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In complaints filed with the government in one case, Mark A. Sweet, a lawyer for two fired restaurant workers in Milwaukee, said the restaurant had violated the National Labor Relations Act by firing the workers for what he considered legally protected activities: efforts to assist in the mutual aid and protection of themselves and other immigrant workers.
The report strongly condemns the department for violating "the First Amendment by retaliating against individuals engaged in constitutionally protected activities".
The organization properly argues that it may not be penalized for engaging in constitutionally protected activities, like providing abortion services with its own money.
The designation was used to justify open-ended "terrorism enterprise investigations," circumventing court-imposed limitations on police investigations of constitutionally protected activities.
"At the time of the U.S.A. Patriot Act, there was concern that the F.B.I. would exploit the broad scope of the business-records authority to collect sensitive personal information on constitutionally protected activities, such as the use of public libraries," a Justice Department official wrote in a letter to Congress, alluding to one of Obama's former concerns.
And while Napolitano hopes to enlist ordinary Americans in the fight against terrorism, her department, with the help of federally-funded state fusion centres, politically profiles citizens with unorthodox views, such as antiwar groups and libertarians, confusing them with terrorists for engaging in constitutionally protected activities.
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Different venues have varying definitions for "protected activity," but at a minimum, protected activity provides that attorneys are entitled to lie on behalf of their clients.
But he said an employee's criticizing a company or supervisor on Facebook was not necessarily protected activity.
The watchlisting guidance says that "first amendment protected activity alone shall not be the basis" for nominating someone to the lists.
"Geo-mapping", the FBI's purported tactical crime fighting tool, was exposed as a covert mapping program to track and monitor Muslim communities engaging in constitutionally protected activity, without any suspicion of crime.
But Stephen M. Kohn, executive director of the National Whistleblowers Center, said, "many of the companies that are complaining now about these rules have for years argued that going to an internal corporate compliance department is not a legally protected activity".
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com