaintiff replied that he had been in an ongoing dispute with an inmate named Rooney and that he wanted to be kept away from this guy. At the time, Rooney was not at this jail,but plaintiff's request for a "keep-separate order" (in the event Rooney showed up) was denied. Rooney coincidentally entered the Jail a few days later, when he attacked plaintiff and injured his neck and eye socket. Plaintiff's lawsuit alleges that the failure to keep him away from Rooney violated the Constitution.

As a pre-trial detainee who was not yet found guilty of anything, plaintiff has greater rights than a convict. That's the rule in Darnell v. Piniero, 849 F.3d 17 (2d Cir. 2017), a case I briefed a few years ago. But plaintiff cannot win the case because he cannot prove deliberate indifference by not issuing the keep-separate order. Plaintiff did not precisely tell the guards what risk he faced should Rooney enter the Jail. That lack of specificity dooms the case. Here's the reasoning:

Although the parties dispute the precise words Haslinger used to describe his dispute with Rooney, Haslinger has offered no evidence indicating that he communicated the threat Rooney posed with any degree of specificity.  In his deposition, Haslinger stated that he told Officer Mays that he “need[ed] to keep away [from] Dennis Rooney because . . . of the little beef [they] had from prior being in jail.” But Haslinger never stated that he warned Officer Mays that Rooney posed a threat of physical harm or that he feared for his safety.  Thus, there is no reason to believe that Officer Mays “knew, or should have known, that [Rooney] posed an excessive risk to [Haslinger’s] health or safety.”
Telling a guard that he and Rooney had a "little beef" from "prior being in jail" is not precise enough, says the Court of Appeals (Sullivan, Bianco and Perez). I can see how in a different world, with different legal standards, plaintiff could win the case on these facts, but that is not our world. In our world, plaintiff has no recourse.

Friday, February 10, 2023

2d Circuit declines to rehear church defamation case

The Second Circuit has declined to rehear a defamation case brought against a religious organization. The judges who want to hear the case again believe the original opinion in favor of the minister-plaintiff violates certain constitutional principles protecting church defendants from court-interference in their affairs.

The case is Belya v. Hilarion Kapral, issued on February 8. Last year, the Court of Appeals allowed this case to proceed. See Belya v. Kapral, 45 F.4th 621 (2d Cir. 2022). The plaintiff sued the church for defamation, claiming reputational injury after church leaders publicly accused him of forging a series of letters relating to his appointment as the Bishop of Miami. The church defendants then petitioned the Court of Appeals as a whole to hear the case.

Here is how that works. Three judges will hear a case on any given day. Those three judges are chosen at random from the 20-25 judges who serve on the Second Circuit. If you lose before the three-judge panel, you can ask the court to hear the case en banc, which is Latin for "the Earth stops spinning while the whole court hears the case." Having worked on an en banc case a few years ago, I can tell you it is a momentous occasion, as all the judges hear the case at once and the courtroom is packed to the gills with spectators. In the 17th floor courtroom, the bench is barely large enough to fit all the judges. Only active judges on the Court are eligible to sit en banc. The remaining judges cannot hear the case en banc because they have senior status. The Second Circuit is notorious for almost never hearing cases en banc. For the Court, a three-judge panel's ruling is final and that's that.

The Court's more conservative judges want the Court to hear this case en banc because they think this case interferes with the church's right to manage its affairs without judicial interference. That right is grounded in the First Amendment's freedom-of-religion principles. We call it the "church autonomy" doctrine. The original three-judge panel rejected that argument because the procedural posture arises under Rule 12, which is a motion to dismiss the complaint pre-discovery, and the case for now is a simple defamation case. As such, under the "collateral order" doctrine, the case was before the Court prematurely because there was no final order in the district court and all that happened was the trial court denied the church's motion to dismiss. In federal practice, you normally cannot appeal a ruling unless it is the final ruling in the case and there is nowhere to go but to the Court of Appeals. The church defendants can appeal to the Circuit again if they lose the case following discovery and trial.

