Cancel culture. Cancel culture. The right wing trumpets it so many times it rings in my ears. Freedom of speech, the right's mouth pieces claim, is "silenced" by the liberals and socialists who, conservatives say, control the nation's media and universities, canceling out all but their own speech.
But it is not those on the left that threaten free speech in any systematic way. It is those on the right that have a long and continuing history of silencing those who espouse even moderately progressive ideas and programs.
Worse, even as the right claims to hold the Constitution and its First Amendment free speech rights in high esteem, it aggressively attacks the Constitution's Fifteenth Amendment voting rights guarantee, which came into being only after 800,000 died in the Civil War to save the Union and end slavery.
Moreover, the right has been waging its own war on speech, assembly, and association going back well in the 20th century.
Look at the right's history of silencing former communist party members, or those it called "fellow travelers," no matter how old their participation was. In the post-World War II years, the right-wing House Un-American Activities Committee and Senator Joe McCarthy used the fear of communism to silence progressives by threatening employers into firing or blacklisting employees in the motion picture industry, the leaders of the Congress of Industrial Unions (CIO), as well as those in government or teaching in universities. Fueling the attacks, many newspapers and radio networks acted as megaphones.
Then, of course, there was still Jim Crow creating a virtual wall of silence in the overwhelmingly white-dominated South. After the United States passed the 1964 Civil Rights Act, I first went to work for the National Association for the Advancement of Colored People as a newly minted civil rights lawyer.
As I traveled South, the Ku Klux Klan, with local law enforcement often joining in, murdered civil rights workers seeking to maintain their brutally violent racist culture. The murder of four black girls in a Birmingham church in 1963 and Bull Conner unleashing dogs and powerful fire hoses on nonviolent demonstrators awakened press to the brutality. But even then it took unparalleled violence and additional civil right murders to create the necessary momentum to pass the 1965 Voting Rights Act.
The last four years show we never left that dark period behind. The right is still viciously attacking the basic exercise of First Amendment rights—and waging the most sustained attack on voting rights since Jim Crow.
We just survived four years with Donald J. Trump. His response to those in the media who had the integrity to report his lies, evasions, and dog whistles, was to "cancel" White House press conferences, and use twitter to broadcast his falsified version of the news. Like Bull Connor in Birmingham, Trump encouraged violent police conduct against demonstrators marching under Black Lives Matter banners as well as bullies, whom he praised at his own rallies for assaulting protesters.
Even more insidiously, Trump endlessly and systematically attacked the media for publishing what he called "fake news." Nor was he alone in misleading the public. Fox echoed him, as did the opinion pages of the Wall Street Journal and the media newcomers that sprang up even further to the right, playing to the Republican Party and Trump's base among the 74 million people who voted for him. Trump and his captive party still do that. They trumpet "Fake News" and "Stop The Steal," with the media acting as an echo chamber.
The right's purpose is clear: Blot out mainstream media. Substitute "the lie" for news.
This is the backdrop of the present-day struggle to preserve for Black Americans their constitutional right to vote and have their votes counted, as guaranteed in the Fifteenth (1865) and Nineteenth (1920) Amendments. After the United States withdrew its troops from the South in 1876, the white ruling classes, their land owners, politicians, and sheriffs, gradually stripped Black Americans of their voting rights as well as virtually all their citizenship rights, placing them at the bottom of a cruel racial caste system.
This began to change after the Supreme Court's 1954 school desegregation decision, Brown v. Board of Education, and then Congress' 1964 Civil Right Act. These ushered in the end of Jim Crow, and Congress re-established the right to vote in 1965 and provided federal provisions to ensure its enforcement. As a result, Black voting steadily increased.
In 2013, however, a conservative Supreme Court struck down key enforcement provisions of the 1965 Voting Rights Act which applied to the old Confederate states as well as a few Northern states that had engaged in exclusionary voting tactics. After voters of color helped elect Barack Obama to two terms, and then helped Joe Biden oust Donald Trump and flip the Senate in 2020, the far right voter suppression machine shifted into overdrive.
