October 26, 2012
Sixth Circuit Rejects First Amendment Claim of Anti-Muslim Advertisers
In its opinion in American Freedom Defense Initiative v. Suburban Mobility for Regional Transportation (SMART), the Sixth Circuit upheld SMART's rejection of advertisements for city buses.
The potentional advertising group, American Freedom Defense Initiative, is indeed the same one whose advertisements on NYC subways caused controversy last month. The Sixth Circuit, unlike the district judge in New York, rejected the Intiative's First Amendment claim when it challenged the refusal to run its advertisements. In large part, the distinction between the two situations rests upon the policies of the transportation agencies.
SMART, a state transportation agency in Southern Michigan, does allow advertising on its vehicles, but its policy prohibits several categories of advertising including "political or political campaign advertising" and "advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons." SMART - - - wisely - - - rested its rejection on the political rationale. The advertisement that SMART had refused read: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com." Interestingly, to determine the meaning of "political," the court not only consulted the website in the advertisement but found confirmation in the language of American Freedom Defense Initiative's own complaint:
According to the complaint, AFDI “acts against the treason being committed by national, state, and local government officials . . . in their capitulation to the global jihad and Islamic supremacism.” Compl. ¶ 7. The complaint explains that AFDI “promotes its political objectives by, inter alia, sponsoring anti-jihad bus and billboard campaigns, which includes seeking advertising space on SMART vehicles.” Id. ¶ 8. By its own admission, therefore, AFDI sought to place advertisements on the SMART vehicle to “promote its political objectives.” Moreover, by denying the placement of the fatwa advertisement, AFDI alleges that SMART “denied Plaintiffs’ advertisement, and thus denied Plaintiffs access to a public forum to express their political and religious message.” Id. ¶ 21. AFDI understood its own advertisement to contain a political message; therefore, it would be reasonable for SMART to read the same advertisement and reach the same conclusion.
Doctrinally, SMART's ability to enforce a political exclusion rests upon the court's acceptance of the city buses as nonpublic forums. Yet there is some circularity here: SMART's "tight control" over the advertising space, as well as the fact that it "has banned political advertisements, speech that is the hallmark of a public forum" support the court's conclusion.
The panel recognized that there are close calls, and even suggested an advertisement that would not be political, but ultimately validated SMART's call as correct and consistent with its practices.
Seventh Circuit Affirms Funding of Planned Parenthood, but Rejects Constitutional Claims
In its opinion in Planned Parenthood of Indiana v. Commissioner of Indiana Department of Health, the Seventh Circuit this week affirmed a district judge's injunction against the state's defunding of Planned Parenthood.
However, the Seventh Circuit upheld the district court on the statutory claim under the Medicaid Act's "free choice of provider" provision, and rejected the constitutional claims of preemption and unconstitutional conditions.
On the preemption claim, the Seventh Circuit panel reversed the district judge's finding that the federal block-grant program for the diagnosis and monitoring of sexually transmitted diseases conflicted with Indiana's defunding of Planned Parenthood in contravention of the Supremacy Clause. The panel applied a presumption in favor of a lack of preemption and found no conflicts, even as implied.
While the district judge had not reached the unconstitutional conditions claim - - - having granted relief on the other claims - - - the Seventh Circuit stated that "it makes sense" to address it. The panel focused on the constitutional right at stake, reasoning that it is a "right against coercive government burdens," but this "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Thus, the panel concluded that the unconstitutional conditions claim was not likely to succeed on the merits: given that "the government’s refusal to subsidize abortion does not unduly burden a woman’s right to obtain an abortion, then Indiana’s ban on public funding of abortion providers—even for unrelated services—cannot indirectly burden a woman’s right to obtain an abortion."
Thus, although the Seventh Circuit opinion's result requires the funding of Planned Parenthood, the court foreclosed constitutional claims.
Daily Read: Obama on Roe v. Wade's Future
In an interview in Rolling Stone, President Obama responds to a query about the future of the constitutional right to abortion.
Do you have any fear that Roe v. Wade could be overturned if the Republicans win the presidency and appoint another Supreme Court justice?
I don't think there's any doubt. Governor Romney has made clear that's his position. His running mate has made this one of the central principles of his public life. Typically, a president is going to have one or two Supreme Court nominees during the course of his presidency, and we know that the current Supreme Court has at least four members who would overturn Roe v. Wade. All it takes is one more for that to happen.
October 25, 2012
Plaintiff Can't Sue Supreme Court
Judge Rudolph Contreras (D.D.C.) reminded us this week in Harris v. United States Supreme Court that a federal district court has no power to review a decision of the Supreme Court.
