Friday, August 10, 2012

Mass High Court Recognizes Judicial Deliberative Privilege

The Supreme Judicial Court of Massachusetts in In the Matter of the Enforcement of a Subpoena formally recognized a judicial deliberative privilege rooted, in part, in state constitutional judicial independence and separation of powers.

The move simply puts a formal judicial stamp of approval on a privilege already recognized in other states and the federal system, and supported by Massachusetts common law.  As the court said, "Such a privilege is deeply rooted in our common-law and constitutional jurisprudence and in the precedents of the United States Supreme Court and the courts of our sister States."

The court said the privilege applied to quash a subpoena issued by the Massachusets Commission on Judicial Conduct in relation to an investigation of allegations of bias against a Massachusetts judge.  But the court also said that the Commission might issue a better tailored subpoena that would survive a motion to quash based on the privilege.

The court rooted the privilege in part on two state constitutional provisions, both requiring, in different ways, an independent and impartial judiciary.  The first, Article 29 of the Massachusetts Declaration of Rights, reads:

It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.  It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.  It is, therefore, not only the best policy, but for the security of the right of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.

The second, Article 30 of the Declaration of Rights, referenced in a footnote in the opinion, reads:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men.

(Article 30 is part of Madison's survey of state separation-of-powers provisions in Federalist 47.  Madison writes that Article 30 "corresponds precisely with the [strict separation of powers] doctrine of Montesquieu," but also that "[i]n the very Constitution to which it is prefixed, a partial mixture of powers has been admitted.")

The court said in the footnote that "[t]he circumstances of this case raise these very [separation-of-powers] concerns," because the complaint against the judge was initiated by an executive branch official (even though the Commission itself is formally a judicial body).


August 10, 2012 in Comparative Constitutionalism, Courts and Judging, News, Separation of Powers, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, August 9, 2012

Minnesota Supreme Court Upholds Ban on Falsely Accusing Police, Tees Case for Supreme Court

A sharply divided (4-3) Minnesota Supreme Court ruled in State of Minnesota v. Crawley that the Minnesota ban on falsely accusing police officers did not violate the First Amendment.

The ruling is in tension with a 2005 case in the Ninth Circuit, Chaker v. Crogan.  Between the two rulings and the split on the Minnesota court, the case is a good candidate for Supreme Court review.

The ruling narrowly construed Minnesota's ban in order to save it--ruling that the ban must be interpreted as a ban on unprotected defamatory speech.  More than anything, it was that narrow construction--or, rather, the court's authority to so construe or rewrite the statute--that divided the court.

The ruling sends the case back to the trial court for retrial under the newly construed law. 

Minnesota's law reads:

(a) Whoever informs, or causes information to be communicated to, a peace officer, whose responsibilities include investigating or reporting police misconduct, that a peace officer . . . has committed an act of police misconduct, knowing that the information is false, is guilty of a crime and may be sentenced as follows . . . .

Minn. Stat. Sec. 609.505, subd. 2.

The court held that this was, indeed, a content-based regulation on speech, ordinarily subject to strict scrutiny under the First Amendment.  But it went on to read the statute narrowly, as a category of unprotected speech, defamation, in order to avoid ruling it unconstitutional.  (The court said that "[i]t is clear that, as written, [the law] is overly broad because it punishes a substantial amount of protected speech in addition to unprotected speech."  Op. at 15.)  

This required some creative reading--even re-writing--to limit this very broad prohibition to mere defamation.  Minnesota defamation law has four elements:

  1. The statement must be communicated to someone other than the plaintiff;
  2. The statement is false;
  3. The statement tends to harm the plaintiff's reputation; and
  4. The recipient of the false statement reasonably understands it to refer to a specific individual.

The court ruled that the statute failed to satisfy the first and fourth elements, because it didn't require that the statement be communicated to someone other than the plaintiff and because it did not require the statement to be of and concerning a specific individual.

But to avoid an over-breadth problem, the court re-read the statute (or re-wrote the statute) to require that the state prove that a defendant had informed a peace officer of misconduct by another officer and that the officer receiving the information reasonably understood it to refer to a specific individual.  (The statute as written satisfied the second and third elements of defamation.  As to the second, it required knowing falsity.  As to the third, the statute satisfied the requirement for defamation per se by affecting an officer "in his business, trade, profession, office or calling.")

