Thanksgiving Day 2010: An Invitation to be Grateful

Today, America comes to tables laden with individual expressions of a common menu, a metaphor for the nation itself. Today, America pauses, if but for a moment, in collective recognition that despite our differences and our problems, we have many reasons to be grateful. Law, thankfully, has little to do with Thanksgiving. A shared day of Thanksgiving is one of our oldest national traditions, but the federal Thanksgiving Day legal holiday was not established until 1941.

It’s been my own tradition to use this blog to examine our national legal holidays. A rich tradition of invitations to recognize our blessings and be grateful contained in years of presidential Thanksgiving Proclamations, gives perspective to our mandated Thanksgiving legal holiday.

George Washington issued the first Thanksgiving Proclamation in 1789. There were no turkeys (pardoned or not) or pilgrims in that first Presidential Thanksgiving message. Washington was not thinking about religious separatists or a harvest feast at their settlement at Plymouth; instead Washington wanted the nation be thankful for the end of war and the establishment of our new government and Constitution. The idea of Thanksgiving, Washington notes, started with a request from Congress:

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor--and whereas both Houses of Congress have by their joint Committee requested me "to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness."

Congress was not unanimous in that request, however. Disagreements over the authority of the federal government are a national tradition even older than Thanksgiving. Thomas Tudor Tucker, Representative from South Carolina, after questioning whether our new Constitution would earn the people’s gratitude, concluded: "If a day of thanksgiving must take place, let it be done by the authority of the several States."

The modern Thanksgiving observance, and an unbroken string of 148 consecutive presidential proclamations, begins with Abraham Lincoln. Lincoln, not the pilgrims, established the tradition of the last Thursday of November as day of thanksgiving and praise “with one heart and one voice by the whole American people.” Prior to Lincoln, Thanksgiving bounced around the calendar with observances from November to January to April. Lincoln’s Thanksgiving was less about harvest and more about perseverance and healing.

Prefacing his 1863 invitation to observe a day of thanksgiving, Lincoln proclaims:

In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign states to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere, except in the theater of military conflict, while that theater has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defense have not arrested the plow, the shuttle, or the ship; the ax has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased notwithstanding the waste that has been made in the camp, the siege, and the battlefield, and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom

Thanksgiving takes place in the context of our national life: Washington and the new government, Lincoln and the Civil War, Franklin Roosevelt and the Great Depression. The tradition that the Christmas shopping season, so important to retailers to this day, begins with Thanksgiving (well, it used to) confronted the calendar in 1939. In that year, the last Thursday of November, Lincoln’s date, was in fact the fifth Thursday, November 30th. In a controversial move designed to help struggling retailers, Roosevelt moved his Thanksgiving Proclamation up a week to the second-to-last Thursday in November.

In keeping with Representative Tucker’s response to President Washington, several states responded to President Roosevelt by deciding that Thanksgiving should remain the last Thursday in November. Lincoln’s one heart, one voice was lost.

Perspective returned in a couple years. On December 26, 1941, the Thanksgiving Day federal holiday was created, with a compromise that the legal holiday be the fourth, not last, Thursday of November. Only days after America’s entry into World War II, it seems we understood: we have our differences and our problems, but America has many reasons to be grateful.

Facebook Firing. The Chill Beyond the Water Cooler

While social media, blogs, Facebook, Twitter and the like, are new ways for businesses to interact with key constituents, they are also new ways for businesses to get in to trouble, as current events have reinforced. The recent controversy over the “Facebook firing” of an American Medical Response employee whose complaints about her boss on her personal Facebook page is yet another example of the trouble and the confusion.

In our zeal to keep up with rapidly evolving communication tools, businesses may forget that some old and pretty slow-to-change, legal rules apply. I addressed one set of rules—copyright—the context of another current event in a recent post. The AMR matter highlights with another, the National Labor Relations Act or NLRA.

You might guess from its name that the NLRA is about unions, but you’d be wrong. Nonunion employers are covered as well, so the issuance of a complaint by the federal board that enforces the NLRA, the National Labor Relations Board (which, coincidentally, it announced on Twitter), against AMR over the Facebook firing has implications for all businesses.

AMR was actually ahead of most business when it comes to social media—it had a written policy on social media; many businesses still do not. The AMR policy included the statement:

Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers or competitors.

Sounds pretty straightforward, huh? The NLRB is taking the position that such policies are too broad and put a “chill” on employees’ rights to discuss amongst themselves their working conditions. Such protected conversations used to happen around the water cooler; now they happen online with, potentially, the entire world listening in.

The AMR complaint is but the first step in a process of determining whether AMR did anything wrong. That process will have to take into account an earlier determination of the NLRB, made in a memorandum written less than a year before the AMR complaint, in which NLRB upheld a social media policy at Sears that prohibited:

Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects

Hmm, isn’t that about the same as the challenged AMR policy? Old laws like the NLRA definitely have to catch up with the new media. Until then, what’s a human-owned business to do? I think having a social media policy is better than not having one, but common sense should prevail, both as a policy—ask employees to use common sense in their complaints before a world-wide audience—and in constructing the policy —frame it carefully and with respect for your employees rights. Of course, having a knowledgeable advisor on your team wouldn’t hurt.

Veterans Day 2010. More Than a Legal Holiday, a Covenant

Out of all my posts on America’s ten legal holidays, this one is the most important and strikes closest to home. Even more so than the debt the nation owes our veterans, I owe two vets, my parents, for my existence and for inspiring my accomplishments.

Veterans Day, thankfully, is generally well-observed, with many personal and societal ceremonies and tributes, even if it is not a day-off for many. So, as legal holidays go, we seem to do right by Veterans Day, but I’m more concerned about the other 364 days. First, however, let’s consider the legal history.