Judge Contreras quoted Justice Jackson--"We are not final because we are infallible, but we are infallible only becuase we are final," Brown v. Allen (1953)--in dismissing a case brought by a disappointed basketball player who didn't make the cut for the Tulsa 66ers. The player first sued in the Northern District of Oklahoma and took his case all the way to the Supreme Court. Alas, the Court declined to hear his case.
So he naturally sued the Court itself in the D.C. district. No luck, wrote Judge Contreras: a district court has no power to review a decision of the Supreme Court.
Doe v. Reed: Moot at Last?
In what should be the final opinion in the extended saga of the quest for anonymity by "Protect Marriage" members and supporters, the Ninth Circuit declared the case moot.Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA), RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiatives. The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization. The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.
Subsequently, on remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes. The Ninth Circuit denied the request for an emergency stay last year.
Now, the Ninth Circuit panel unanimously finds the case moot. The panel discussed an exception to the mootness doctrine under a two-prong test: “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” The panel quickly found that prong one was not satisfied and therefore did not reach the second issue.
Concurring, Judge N.R. Smith disagreed on the mootness question, essentially holding that the matter was not moot because the court could attempt to at least narrow the dissemnination of the information. However, Judge Smith's conclusion on the merits was interwoven with the mootness arguments. He reasoned that Protect Marriage's "arguments regarding the merits of the burden on their First Amendment rights is incongruent with the mootness argument, because it discusses a burden caused by the government action of disclosing identities at all. Plaintiffs cannot have it both ways."
While Protect Marriage may file a petition for writ of certiorari, it seems highly unlikely Doe v. reed will be returning to the Supreme Court again.
Daily Read: Felon Disenfranchisement in Comparative Perspective
The current controversy in the UK over voting by persons who are presently incarcerated and the imminent US election again raise questions regarding the general US policy of disenfranchisement by persons convicted of felonies (even if not incarcerated), a topic we've previously addressed here and here.
Ruvi Ziegler's 2011 article, Legal Outlier, Again? US Felon Suffrage: Comparative and International Human Rights Perspectives, 29 Boston University International Law Journal 197, available on ssrn, situates the US practices and doctrine within international human rights and comparative constitutional law perspectives.
Ziegler concludes that defending the "rights of convicts is hardly a popular task. However,defending their right to vote means, inter alia, defending the substantivedemocratic legitimacy of criminal law, which labels certain community members as convicts by proscribing their acts and which sanctions the imposition of punishments. Convicts’ disenfranchisement is a hurdle on the path towards the democratic project’s successful completion. It can and should be removed."
This is worth a read for any scholar or student pondering the relationship between the fundamental right to vote and punishment.
Prisoner Voting?: UK Balks at European Court of Human Rights Opinion
"Prisoners are not getting the vote under this government," UK Prime Minister David Cameron said yesterday. This is despite the attorney general's statements earlier that day that the UK should comply with opinions from the European Court of Human Rights (ECHR) regarding the UK's blanket ban on prisoner voting. The ECHR in 2005 ruled in Hirst v. UK that the UK's bar on voting was too "blunt" of an instrument:
It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be.
In 2009, the ECHR expressed "serious concern" that the Hirst judgment had not been implemented.
And it seems that PM Cameron is voicing his opinion that Hirst will never be implemented - at least under his government.
October 24, 2012
Complaint Sufficiently Alleges Constitutional Violations Against University Officials
A three-judge panel of the Ninth Circuit ruled in OSU Student Alliance v. Ray that a conservative student newspaper at Oregon State sufficiently alleged constitutional claims against university officials after they removed the newspaper's distribution bins from around campus and limited the locations where the newspaper could replace the bins. The ruling reverses a lower court ruling dismissing the case, allows the plaintiffs to amend their complaint as to certain defendants, and means that the case will move forward on the merits.
The case arose when Oregon State officials removed distribution bins of the conservative Liberty newspaper, published by the Student Alliance. Officials did not similarly remove distribution bins of the official student newspaper, the Daily Barometer, or outside newspapers (like USAToday). Officials claimed that they were enforcing an unwritten policy prescribing the acceptable campus locations for outside newspaper distribution bins. Officials treated the Liberty as an outside newspaper, even though it has a student editorial staff, because its funding came almost exclusively from outside sources--donations and advertising. In contrast, the Daily Barometer received university funding through the student government. Officials said that this distinction explained why they treated Liberty bins differently than Daily Barometer bins, but it obviously didn't explain why it treated Liberty bins differently than USAToday bins.
The newspaper sued under 42 U.S.C. Sec. 1983, arguing that four university officials--the president, a vice-president, the vice-provost for student affairs, and the director of facilities services--violated their rights to free speech, due process, and equal protection. The district court dismissed the claims for injunctive and declaratory relief after the school changed its policy; and it dismissed the claims for damages because the plaintiffs didn't plead that any of the four defendants participated in the confiscation of the newsbins.