The conservative judges who want to rehear the case en banc want to apply the collateral order rule to allow this case to be appealed right away, so the church will not be subjected to judicial interference in discovery and possibly trial. In other words, they think the Court has appellate jurisdiction over the case, which implicates "church autonomy" principles. But the conservative judges do not have to votes to rehear the case. The final vote on the en banc petition is 5-5. A tie vote means no en banc review. The five judges who voted against en banc review (thereby siding with the minister-plaintiff) are Obama-Biden appointees. The five judges who want to hear the case en banc are George W. Bush-Trump appointees, with one Clinton appointee (Cabranes) also voting to hear the case en banc.

Tuesday, February 7, 2023

Constitutional claim against school district fails under Monell

One pitfall in filing civil rights cases against public defendants is the principle that you cannot directly sue the employer, be it a town, village, city, or school district unless you can show the rights violation drew from municipal policy. You don't have to produce a written policy. The policy under Section 1983 may be proven when a final decisionmaker is responsible for the adverse decision, or when the plaintiff can show the violation resulted from an unwritten policy or widespread practice. If you can do that, you have a Monell claim, named after a Supreme Court decision from 1978. Without a Monell claim, you have to sue the individual actors who violated your rights. This case highlights that dynamic.

The case is Kennedy v. Bethpage Union Free School District, a summary order issued on February 6. Plaintiff was a social worker for the school district who spoke out in favor of additional resources for schoolchildren with mental health and psychological issues. The district had a sharp increase in these students. She also spoke out about the rise in mental health incidents among these students. Plaintiff was eventually reassigned from the high school to the elementary school. She sues for retaliation under the First Amendment.

For reasons that are not clear, plaintiff stipulated only to sue the school district, not the individual decisionmakers. That means she needs to plead a viable Monell claim against the district. The district court said she failed to do so, and the Court of Appeals (Cabranes, Lynch and Robinson) agrees. Bottom line: she did not "show either a policy or custom under Monell," and her allegations in this regard are conclusory. The Court writes:

The pertinent allegations in the SAC were conclusory and insufficient. See, e.g., SAC ¶ 108 (“Each of the aforesaid acts or omissions on behalf of the District were undertaken pursuant to a policy or custom of the District, enacted by and carried out by Schneider, as Superintendent, with the tacit approval and authority of the Board of Education and carried out via his direct reports . . . .”); Id. at ¶ 125 (“Plaintiff was advised that the policy [requiring District approval before she spoke at PTA meetings] was directed solely at her and was done so at the direction of Mr. Schneider with the knowledge, condolence, and approval of the District.”).

You need more than this to plead a Monell claim. Pleading it correctly is not easy, as the plaintiff may not have all the evidence she needs prior to filing the lawsuit. Some plaintiffs will amend the complaint later on in discovery to plead a Monell claim if and when the discovery comes their way that supports such a claim. 

The Court of Appeals does not address the merits of plaintiff's First Amendment claim. My guess is that claim would have been dismissed as well. Not all speech in the public workplace is protected under the First Amendment. The Supreme Court said in Garcetti v. Ceballos (2006) that speech pursuant to the plaintiff's official job duties is not protected under the Constitution. The Second Circuit has interpreted that doctrine to cover any speech that is part and parcel of the plaintiff's ability to perform her job. That is a broad standard which knocks out many speech claims in the public sector. Had the Court of Appeals determined whether the plaintiff in this case had a triable case on the free speech claim, that claim would have been vulnerable under Garcetti.


Monday, February 6, 2023

Court rejects challenge to State and City COVID-19 shutdown rules

Here is another challenge to COVID-19 rules. In this case, the plaintiff argues that former Governor Cuomo's Executive Orders dealing with the virus violated the Takings Clause of the U.S. Constitution. They also challenge the rules set down by the City of New York. For various reasons, there is no case here, the Court of Appeals says.

