August 2, 2012
Second Circuit Upholds Arrests at 2004 Republican National Convention in NYC
Affirming the district judge's grant of summary judgment in favor of the city, the Second Circuit's opinion today in Marcavage v. City of New York rejects the claim of two participants at the 2004 Republican National Convention protests that their First and Fourth Amendment rights were violated.
The controversy involves an often-called "free speech zone" used by law enforcement to designate areas for protest. As the Second Circuit opinion explains, the "NYPD implemented a three-zone system" outside of Madison Square Garden where the convention was held: "a demonstration area, a frozen area (with no pedestrian traffic), and a no-demonstration area." The plaintiffs were "standing in the no-demonstration zone between 32nd and 33rd Streets, holding anti-abortion signs--one sign was four by six feet, the other was three by five." When told to move into the demonstration zone, the protesters objected that this was not within the sight and sound of the Convention attendees and "they did not want to be in the demonstration zone lumped with other demonstrators." According to the Second Circuit, the protesters were "ordered to leave 17 times by three different police officers before they were informed that they were blocking traffic and placed under arrest." They were both charged with disorderly conduct; one with resisting arrest; and all charges were ultimately dismissed.
Relying upon Ward v. Rock Against Racism, 491 U.S. 781, 790-91 (1989), the panel analyzed whether plaintiffs were engaged in First Amendment protected activity in a traditional public forum, and if the restriction on speech was unrelated to content. The panel easily found that the first two prongs were satisfied, and noted that the plaintiffs conceded that the restraint on their expressive activity was content-neutral. Thus, the restriction needed to be narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information.
The panel emphasized the security concerns, invoking terrorism, and finding that NYC had significant, if not compelling, interests. Further, while the NYPD could have made different judgments: "“narrowly tailored”does not mean the “least restrictive or least intrusive means" and "simply because there is some imaginable alternative that might be less burdensome on speech" does not render the restriction invalid." As for the alternative channels, the panel described it as "a demonstration zone spanning the width of Eighth Avenue, starting at the southwest corner of the Garden, one avenue from the primary entrance to the Garden. The zone was equipped with a stage and sound amplification equipment, which all the protesters (including Plaintiffs) were free to use." This zone need not be within the "sight and sound" of the intended audience, as a constitutional matter.
On the Fourth Amendment claim, the panel interestingly relied on an audio recording made by the plaintiffs themselves:
that recording dooms their assertion . . . . even viewed in the light most favorable to Plaintiffs, the audio recording shows indisputably that they were neither courteous nor compliant. Plaintiffs were hostile and non-compliant; in effect, they courted arrest.
With this, the panel found no need to extensively discuss the district judge's grant of summary judgment on the Fourth Amendment issue.
The Second Circuit's opinion is yet another one upholding free-speech zones for political protest, certainly to be a law enforcement practice yet again in the upcoming national political conventions.
August 1, 2012
Sixth Circuit Rules on Median Creche
The Sixth Circuit ruled today in Satawa v. Macomb County Road Commission that the Commission's rejection of a permit for a private display of a creche in the median of a public highway violated free speech and equal protection, but not the Establishment Clause.
The ruling sends the case back to the trial court to proceed on the free speech and equal protection issues. But unless something changes as the case unfolds beyond summary judgment, the ruling also probably means that the creche can stay.
The case arose out of a family's year-after-year display, around Christmas, of a creche in the median of a public road in Macomb County, Michigan. Eventually, the Freedom from Religion Foundation complained, and the Commission asked the family to remove the display. When the family applied for a permit for the display the following year, the Commission declined. The Highway Engineer sent a letter to the family explaining that the denial was based on the County's concern, after consulting an attorney, that the display would violate the Establishment Clause.
The family sued, and the County changed its story. After the case was filed, the Engineer said that the Commission denied the permit for safety reasons. He even said that he consulted with Commission members on the safety questions outside of formal meetings. (The court said that these statements weren't credible, though: the Engineer's precise stated safety reasons changed; and the Engineer's meetings were disputed.) The district court granted summary judgment for the Commission on all of the plaintiffs' claims--free speech, equal protection, and Establishment Clause.