The court said that its move to re-read (and thus save) the law was sanctioned by the Supreme Court in both Chaplinsky (defering to a state authoritative construction of a statute to reach only unprotected fighting words) and R.A.V. (same, although the Supreme Court overturned the statute because it nevertheless discriminated based on the content and viewpoint of speech within that category of unprotected speech).  (The latter case, of course, came out of Minnesota.)

The court ruled that even as re-read the statute discriminated based on content within the category of defamation--because it applied only to defamation per se that alleged an act of misconduct by an officer.  But the court said that the statute met two exceptions set out in R.A.V.--that it regulated speech in order to address a secondary effect of the speech, independent of the content (here, the cost of investigating allegations of misconduct); and that the content-based-ness of the law created no realistic possibility that official suppression of ideas was at foot.

The court rejected the Ninth Circuit's approach in Chaker v. Crogan.  In that case, the Ninth Circuit ruled that a similar statute was invalid as viewpoint discrimination, because it prohibited only knowingly false statements complaining of officer conduct, and not knowingly false statements supporting an officer.  The Minnesota court said that the Ninth Circuit failed to analyze R.A.V.'s exceptions and based its analysis on "knowingly false speech" (not defamation)--a category, the court said, "since questioned by federal appellate courts in more recent decisions."  Op. at 4.

The dissent, penned by Justice David Stras, argued that the court exceeded its authority in re-writing the statute.  Instead, the court should have taken the statute as written.  As written, Justice Stras cited Alvarez (the recent Stolen Valor Act case) and said that the majority of Justice on the Supreme Court concluded that knowing falsehoods are not categorically unprotected under the First Amendment.  More: the Minnesota law creates a chilling effect on speech critical of the government--exactly the kind of speech that the First Amendment is designed to protect.  Finally, Justice Stras argued that this content-based restriction did not satisfy strict scrutiny and therefore must fail.


August 9, 2012 in Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 8, 2012

Ninth Circuit Says No Waiver of Sovereign Immunity in Case Challenging TSP

In the latest and perhaps last chapter of the Al-Haramain case, the Ninth Circuit ruled that the government did not unequivocally waive sovereign immunity through the Foreign Intelligence Surveillance Act civil liability provision, ending the plaintiffs' case challenging the government's terrorist surveillance program.

As the court said, "[t]his case effectively brings to an end the plaintiffs' ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization."  Op. at 8784.

Recall that the plaintiffs sued under the FISA's civil liability provision for damages resulting from the government's surveillance of them through the TSP.  Most recently, the district court ruled that the state secrets privilege did not foreclose the plaintiffs' suit--that "FISA preempts or displaces the state secrets privilege . . . in cases within the reach of its provisions"--and that the government implicitly waived sovereign immunity through FISA.  The district court ruling would have allowed the case to move forward.

But the Ninth Circuit stopped it.  The court ruled that the government did not unequivocally waive sovereign immunity through the FISA civil damages provision, and therefore the plaintiffs could not sue for damages from the government.

The FISA civil damages provision, 50 U.S.C. Sec. 1810, reads,

An aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation . . . .

For the court, the key missing phrase was "the United States" (as in "against the United States" or "the United States shall be liable")--a mainstay of statutes in which the government unequivocally waived sovereign immunity.  Without such an unequivocal waiver, the government cannot be sued for damages.

Even with the government off the hook, though, the plaintiffs still could have proceeded against FBI Director Mueller, another defendant in the action (and a "person" under 50 U.S.C. Sec. 1810).  But the court said that the plaintiffs "never vigorously pursued its claim against Mueller" and dismissed it.  Op. at 8797.

The case almost certainly puts an end to the plaintiffs' litigation efforts to hold the government responsible for the TSP.


August 8, 2012 in Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets, War Powers | Permalink | Comments (1) | TrackBack (0)

UMKC Symposium Explores the School Speech Cases--From Those Who Were There

The University of Missouri-Kansas City School of Law and the UMKC Law Review will host a symposium on September 20-21, 2012, titled 40 Years of Landmark School Speech Cases: Through the Eyes of Those Who Were There.  This promises to be a fascinating event.  For registration, visit  More information below:



August 8, 2012 in Conferences, First Amendment, News, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Missouri State Constitution Amended to Include "Right to Pray"

425px-Alexandre_Couder_-_Woman_Kneeling_in_Prayer_-_Walters_371369Amendment 2, the so-called "prayer amendment" to the Missouri state constitution passed by a hefty margin in yesterday's election.  

