Civil Rights

Written By: Christopher B. Dolan and Matthew D. Gramly

Tony from Belvedere asks: Do I have any right to privacy if others use photos of me that I posted online to social media or for other purposes since it’s without my permission?

Dear Tony: This is an interesting question, and one that evolves in the age of Facebook, Twitter, Tik Tok and other social media sites that people use to post photos and videos of themselves, their families and friends. Once you post a photo or video of yourself online, do you still own it? Do you still have any control over it? Can you stop others from using your photos and videos if they don’t have your permission to use them?  

There is a case out of San Diego, a lawsuit that was filed last month, which can provide some real-time insight into these issues. In June 2020 a woman named Amber Lynn Gilles went into a Starbucks location to get some coffee. She was not wearing a mask and refused to put one on while inside the store. The barista who was serving her, Lenin Gutierrez, explained the store’s mask policy to her and politely told her that he could not serve her unless she put on a mask. She again refused, threw a fit, called the employees and other customers, “Sheep!” and other derogatory names and then left the store in a huff without a coffee.

Later, Ms. Gilles put up a post on her public Facebook page which included a photo of Mr. Gutierrez with a caption that misspells the barista’s name, “Meet lenen [sic] from Starbucks who refused to serve me cause I’m not wearing a mask. Next time I will wait for cops and bring medical exemption.” She attempted to publicly shame the Starbucks employee with her Facebook post. That plan backfired spectacularly.

While Ms. Gilles’ Facebook post did go viral, it inspired a man named Matt Cowan, who had never met Mr. Gutierrez, to start a GoFundMe page for Mr. Gutierrez’s benefit. Mr. Cowan wrote on the Go Fund Me page that it was for the benefit of a local barista’s, “honorable effort standing his ground when faced with a Karen in the wild.” The name “Karen” has morphed into pejorative vernacular denoting a typically white, suburban, entitled female who throws a very public and energetic tantrum beyond the scope of what might be construed as normal. Mr. Cowan’s Go Fund Me page also went viral and it eventually raised over $100,000 for the Starbucks barista, who received all of the money minus taxes owed.

Ms. Gilles was upset that so much money was raised for the Starbucks’ barista. She demanded half of the money because, after all, there would not have been a Go Fund Me for the benefit of Mr. Gutierrez without her. Her demand for money was refused, so she filed a lawsuit against Mr. Cowan, the person who started the Go Fund Me page. Part of her lawsuit stems from the fact that Mr. Cowan had included a screenshot of Ms. Gilles’ Facebook post in the Go Fund Me page.

In her lawsuit Ms. Gilles claims that Mr. Cowan had misappropriated the screenshot of her Facebook page and that he then used the image without permission and for the purpose of publicly painting her in a negative light, which she alleges is an invasion of her right to privacy. Amusingly, both parties to the lawsuit turned to Go Fund Me to crowd source their legal fees. Ms. Gilles has raised $6,000 while Mr. Cowan has raised $14,000 using the headline, “Help, I’m being sued by a Karen.”  

These facts raise several issues ranging from Ms. Gilles’ purported right to privacy in a public Facebook post to Mr. Cowan’s First Amendment right to freedom of speech in posting to a Go Fund Me page about Mr. Gutierrez’s plight. Noting that Ms. Gilles’ lawsuit is subject to being dismissed pursuant to an Anti-SLAPP motion (a mechanism in the law designed to prevent people from being sued for speaking out on issues of public concern or significance), Eric Goldman, a professor at Santa Clara University School of Law, balances the rights of each party to this lawsuit: “The publicity rights are limited by the First Amendment and I think that the First Amendment ought to apply here.” Goldman goes on to suggest that Ms. Gilles will lose her lawsuit: “I really think it will be an easy case. That there was no way to tell the barista’s story without talking about what happened.”  So it seems clear that in this case, Ms. Gilles will not be successful in claiming a right to privacy in a public Facebook post about the same issues that Mr. Cowan posted about on his Go Fund Me page.

As an aside, Ms. Gilles also recently sued San Diego grocery store Sprouts for refusing service to her while she refused to wear a mask, claiming a mask exemption through the Americans with Disabilities Act. Dismissal of that case for failure to serve the Defendant is imminent.