Republicans are now pressing state legislatures and local governments to do whatever it takes—including closing polling places, limiting the use of absentee ballots, ending Sunday voting, reducing early voting days and shortening voting times, eliminating drop boxes, requiring voters to have certain identification documents, even prohibiting people from giving water to those in long voter lines—to drive down voter turnout.
Put simply, they seek to "cancel" the Constitutional amendments which afford all Americans the right to vote. Cancel culture indeed.
Now when Black citizens exercise their rights to ask corporate America to boycott the states passing such laws, the right threatens that if corporations engage in actions intended to help preserve voting rights, the affected states should strip them of government benefits such as tax breaks. To back up their threats, the right has Senate Minority Leader Mitch McConnell in their corner demanding that corporate America not side with Democrats and what he calls "far left mobs." Stay out of it, he says, after years of getting and obtaining their support.
Bottom line: The right wing not only seeks to cancel progressive's free speech but the voting rights of tens of millions of Americans. The right's claims to defend free speech and fight back against "cancel culture" are bogus, little more than a thinly disguised mask. Progressives should not let the right get away with it. These issues are critical to the survival of our democracy.
Arbitrability Of Sarbanes-Oxley Whistleblower Claims
This article explores the arguments presented by member firms and registered employees, and outlines what arbitration panels have decided. Laurence S. Moy. Pearl Zachlewski, Linda Neilan, and Katherine Blostein. The Neutral Corner, Newsletter of FINRA Neutrals, Volume 1, 2008.
Since the passage of the Sarbanes-Oxley Act of 2002 (SOX), arbitrators handling employment claims may be faced with a throny question concerning SOX whistleblower claims: Should a SOX claim be litigated in court or arbitrated? Ultimately, the question comes to whether SOX whistleblower claims constitute "employment discrimination" claims, and are thus exempt from arbitration under Rule 13201 of the Code of Arbitration Procedure for Industry Disputes (Code). This article explores the arguments presented by member firms and registered employees and outlines what arbitration panels have decided.
Anne Golden and Piper Hoffman, The Employee Advocate, Spring/Summer 2006
When Good Deeds Are Punished: The Legal Landscape of Retaliation and Whistleblowing
Co-authored by Laurence S. Moy and Nantiya Ruan, 745 PLI/Lit. 581 (2006)
Whistleblower Claims Under The Sarbanes-Oxley Act Of 2002
Laurence S. Moy, Linda A. Neilan, and Hollis Pfitsch (Summer Associate), Practising Law Institute, October 7-8, 2004, and December 9-10, 2004.
In the wake of recent accounting and corporate scandals, Congress passed the Sarbanes-Oxley Act of 2002 (hereinafter, “Sarbanes-Oxley,” “SOX,” or the “Act”), Public L. No. 107-204, Sec. 806, codified at 18 U.S.C. § 1514A.1 In addition to providing greater oversight of the accounting industry and protecting investors, the Act prohibits employers from retaliating against whistleblowers. (“Whistleblower” might be considered a misnomer since the Act’s scope is not limited to employees who “blow the whistle” by refusing to engage in illegal or wrongful acts or by reporting such activities to the employer or the appropriate authorities.) The Act provides extensive coverage to employees who report improper conduct as well as employees who participate in proceedings relating to same. Companies that fall under the purview of Sarbanes-Oxley are prohibited from discharging, demoting, suspending, threatening, harassing, or discriminating against any employee who engages in protected activity. 18 U.S.C. § 1514A(a).
Prior to Sarbanes-Oxley’s enactment, federal and state whistleblower statutes provided limited protection for a narrow class of employees. The False Claims Act covers employees only if they report fraud on the federal government. 31 U.S.C. § 3730(h).2 In New York, a state statute had provided pre-Sarbanes-Oxley whistleblowers with extremely limited coverage. That statute, New York Labor Law § 740, only protects an employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.” N. Y. Lab. Law § 740(2). Thus, Sarbanes-Oxley has vastly changed the horizon of protection for whistleblowers in the private sector.
This paper addresses the whistleblowing provisions of the Act and its accompanying regulations, provides guidance to lawyers advising companies responding to potential whistleblower complaints of improper conduct, and reviews the duties of lawyers to report wrongful conduct as per the Securities and Exchange Commission’s (“SEC” or “Commission”) new regulations.