The Missouri constitution Article I, section 5, was amended to include this language:

  1. that to secure a citizen's right to acknowledge Almighty God according to the dictates of his or her own conscience, neither the state nor any of its political subdivisions shall establish any official religion, nor shall a citizen's right to pray or express his or her religious beliefs be infringed; that the state shall not coerce any person to participate in any prayer or other religious activity, but shall ensure that any person shall have the right to pray individually or corporately in a private or public setting so long as such prayer does not result in disturbance of the peace or disruption of a public meeting or assembly; that citizens as well as elected officials and employees of the state of Missouri and its political subdivisions shall have the right to pray on government premises and public property so long as such prayers abide within the same parameters placed upon any other free speech under similar circumstances; that the General Assembly and the governing bodies of political subdivisions may extend to ministers, clergypersons, and other individuals the privilege to offer invocations or other prayers at meetings or sessions of the General Assembly or governing bodies; that students may express their beliefs about religion in written and oral assignments free from discrimination based on the religious content of their work; that no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs; that the state shall ensure public school students their right to free exercise of religious expression without interference, as long as such prayer or other expression is private and voluntary,whether individually or corporately, and in a manner that is not disruptive and as long as such prayers or expressions abide within the same parameters placed upon any other free speech under similar circumstances; and, to emphasize the right to free exercise of religious expression, that all free public schools receiving state appropriations shall display, in a conspicuous and legible manner, the text of the Bill of Rights of the Constitution of the United States; but this section shall not be construed to expand the rights of prisoners in stateor local custody beyond those afforded by the laws of the United States . . . .

Whether the Missouri Amendment 2 conflicts with First Amendment doctrine is uncertain, however, it does seem that it may provide students greater rights to "opt-out" of curriculum.  It may also prompt Establishment Clause challenges should the state take steps to "ensure" prayer at public events.

[image: Alexandre Couder, Woman Kneeling in Prayer, 1800s, via]

August 8, 2012 in Current Affairs, First Amendment, Religion, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Federal Anti-Military Protest Statute Signed by Obama

The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, signed by President Obama (video below) contains as Title VI provisions prohibiting the disruption of military funerals.  It provides:

For any funeral of a member or former member of the Armed Forces that is not located at a cemetery under the control of the National Cemetery Administration or part of Arlington National Cemetery, it shall be unlawful for any person to engage in an activity during the period beginning 120 minutes before and ending 120 minutes after such funeral, any part of which activity--

(1)(A) takes place within the boundaries of the location of such funeral or takes place within 300 feet of the point of the intersection between-- (i) the boundary of the location of such funeral; and(ii) a road, pathway, or other route of ingress to or egress from the location of such funeral; and

(B) includes any individual willfully making or assisting in the making of any noise or diversion--(i) that is not part of such funeral and that disturbs or tends to disturb the peace or good order of such funeral; and (ii) with the intent of disturbing the peace or good order of such funeral;

(2)(A) is within 500 feet of the boundary of the location of such funeral; and

(B) includes any individual--(i) willfully and without proper authorization impeding or tending to impede the access to or egress from such location; and (ii) with the intent to impede the access to or egress from such location; or

(3) is on or near the boundary of the residence, home, or domicile of any surviving member of the deceased person's immediate family and includes any individual willfully making or assisting in the making of any noise or diversion--
(A) that disturbs or tends to disturb the peace of the persons located at such location; and
(B) with the intent of disturbing such peace




The Circuit courts have been less than clear regarding First Amendment challenges to similar state statutes and local ordinances prohibiting funeral protests. 

The United States Supreme Court, in Snyder v. Phelps held that the First Amendment barred damages for intentional infliction of emotional distress caused by a funeral protest.  Interestingly, the new federal statute has both a criminal sanction and private cause of action, as well as a rebuttable presumption that any violation was committed "willfully."  

While protests at military funerals are not a widespread practice, it has become a frequent practice by a small religious group, and if the members' past practices are any indication, a First Amendment challenge to the statute is likely.


August 8, 2012 in Current Affairs, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 7, 2012

Nebraska Court Overturns Campaign Finance Law, Stretches Doctrine

The Nebraska Supreme Court last week in State of Nebraska ex rel. Bruning v. Gale ruled that Nebraska's public campaign finance law violated the First Amendment.

The ruling extends and stretches the Supreme Court's rulings in Davis v. FEC and Arizona Free Enterprise Fund v. Bennett.  (We also posted on Bennett here.)  It also forecloses yet one more policy option for encouraging participation in a public campaign finance system and to reduce the dramatic disparaties in spending in certain elections.