Written By: Christopher B. Dolan and Kimberly E. Levy

Jacob from San Francisco asks: What is the filibuster? Where did it come from? And how do we get rid of it?

Dear Jacob: Good questions. The filibuster is a form of political obstruction with a sordid past. Essentially, a filibuster is a procedure by which the U.S Senate minority blocks the Senate majority from voting on a bill and thereby prevents its passage. The Senate filibuster was created accidentally in 1806 when a Senate rule allowing the majority to initiate a vote on a bill was deemed to be redundant and written out of the rules. In the absence of a mechanism for ending debate and initiating a vote, use of the filibuster became possible.  

As a result, in 1917 the Senate adopted a cloture rule to bring debates to a quick end. If a two-thirds Senate majority voted to end the filibuster, then the debate was closed. However, it remained exceedingly difficult to end a filibuster even with cloture —  super majority support was required before a vote on any bill. Rarely able to invoke cloture, the Senate eventually reduced the cloture threshold from 2/3 votes to 3/5, which is where it stands today. To this day, the filibuster still permits a minority of senators to keep debate open in the Senate and indefinitely delay a vote; this effectively allows any legislation to be “killed” by a minority of senators who simply refuse to bring the bill to a vote, even though most bills require only a simple majority to pass. 

The filibuster has been used with increasing frequency by the Senate minority to prevent passage of anything but non-controversial legislation and has been used to further institutionalized racism. Southern segregationist Senators infamously used the filibuster to prevent passage of landmark civil rights legislation including hundreds of bills to combat lynching, the 1957 Civil Rights Bill, and the 1964 Civil Rights Bill which was eventually passed regardless of the filibuster. Historically, the filibuster has been used as a tool to advance a minority agenda and proliferate systemic racism in the United States. The filibuster continues to aid in the suppression of civil rights progress to this day. In fact, the very make-up of the Senate chamber, two-senators-per-state, favors less populated states which are disproportionately white states; these less populous states have a disparate amount of power in the Senate. This disproportionate representation, combined with the requirement for a 60-vote threshold to bring a bill to vote, has stalled racial justice in the United States.

Moreover, the filibuster is not required by the Constitution, nor is it even contemplated within the Constitution. To the contrary, the filibuster undermines the system of legislature envisioned by the framers by replacing legislative decision-making based upon the will of a simple majority with the requirement to obtain a super majority in the Senate to pass legislation. Only specific acts were meant to be governed by a super majority, i.e., impeachment conviction, overriding presidential veto, ratifying treaties, etc.   

In the Federalist Papers, framers James Madison and Alexander Hamilton both expressly point out that to require anything more than a simple majority to pass legislation would be to place undue power and influence with the minority. Madison states, “[i]t would be no longer the majority that would rule: the power would be transferred to the minority.” Disproportionate power and influence from the minority, as embodied by the filibuster, was a major problem with the Articles of Confederation. 

There are some ways to bypass the filibuster. Provisions of law that set time limits for debate are not subject to the 60-vote requirement to initiate a vote and are therefore unaffected by the filibuster. Such provisions include trade authority, congressional review of Presidential acts, in cases of national emergency, and when invoking war powers.  

Another way around filibuster is a process called budget reconciliation. The annual budget process circumvents the 60-vote requirement with a simple majority in both the house and senate. The budget resolution is then followed by a Senate reconciliation bill which brings the budget into line with any funding amounts in annual appropriations bills by simple majority.  

The filibuster may be limited or eliminated altogether by a simple majority vote to change the Senate rules. Ironically, the decision to change the Senate rules is itself subject to filibuster. The rules of the Senate do provide for a “nuclear option” which allows any Senator to challenge a rule’s Constitutionality or simply assert that the rule should not be followed. The presiding Senate officer will typically uphold the Senate rules — a ruling which may be immediately appealed and put to vote without debate requiring only a simple majority. The nuclear option has been used to eliminate the filibuster for presidential appointments.  

The Senate filibuster has and continues to stymy lawmakers, preventing meaningful policy change in the United States. It is time for the legislature to be liberated from the will of the minority and eliminate the filibuster.