The Ninth Circuit reversed. It ruled that the plaintiffs sufficiently pleaded that the certain defendants "caused" a "deprivation of federal right" and remanded to allow the plaintiffs to replead as to others.
As to the deprivation, the court said that the OSU campus is "at least a designated public forum," that the unwritten "policy" left university officials with unbridled discretion (alone enough to doom the policy), and that any standard (identified only post hoc) that distinguished between on-campus and outside publications bore no relationship to the school's interest in reducing clutter around campus. "OSU's standardless policy cannot qualify as a valid time, place, and manner restriction." Op. at 12778. And the plaintiffs correctly pleaded that it was viewpoint discrimination.
The court also said that the plaintiffs sufficiently pleaded an equal protection violation, because they pleaded that the university treated them differently than a similarly situated newspaper in a way that trenched on a fundamental right (free speech). It also said that the plaintiffs adequately pleaded that the defendants removed their bins without prior notice in violation of due process.
As to causation, the court recognized that "[s]ome of the plaintiffs' claims raise thorny questions under Iqbal." Claims against the director of facilities management were easiest, because that official was directly involved in the confiscation and relocation policy. But the court said that claims against the president and vice-president (the director's supervisors) had to show the requisite intent under Iqbal. The court said that the plaintiffs sufficiently pleaded that the president and vice-president knew of the director's violations of free speech--that knowledge (and not specific intent) is the relevant state of mind required for a free speech violation. (Recall that the Supreme Court required the plaintiffs to plead specific intent for equal protection and free exercise violations in Iqbal.)
The court wrote that the complaint sufficiently tied the director of facilities to the due process violation--that he was responsible for the unwritten bin policy, and that the confiscation happened pursuant to the policy--but that it didn't sufficiently tie the president and vice-president to the policy.
As to the vice-provost, the court said that the complaint didn't sufficiently allege that he knew of the free speech violations and that he wasn't sufficiently tied to the due process violation.
The court remanded the case to allow the plaintiffs to amend their complaint to bring in the president and the vice-president on the due process claims and the vice-provost on any claims.
Judge Ikuta dissented in part, arguing that the majority's approach as to the president and vice-president "resurrects the very kind of supervisory liability that Iqbal interred."
October 24, 2012 in Cases and Case Materials, Equal Protection, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Recent Cases, Speech | Permalink | Comments (0) | TrackBack
Daily Read: Posner at Columbia Law School's Federalist Society Lecture
A "daily read" worth watching: Richard Posner (pictured) presented his lecture "How I Interpret Statutes and the Constitution" via video for Columbia Law Federalist Society's Madison Lecture Series on Judicial Engagement.
Posner speaks about originalism and living constitutionalism, proposing his own "middle-ground theory of interpretation that emphasizes common sense and analytic simplicity."
October 23, 2012
Supreme Court Rejects Application to Vacate Montana Campaign Finance Ruling
The Supreme Court today rejected an application to vacate the Ninth Circuit's stay of District Judge Lovell's earlier decision that Montana's low campaign contribution limits violated the First Amendment. (Thanks to Emily Phelps over at the Constitutional Accountability Center's Text and History Blog for the tip.) This latest ruling in Lair v. Bullock means that Montana's contribution limits will remain in place pending appeal to the Ninth Circuit and, in particular, through the election. All signs now point to a Ninth Circuit reversal of Judge Lovell's ruling that the contribution limits violated the First Amendment.
New York Court of Appeals Allows Distinctions Amongst Dance
In a divided opinion today, New York's highest court denied a tax exemption for an adult juice bar in In the Matter of 677 New Loudon v. State of NY Tax Appeals Tribunal. The juice bar, at which there are dance performances, argued that admission fees should not be taxed under the rules governing a "place of amusement in the state" but included in the exemption for "dramatic or musical arts performances." The majority rejected this contention in less than 5 pages.
Like the majority and the [Tax] Tribunal, I find this particular form of dance unedifying -- indeed, I am stuffy enough to find it distasteful. Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker. I would be appalled, however, if the State were to exact from Hustler a tax that the New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently "cultural and artistic." That sort of discrimination on the basis of content would surely be unconstitutional (see Arkansas Writers' Project, Inc. v Ragland, 481 US 221, 229-230 ). It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing.
It is easy to imagine the attorneys for the adult juice bar considering a petition for writ of certiorari to the United States Supreme Court raising First Amendment claims, although the constitutional status of dancing as expressive speech is not as firmly established as that of newspapers.
[image: Ernst Ludwig Kirchner: Hamburger Tänzerinnen, 1910 via]
Daily Read: Collins on Toobin on the Court
Here's an especially intriguing sample:
In The Oath you refer to Justice Clarence Thomas [pictured] as a “conservative intellectual path-breaker.” You mention this in the context of some of his First Amendment opinions. Of the 29 First Amendment free expression opinions rendered by the Roberts Court, however, Justice Thomas has authored only two majority opinions, neither of which was path-breaking. (See Reichle v. Howards, 2012 (8-0) and Washington State Grange v. Washington State Rep. Party, 2008 (7-2)).