Nebraska's law, the Campaign Finance Limitation Act (CFLA), provides public financing for participating candidates in exchange for those candidates' agreement to limit their spending in a particular election.  But the CFLA doesn't start with a state block grant for participating candidates.  Instead, the CFLA requires participating candidates to raise 25% of the spending cap on their own before the public financing system kicks in.  Then, after a participating candidate raises 25% of the spending cap, that participating candidate receives a state grant in the amount of the difference between the spending cap and their non-participating opponent's estimated or actual expenditures.

An example: If the public financing spending cap for an election for a particular office is $100,000.00, a participating candidate has to raise $25,000.00 on his or her own.  Now suppose that candidate's non-participating opponent either estimates or actually spends $120,000.00.  The participating candidate receives $20,000.00 from the state (the difference between the spending cap and the estimated or actual expenditures of the non-participating opponent).  That leaves the participating candidate with $45,000.00 total.  The participating candidate can continue to raise money up to $100,000.00--that is, another $55,000.00--on his or her own.  Thus the CFLA provided only $20,000.00 to the participating candidate--an amount determined by the estimated or actual expenditures of the non-participating candidate, to be sure, but not an amount that equalizes expenditures in any meaningful sense or provides the participating candidate with much of a tail wind.

One  more feature of the Act: The candidates have to determine whether to participate within 10 days after they form a candidate committee.  This means that a non-participating candidate has to indicate his or her intention to exceed the CFLA cap (that is, not to participate) before he or she knows whether an opponent will participate.

The court ruled that the scheme violated the First Amendment.  Following Bennett, the court said that the state's interests in ensuring elections free of corruption or the appearance of corruption, providing the electorate with information, and gathering data to detect violations of the CFLA were not compelling.  And the court said that the Act wasn't narrowly tailored (largely because there wasn't a compelling interest).  

The court also ruled that the provision at issue (described above) was entwined enough with other provisions of the CFRA that the whole Act failed--that is, that the provision at issue was not severable.

But the court's ruling misses a threshold issue: whether the CFRA impinges on non-participating candidates' speech in the first instance.  There's a key difference between the CFRA and the scheme in Bennett and Davis (upon which Bennett relies): under the CFRA, the non-participating candidate's level of speech is determined independently of the participating candidate's speech.

In Bennett, the Supreme Court ruled that Arizona's scheme infringed on a non-participating candidate's free speech, because that scheme provided a dollar-for-dollar match from the public fisc for a participating candidate when a non-participating candidate exceeded the statutory cap on spending.  Bennett relied on Davis for this result.  In Davis, the Court ruled that the "Millionaire's Amendment" infringed on an independently-financed candidate's speech, because that speech triggered asymmetrical contribution limits (allowing a non-independently-financed candidate to raise more in individual contributions) when it exceeded a certain level.

The free speech threshold in both Bennett and Davis was that a non-participating candidate's additional speech triggered an asymmetrical system to the benefit of the participating candidate.  In other words, the non-participating candidate--at the time he or she decided to spend that additional dollar that put his or her campaign over the statutory limit--had to decide to speak more (and thus trigger the asymmetrical benefit to his or her opponent), or not.  The Court in Bennett and Davis said that this decision infringed on free speech.

But that's not at all how the CFRA operates.  The CFRA, by the Nebraska court's own reckoning, requires a candidate to elect to exceed the cap before he or she knows whether his or her opponent will participate.  This is not the same kind of infringement on free speech that concerned the Court in Bennett and Davis.  Indeed, this is no infringement on free speech at all: the non-participating candidate makes the decision completely independently of his or her opponent's decision.

The Nebraska court skates right by this distinction.  It said only that under the CFRA, "public funds are disbursed to abiding candidates in response to the political speech of privately financed candidates."  This is true, of course, but it misses the core reason why the Supreme Court said that the schemes in Bennett and Davis involved free speech in the first place--because the non-participating candidate had to choose between marginally more speech (and providing a benefit to his or her opponent), or not.

More: The CFRA plainly does not equalize the spending and contribution playing fields the way that the schemes in Bennett and Davis sought to do.  As illustrated above, the CFRA likely provides just a fraction of additional funding to a participating candidate, and requires the participating candidate to come up with the 25% in the first place (rather than starting with a state grant, as other public financing schemes do).  The court skates right by this, too, focusing instead on the fact that the participating candidate's award from the state is keyed (in any way) to the non-participating candidate's expenditures.  Again, this ignores the reason why the Supreme Court said that the schemes in Bennett and Davis impinged on speech.