Originally Armistice Day, the 11th day of the 11th month commemorated the 1918 Treaty of Versailles and the end of the Great War, the “war to end all wars” (was there ever a slogan you more wanted to be true?), and honored those who served in it. World War II forced us to admit the fallacy of the slogan and recognize the Great War as World War I. After the Korean “Conflict” (legal semantics for political purposes), Congress, in 1954, recognized the need to honor all who serve and gave the holiday its present name, Veterans Day.

Korean War Veterans Memorial

Congress did a major disservice to Veterans Day when, in 1971, it separated the holiday from its roots by moving the observance to the 4th Monday in October. The American people tolerated that for only a few years and the original date was restored in 1978. But to truly “remember our solemn obligations to our veterans” as President Obama asks, then Veterans Day must be a year-long commitment of this nation.

I mentioned my parents both served. They enlisted, as many Americans do, as recent high school graduates. I am particularly indebted to an unknown designer of recruiting posters. My mother marched into the recruiting office fully intending to join the Navy, but an Air Force poster showing young people at the Eiffel Tower changed her mind. The poster was prophetic. My parents would have their second date in Paris, France.

So it was that my siblings and I would grow-up on and around Air Force bases. So it also was that we would see Mom and Dad, as beneficiaries of the GI Bill, each earn a Bachelor’s and then a Master’s Degree. “The Servicemen’s Readjustment Act of 1944,” otherwise known as the GI Bill or the GI Bill of Rights, not only carried out the covenant between this nation and its defenders, it transformed my family as it transformed the nation. Homeownership and college lay beyond the grasp, both economically and psychologically, of much of America before the GI Bill; after, everything changed.

On a walk around Denver’s Fort Logan National Cemetery, I am humbled by the lives cut short by war, but also by the contributions of the many who served and came back to create even more blessings for our country. I imagine the young people, like my parents, who leveraged their country’s investment in them to transform America. Veterans raise expectations, not just for themselves, but for their children and their children’s children, and ultimately, for us all. I imagine the Fort Logan vets as entrepreneurs, teachers, police, firefighters, doctors, nurses, builders, engineers, and even lawyers. I imagine them as mothers and fathers. I see the lives you and I live not only as defended, but also enabled by their ideals.


Denver's Fort Logan National Cemetery

Our covenant with our vets, like all agreements, needs to be kept current. The GI Bill has been updated a few times and as recently as 2008, but still we struggle. One-third of America’s homeless are veterans. The economy facing discharged servicemen and women today is all too similar to that facing the World War I veterans whose political and literal battles with our government inspired that first GI Bill. If our investment in that “bonus army” gave birth to a transformed America, we should expect that doing our best for our modern heroes will prove more essential to our current economic reformations than any business bailout. Besides, it is the right thing to do.

I end this post with another, more personal, photo of a standard government-isssue tombstone. This one is not in a national cemetery, but in a small graveyard near the northwestern shore of Lake Buchanan in the Texas Hill Country. Uniformity connects in death as in life; even the casual observer will know that an American hero is buried here. I am honored to call this hero Dad and I miss him very much.

Copyright, the Internet, and Your Business: An American Pie Story.

Just because everyone does it, doesn’t make it right. Your mother or father told you so. I, likewise, have said as much to many human-owned business folk at my seminars on law and social media. The editors at Cooks Source apparently never understood that the message.

While the internet, and the social media it has spawned, may be new and rapidly evolving, the laws that apply to what we do there are old and generally slow to evolve. Copyright is at the top of that stack of old laws, though, incredibly, Cooks Source based its old-media print magazine, protected by copyright, on the erroneous position that copyright doesn't apply to material on the web.

The story begins when Cooks Source published an article about apple pies throughout history, an article it credited to author Monica Gaudio. The problem is Cook Source took the article from Ms. Gaudio’s blog without her permission. After Ms. Gaudio discovered this and complained to the magazine, she received a note from its editor stating in part (emphasis added):

But honestly Monica, the web is considered "public domain" and you should be happy we just didn't "lift" your whole article and put someone else's name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally.

I’m not going to dump on Cooks Source for what it did, though many, many have in what is now my new example of the internet’s swift, terrible, and sometimes hypocritical justice. The post The Day the Internet Threw a Righteous Hissyfit About Copyright and Pie, on the NPR Monkey See blog, drew me to this story, and I recommend it for those wanting more pie.

I'm not going to call out Cooks Source because many other businesses, perhaps even yours, do the same thing, though perhaps not so flagrantly. They do it whenever they grab a photo, a video, a song, or some text from one site and post it on another.

It’s easy to do and everyone does it (isn’t that the essence of Cooks Source response?), but that doesn’t make it right.

Sometimes, material on the web may actually be “public domain,” but most likely the material is subject to legal protection. Sharing information and building connections are the reasons the social media have enjoyed tremendous growth, so some authors give advance permission to copy and re-post material (like I do--see the Creative Commons license at the bottom of the page), so long as the work is attributed to the author, and, umm, no matter how badly it needs editing, it is unchanged.

Then there is the Fair Use doctrine, which is a part of copyright law that requires changing or transforming copyrighted materials, such as in commentary, criticism, or parody. Unfortunately, the line between what is and what is not “fair use” is not easily drawn, and, as such, is not a fight most businesses should want to pick other than in defense of core part of the business. Marketing by social media is not core business for any of my clients.

So what should your business do if it wants to copy material from the internet, for use in social media or otherwise? Don’t—instead create your own original work, it’s more interesting and valuable to your reader (although ownership of original work can hinge on whether an employee or independent contractor created it for you—that’s the Work-for-Hire doctrine, which will have to be the subject of a future post). If you insist on using another’s photos, songs, videos or text (other than limited quotations), check the copyright and ask for consent when required. It's legal and easy as pie.