In what sense, then, do you seem him as a First Amendment “path-breaker”? Which of his separate opinions do you see as point the path to future First Amendment precedents?
One of the many paradoxes of Justice Thomas’s tenure is that he has been influential without writing many important majority opinions. Indeed, it is difficult to think of a Justice who has been in the majority as often as Thomas for as long as Thomas and written so few important majority opinions. (Indeed, here’s an interesting exercise: What’s the most important majority opinion Thomas has written? Beats me.)
Still, I think Thomas’s concurrence in McIntyre v. Ohio Elections Commission and his dissent in Nixon v. Shrink Missouri Government PAC include themes that are clearly reflected in Justice Kennedy’s decision in Citizens United.
Collins and Toobin also discuss Roberts on affirmative action and the Court's work load. An interesting read!
October 22, 2012
Court Rejects Bagram Detainees' Habeas Claims
Judge John D. Bates (D.D.C.) dismissed the habeas corpus claims of detainees at Bagram Airfield (Afghanistan) last week in Al Maqaleh v. Gates. The ruling is the latest chapter in the detainees' quest to challenge their detentions by way of habeas in federal court, just as Guantanamo detainees won the right to challenge their detention by way of habeas in Boumediene v. Bush. The detainees may appeal, but their chances seem slim, at best, especially given the history of the case.
Recall that Judge Bates originally ruled that Bagram detainees enjoyed the privilege of habeas in 2009. Judge Bates wrote that with technology the courts could hear Bagram detainees' habeas claims just as easily as they could hear Guananamo detainees' claims, and that habeas claims wouldn't unduly disrupt the government's prosecution of the war. But the D.C. Circuit reversed, saying that Bagram was fundamentally different than Guantanamo. The D.C. Circuit ruled that Bagram was in an active war zone, that the government didn't have the kind of control over Bagram that it had over Guantanamo, and that habeas claims risked interfering with the government's prosecution of the war.
This latest case arose when the same Bagram detainees argued that certain developments at Bagram undermined the D.C. Circuit's ruling. In particular, the Bagram detainees argued that new evidence showed that the government intends to stay at Bagram indefinitely; that recent criminal trials at Bagram showed that practical obstacles to litigation are far less serious than the D.C. Circuit believed; that the government was attempting to avoid habeas jurisdiction by detaining prisoners at Bagram; and that procedures used to determine the detainees' status are unacceptable.
Judge Bates rejected these claims, in short disagreeing with the detainees' interpretation of their new evidence, or saying that their "new" evidence wasn't new at all--that it was fully available to the D.C. Circuit when the D.C. Circuit issued its earlier ruling.
Judge Bates also rejected the habeas claim in a companion case brought by a minor, Hamidullah v. Obama. Hamidullah argued that his age set him apart from the others, because habeas is "somewhat more robust" for minors. Judge Bates ruled that he failed to support this argument.
The case likely marks the end of the line for Bagram detainees. Even if they appeal, given the D.C. Circuit's ruling and Judge Bates's most recent ruling, they're likely to lose.
Daily Read: George McGovern on the Founders
George McGovern, former United States Senator and 1972 Presidential nominee, died yesterday at the age of 90.
McGovern was a paradigmatic voice for liberalism and his 2004 book, The Essential America: Our Founders and the Liberal Tradition makes the argument that the founding generation was steeped in liberal tradition. In a C-SPAN interview in 2004, McGovern stated that both the liberal and conservative traditions are important:
I think that liberalism has been so battered by its critics that people have almost become self-conscious about using the word. I don`t feel self-conscious about it because I think Thomas Jefferson was a liberal. Thomas Paine was a liberal. James Madison was a liberal. These early Founders, the ones who were really the deep thinkers, I think had a liberal streak through them. Now, they also had some conservative streaks. And I`m not against the conservative traditions. In fact, in my book, I say that the genius of American politics is the creative tension that exists between conservatism, on the one hand, and liberal on the other. My dad and mother lived and died as conservative Republicans. I had some pretty good arguments with them in later life, but I respect both of those traditions. And I don`t think people ought to be ashamed to say, I am a conservative, I am a liberal. I respect both traditions.
Asked to define liberal, McGovern stated:
A liberal in today`s world, and the definition has changed with the passage of time, but I would say a 20th century liberal or 21st century, now, liberal, is one who believes in a positive federal government that takes concrete measures that are in the interest of the ordinary citizen. A liberal doesn`t -- doesn`t sell out to the special interests. He or she seeks to serve the great American public.