Discrimination, Free Speech, and Pain and Suffering…They may not be what you think they are.
I am often faced with clients or prospective clients who tell me one of the following:
“I’ve been discriminated against! I want to sue!”
“They violated my free speech rights.”
“I am entitled to pain and suffering.”
Well, terms like “discrimination,” “free speech,” and “pain and suffering” are terms used and abused by the general public on a regular basis. While you may see them repeated in silly afternoon court room shows, or on Saturday Night Live skits, they aren’t what most people think they are.
Before I go any further, let me be clear: None of what is discussed below is legal advice, and you shouldn’t rely on it like it is. The law can be complicated, and contains exceptions. If you have a legal question, get a lawyer.
Let’s talk about “pain and suffering.”
Pain and suffering is a concept that belongs to personal injury law, or what we lawyers call “torts,” from the French word meaning “wrong.”
So, if you break your leg (and I have), believe me that you are going to go through some pain and suffering. You may or may not be entitled to compensation for that. Talk to a lawyer like me to find out. Just call me at 732-359-0242 and I can tell you if your injury entitles you to some compensation. And by compensation, I mean “money.”
But you are definitely not entitled to compensation for what can best be called “aggravation.”
And by “aggravation,” we mean things like, “Your neighbor made you mad by repeatedly trespassing on your property with his dog who pooped on the grass,” or “Your business partner has messed up the relationship, screwed up the business, and you have had sleepless nights over it.”
None of that is “pain and suffering,” even if it may involve “pain” and some “suffering” in the everyday sense of the words. In the legal sense, it doesn’t fly. So, if you hire our firm, listen to us when we say that your case does not involve pain and suffering. We know what we are talking about. You may be able to sue to get a court order telling your neighbor to keep himself and his dog off your lawn, and you may be able to sue your business partner for a lot of things, but pain and suffering is not one of them. But if your neighbor keeps letting his dog poop on your lawn, and it’s really bothering you, or if your business partner is ruining (or has already ruined) your business, give us a call: 732-359-0242.
When it comes to “free speech,” it has a very specific meaning. It’s a constitutional right under the First Amendment to the Constitution of the United States, (and a right under many, if not all, state constitutions in the United States), and it doesn’t mean you get to say whatever you want, wherever you want, and however you want.
And most importantly, it doesn’t mean that your employer, or your church, or a lot of other people or organizations can’t restrict things you say without some consequences to you…like getting fired or expelled from the church congregation or kicked out of your fishing club.
No, your First Amendment right restricts the government from telling you what you cannot say or from compelling you to say what you do not want to say.
And even then, your speech can be restricted in what we call “time, place and manner.”
For instance, I can’t blare out on a megaphone (loud manner) to my next-door neighbor (in a residential neighborhood) at 3:00 AM (inconvenient time) that I don’t like a vote he made on the town council. He’d be within his rights to call the cops, who would be within their rights to issue me a summons and complaint, and that would be that. I might even get charged with a criminal or quasi-criminal disorderly persons offense for harassment. What I can do is write him a letter, or tell him in person, or even put a (reasonably sized) sign on my lawn expressing my displeasure…maybe even in not-so-elegant terms. (But I wouldn’t try using any expletives in a lawn sign, nor in a letter if I want to be effective in getting my point across.)
And if you don’t believe me, you can ignore my advice, try the megaphone, and see what happens. But you may need us to represent you afterward.
Also, you can be sued for things like defamation and libel if you harm a person’s reputation by saying things that are false. And if you get sued and lose, it may be expensive. Even if you get sued and win, it’s going to be expensive, because legal fees and costs can add up.
So, don’t go around thinking that you can say whatever you want without consequences while enjoying the protection of the law. And I would add that a lot of government officials who ought to know better also abuse the term “free speech” and “peaceful protest.” Don’t be taken in. They do it for political reasons, or they do it because they are ignorant, and some probably do it because they are all at the same time doing it for political gain, and they are ignorant, and they are just plain dumb. Government is full of people who have no business governing or giving out information on certain subjects.
But a lot of people also think that certain kinds of speech can be restricted when it really can’t. And when that happens, you can definitely sue the government and vindicate your rights, and maybe even receive an award of money. Police can’t harass you just because they don’t like your message, or just because someone called the cops and want you removed because the person calling the cops doesn’t like your message. And that happens a lot more than you might think. So if you think you have a case, give us a call. We know how to handle it.
Lastly, let’s talk about “discrimination.”
A lot of people talk about discrimination like it’s a bad thing. And often, it is. We all know that you can’t refuse to hire a qualified person because she’s black, or a woman, or belongs to some other “protected class.”
But discrimination has to be illegal discrimination. It can’t be any kind of discrimination.
“Discrimination” in the real sense of the word means to make choices between differing characteristics in things, or differing characteristics in people. It does not always mean “bad prejudice against people or a certain kind of person,” which is what we are usually talking about when it comes to the law.
So, you can choose between qualified and unqualified job applicants. But you can’t choose between prospective employees on the basis of skin color.
You may not want to hire a particular person to answer your office telephone. It may be because that person’s manner is unprofessional and rude. But that doesn’t mean that just because someone happens to be in what we call a “protected class,” such as a certain race, that person can then turn around and sue you just because you didn’t get hire that person. Maybe he showed a poor business demeanor, or got fired for being unprofessional and rude. In that case, you are engaging in perfectly legal and proper discrimination. That is, you are distinguishing between professional and not-so-professional people. It’s just that people don’t usually think of that kind of decision as “discrimination,” because that’s usually not the kind of discrimination we talk about in everyday conversation. We are usually talking about “the bad kind.”
Not only that, but no one has the right to be free from discrimination based on their favorite ice cream, sport, or news organization. There are generally no laws against that, as arbitrary as that may be, or as much as (some) people may not like it. There may be some wrinkles and exceptions to that, and to figure it out, you need to hire a qualified lawyer to go over the facts and the law. But generally, only certain kinds of discrimination can result in a lawsuit that isn’t frivolous.
None of what we have discussed above is legal advice, and you shouldn’t rely on it like it is. The law can be complicated, and contains exceptions. If you have a legal question, get a lawyer.
CJ Brennan Law has been serving residents of the Jersey Shore and statewide for almost a quarter century. If you think you have a legal matter that needs the attention of a qualified and experienced attorney, call us at 732-359-0242. And if you are wondering whether you need an attorney, you probably do. Call us at 732-359-0242 and see if we can help. We probably can. 732-359-0242