The Sixth Circuit ruled that the permit denial violated free speech and equal protection, but not the Establishment Clause. As to speech, the panel first determined the forum--a public forum. The panel explained:
The Mound Road median is difficult to define because it has objective characteristics typical of both public and non-public fora. Like a public park . . . the median is landscaped and has benches for people to use. It also contains "memorial trees and brass memorial plaques affixed to rocks." These plaques are discernable only from the median--they are too small to be read by a passing motorist. Across Chicago Road, in a similar median, is the gazebo, erected by the City of Warren Historical Society, which contains more space for people to assemble.
On the other hand, the median is in the middle of a busy eight-lane road, with a fifty-mile-per-hour speed limit. There does not appear to be any special parking area for the median, nor are there dedicated public restrooms. However, there is pedestrian access from a sidewalk that crosses the median and connects the two sides of Mount Road.
On balance, we hold that the Mound Road median is a traditional public forum. Residents of Warren apparently use the median for a variety of expressive purposes, such as the display of farm equipment (meant to show the historical nature of the village) and memorial plaques. The median, moreover, invites visitors. It contains park benches and is accessible by sidewalk. . . . A public sidewalk allows access to the median, and public benches populate it.
Op. at 15-16. The court said that the Commission's religious motivation in rejecting the permit triggered strict scrutiny; and the Commission's interest in avoiding an Establishment Clause violation was not compelling. Why? Because granting the permit and allowing the display would not have created an Establishment Clause problem in the first place. ("Where, as here, '[t]he State did not sponsor [the religious] expression, the expression was made on government property that had been opened to the public for speech, and permission was requested through the same application process and on the same terms required of other private groups,' the government would not violate the Establishment Clause by granting the permit." Op. at 22-23 (quoting Capitol Square Review Board v. Pinette)).
As to equal protection, the court ruled that the Commission treated the private, fully protected religious display differently than other displays on the median; that the disparate treatment triggered strict scrutiny (because of the protected religious speech); and that the Commission couldn't meet this standard (for the same reasons it couldn't meet it under free speech analysis).
Finally, as the the Establishment Clause, the court ruled that the Commission denied the permit in order to comply with the Constitution--the very same Establishment Clause that the family claimed it violated. This, the court said, was a secular purpose having nothing to do with animosity toward religion.
HB2036 Update: Ninth Circuit Enjoins Arizona Abortion Law
In a brief Order today, a panel of the Ninth Circuit has issued an emergency stay of Arizona's restrictive abortion law, despite a federal district judge's holding yesterday that the law was constitutional.
In the Isaacson v. Horne order, the Ninth Circuit stated:
The court enjoins enforcement of the provisions of Arizona House Bill 2036 that place restrictions upon and criminalize the performance of abortions from 20 weeks gestational age, pending appeal. 2012 Ariz. Legis. Serv. 250 (H.B. 2036) (West) (to be codified as Ariz. Rev. Stat. § 36-2159);
The Ninth Circuit also expedited the briefing and oral argument schedule.
Federal District Judge Declares Virginia's Residency Requirements for Petition Circulators Unconstitutional
Too late for Republican Presidential Candidates Perry, Gingrich, Huntsman, and Santorum - - - who challenged the Virginia regulation in January - - - Federal District Judge John Gibney has declared Virginia's restrictions on petition circulators unconstitutional. Recall that the candidates had challenged the regulations requiring petition circulators to be state residents, but because the candidates had waited until they were disqualified from being on the ballot, Judge Gibney found their claim was barred by laches and the Fourth Circuit agreed.
Now, revisiting the substance of the argument in the opinion in Libertarian Party of Virginia v. Judd, Judge Gibney easily concluded that the plaintiffs had standing and almost as easily concluded that the Virginia provision violated the First Amendment.
Judge Gibney found that the prohibition of nonresidents from circulating petitions to collect signatures and thus satisfy the requirement of a petition with a minimum number of signatures for candidates to appear on the ballot was directed at political speech. While the judge found the state interests of preventing fraud and protecting the integrity of elections compelling, he concluded that the state residency restriction was not narrowly tailored. There was no connection between in-state and out-of-state residents with regard to fraud. Moreover, the state's argument that it needed to have a subpoena power was insufficient; the state presented no evidence that it was unable to prosecute a fraudulent circulator because he or she was a non-resident.
As Judge Gibney had intimated earlier, if Perry, Gingrich, Huntsman, and Santorum had challenged the provision in a timely fashion, they would have been successful - - - and perhaps on the ballot in Virginia.