The case is Heidel v. Governor of New York State, a summary order issued on January 31. Plaintiffs claim the COVID-19 rules interfered with their ability to maintain their businesses. One plaintiff is a restaurant. Another plaintiff is a theater group. They want to bring a class action. But on the federal claim, we have ourselves a sovereign immunity problem. Under the Constitution, you cannot sue the State in federal court for certain constitutional violations. You have to do so in the state Court of Claims. Since this case was filed in federal court, plaintiffs try to get around this principle by arguing that "state procedures fail to provide 'reasonable, certain and adequate provision for obtaining compensation,' they may pursue their claim in federal court." In particular, they argue that

(1) the rules effectively “require pre-suit joinder of all class members,” (2) “there is no way for Plaintiffs’ counsel to ascertain and contact the Class members,” (3) “the best possible ethically-permitted mailed notice would lack the key opt-out nature of class actions under both Rule 23 and CPLR Article 9,” and (4) “the Court of Claims requires claimants with business claims such as Class members to identify and verify the ‘total sum claimed’ in damages with specificity.”
The Second Circuit (Leval, Nardini and Cabranes) recognizes that the Court of Claims process makes class-action relief more challenging than in federal court under Fed. R. Civ. P. 23, the procedural steps in the Court of Claims do not prevent plaintiffs from getting individual relief in that Court. 

That analysis covers the claims against the State of New York. As for the claims against New York City, the Court finds that plaintiffs cannot show that any of their injuries were caused by the City policies. That means plaintiffs lack standing to pursue these claims against the City. 

As noted by the District Court, “[w]hile the Complaint makes detailed allegations about public health orders issued by . . . the City, it includes no factual allegations about how those orders affected plaintiffs individually, including any effect on revenue or business operations, or any attempt to stay in business under modified pandemic conditions.” Thus, Plaintiffs never connect the dots between any City policy and their alleged injuries necessary to show causation. Notably, Plaintiffs fail to address City Defendants’ causation argument in their reply beyond mere recitation that the City’s actions caused Plaintiffs’ business closures.

Wednesday, February 1, 2023

Court upholds prior restraint in criminal case

In this case, a journalist was convicted of threatening to disseminate nude photographs of a woman who rejected his romantic advances. One part of the sentence was that the defendant must seek approval from the district court if he wants to publish anything about the female victim. Does this part of the sentence violate the First Amendment?

The case is United States v. Farooq, issued on January 30. The woman is referred to as Jane Doe in the opinion. After Doe rejected Farooq's advances, he somehow got ahold of nude photos of her without her consent. He threatened to publish the photos in retaliation. This threat was especially problematic because Doe isfrom a conservative Paskistani community where women may be harmed or killed if they bring dishonor on their families. Farooq was arrested in Brooklyn over this and found guilty of extortion. He challenges a portion of the sentence that requires him to get permission from the court if he wants to publish anything about Doe in the future.

Were this any other case, this prior restraint would be struck down by the Court of Appeals so fast it would make your head spin. Courts cannot restrict your speech in advance. But this is a criminal case involving serious charges against the defendant. The government can enforce a prior restraint for compelling reasons, and if the restraint is narrowly tailored to that compelling interest. 

Not every First Amendment restriction in a criminal case is upheld. Even convicts have some constitutional rights. The Second Circuit (Kearse, Menashi and Park) cites a few cases to illustrate this point. "We have thus vacated overly broad conditions of supervised release implicating First Amendment rights. In one case, the Court rejected as unconstitutional a condition of supervised  release prohibiting defendant from engaging in internet speech “that promotes or endorses violence, unlawful activity, or any groups that espouse such ideas.” But another case upheld as  constitutional a condition prohibiting association with groups advocating noncompliance with tax laws. 

This case involves a narrowly-tailored speech restriction that satisfies a compelling interest, as it relates directly to the defendant's crime, the defendant was found to have violate court orders in this case,and the speech restriction relates only to the victim in this case and not defendant's speech in general.