The ruling stretches the logic of Bennett and Davis well beyond its breaking point.  In so doing, it also limits yet one more way that public financing systems can seek to address the gross disparities in spending in certain elections--at least in Nebraska.  

So for now, the lesson in Nebraska (and any court following its lead) is this: The First Amendment prohibits a public campaign finance scheme from keying the state grant to a non-participating opponent's expenditures in any way.


August 7, 2012 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, August 6, 2012

Sixth Circuit Overturns Ban on Medicaid Provider Campaign Contributions

A three-juge panel of the Sixth Circuit ruled in Lavin v. Husted that Ohio's law making it a crime for state Attorney-General or county-prosecutor candidates to accept campaign contributions from Medicaid providers violated the First Amendment.  The court held that the law wasn't "closely drawn" to meet a "sufficiently important interest," Buckley v. Valeo, because the state didn't sufficiently support its stated interest in preventing corruption and because the law swept too broadly.

The case only says that there are some teeth in the First Amendment jurisprudence involving campaign contributions--the case says nothing about restrictions on expenditures--and that a government seeking to restrict contributions has to do some homework in tailoring its law.  Still, the case leaves plenty of room for the government to regulate contributions, just so long as the government demonstrates its problem with corruption and appropriately tailors its law to meet that problem.

Ohio Revised Code Section 3599.45 prohibits a candidate for the office of attorney general or county prosecutor from knowingly accepting any contribution from a Medicaid provider or any person with an ownership interest in a Medicaid provider.  The state justified the ban based on its interest in preventing corruption--that is, preventing an attorney general or county prosecutor from using a campaign contribution as a factor in deciding whether to prosecute for Medicaid fraud.

The Sixth Circuit ruled that Ohio didn't sufficiently support its interest in preventing corruption, and that the ban swept too broadly.  As to the former, the court ruled that Ohio simply recited its interest in preventing corruption, but failed to demonstrate its interest, as required by Buckley.  (In fact, the balance of the evidence in the case only suggested the opposite--that Ohio had no problem of selective prosecution for Medicaid fraud based on campaign contributions.)  The court contrasted Ohio's ban with Connecticut's ban on contributions by state contractors to candidates for state offices--a ban that the Second Circuit upheld in Green Party of Connecticut v. Garfield, based on Connecticut's demonstrated history of bribes and kick-backs involving state contractors.

As to the latter, the court said that the ban applied to all Medicaid providers and persons with an ownership interest in a Medicaid provider, even though only .003% of them were implicated in Medicaid fraud in a recent year.  The court wrote that "[i]t is not hard to imagine what a less restrictive ban might look like" and held that this sweeping ban was not sufficiently tailored to meet Ohio's stated (but, as above, not sufficiently demonstrated) interest in preventing corruption.


August 6, 2012 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (2) | TrackBack (0)

Sunday, August 5, 2012

Sixth Circuit Says Pastors Lack Standing to Challenge Hate Crime Law

A three-judge panel of the Sixth Circuit ruled in Glenn v. Holder that a group of pastors who "say that homosexuality is 'forbidden by God'" lacked standing to challenge the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act.

The Act makes it a crime to batter a person because of the person's religion, national origin, gender, sexual orientation, gender identity, or disability.  18 U.S.C. Sec. 249(a)(2)(A).  The plaintiffs claimed that the expression and practice of their anti-gay religious beliefs would lead to federal prosecution under the Act in violation of their First Amendment rights.

The court rejected the claim for lack of standing, saying that "this lawsuit is really a political statement against the Hate Crimes Act."  Op. at 1.  The court:

Quite simply, we agree with the district court that Plaintiffs have not established standing because they have not alleged any actual intent to "willfully cause[] bodily injury," the conduct proscribed by the Act.

Op. at 5.  The court noted that the Act didn't prohibit the plaintiff's proposed speech and concluded that the plaintiffs therefore couldn't say just what they might do that would subject them to prosecution.  The court also rejected for similar reasons the plaintiffs' theory that they might be subject to prosecution for aiding or abetting a violation of the Act and the plaintiffs' theory that the Act chills their speech.

Judge Stranch concurred in full but wrote separately to say why the plaintiffs' claims based on legislative history and statements by federal prosecutors failed to support their chilled-speech argument.


August 5, 2012 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)