Fifth Circuit to Hear Immigration Housing Ordinance En Banc
The Fifth Circuit has decided to hear Villas at Parkside Partners v. City of Farmers Branch Texas en banc. Recall that the Fifth Circuit panel affirmed the district judge's conclusion finding a town ordinance unconstitutional pursuant to the Supremacy Clause, as preempted by federal law. The ordinance, reproduced as a 15 page appendix to the majority opinion, is rather detailed, but essentially requires tenants to have licenses that demonstrated their citizenship or legal status.
As we noted, the then-forthcoming holding on SB1070 in Arizona v. United States could certainly effect the preemption analysis of the ordinance of Farmers Branch, Texas. However, the Court's opinion in Arizona v. United States would tend to support the panel opinion.
July 31, 2012
DOMA Held Unconstitutional - - - Yes, Again
In what is becoming a common occurence, a federal judge held section 3 of DOMA unconstitutional.
Today's opinion in Pedersen v. Office of Personnel Management, with BLAG (Bipartisan Legal Advisory Group of the House of Representatives) intervening to defend the law, is by Judge Vanessa Bryant of the United States District Court for the District of Connecticut.
Judge Bryant's thorough opinion, over 100 pages, treads by now familiar ground. Judge Bryant first rehearses the history ofthe Defense of Marriage Act (DOMA), standing, and the (in)applicability of the Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972).
In applying Equal Protection doctrine to a classification based upon sexual orientation, the first task is to determine the level of scrutiny to be applied to sexual minorities. As Professor Julie Nice writes over at Jurist, this can put a court in a "dither" given the Supreme Court's "miminalism" on this issue.
But Judge Bryant attempted to be clear, both in her theoretical perspectives and doctrine. She first stated she "must not be tempted to tie conceptions of judicial restraint to historic notions of equality," but instead engage in a "rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles." (Opinion at 34-35). She then extensively applies the four common factors to determine whether a particular classification should be considered either a suspect or quasi-suspect class:
- (1) the history of invidious discrimination against the class burdened by the legislation;
- (2) whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society;
- (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members' control; and
- (4) the political power of the subject class.
Judge Bryant's opinion is especially worth reading on the "political powerlessness" prong in light of arguments regarding President Obama's opinions on sexual orientation. Having considered all four factors, the judge found that " homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny." She then quickly defaulted to another rationale: "However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny."
Thus, Judge Bryant applied rational basis scrutiny requiring a "legitimate interest" that is reasonably served by the statute. The legislative history of DOMA advanced four interests for the statute: "(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce governmental resources." In litigation, BLAG asserted five: 1) To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage; 2) To protect the public fisc; 3) To maintain consistency and uniformity with regard to eligibility for federal benefits; 4) To avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage; and 5) To recognize an institution designed to ensure that children have parents of both sexes. One by one, Judge Bryant considered the interests and their rational relationship to the statute, concluded that not one of them was sufficient.
Judge Bryant considers judicial review and the role of courts in a democracy at several points, and concludes:
"In sum, having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution."
Certainly this opinion will be appealed, as have the others, including three pending petitions in the United States Supreme Court. But with yet another federal judge finding DOMA unconstitutional, it would make a Supreme Court decision to the contrary look more and more problematical.
Arizona HB 2036: Federal Judge Upholds Restrictive Abortion Law
In a relatively brief opinion in Isaacson v. Horne, federal judge James Teilborg rejected constitutional challenges to Arizona House Bill 2036 (“H.B. 2036”), signed into law by the Governor in April 2012, restricting all abortions at 20 weeks of pregnancy or later, except in "medical emergency." The judge evaluated the legislative findings of "the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at [20 weeks] gestational age."
The opinion's reasoning largely rests on two extensive quotations. First, the judge quotes from Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879-80 (1992), regarding the definition of “medical emergency,” concluding that the Arizona statute is within the broad definition. Second, the judge relied on Gonzales v. Carhart, 550 U.S. 124 (2007) and its description of one type of procedure. The judge then credited the legislature's fetal pain rationale, finding that "by 7 weeks gestational age, pain sensors develop in the face of the unborn child and, by 20 weeks, sensory receptors develop all over the child’s body and the children have a full complement of pain receptors." The judge did add that as an additional legitimate interest, the "instance of complications is highest after twenty weeks of 20 gestation" supported the interest in the pregnant woman's health.
The Center for Reproductive Rights will undoubtedly appeal.