Saturday, August 10, 2013
In Galloway v. Town of Greece (New York), the Second Circuit held that the town's practice of legislative prayer "impermissibly affiliated the town with a single creed, Christianity."
The Court granted the Town's peitition for writ of certiorari, and the Solicitor General has just filed the United States Government's brief supporting the Town.
At issue is an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature's employment of a chaplain to lead a legislative prayer. The majority opinion, authored by Chief Justice Burger, was seemingly not worried that the same chaplain had been employed for almost two decades, and relied upon the historical practice of legislative prayer, applying Lemon v. Kurtzman.
The Second Circuit in Town of Greece, however, looked at the content of the prayers and essentially found, as we phrased it here, "one invocation to Athena out of 130 is simply not sufficient" to meet the requirement of non-endorsement given that two-thirds of the prayers contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.”
Under the principles announced in Marsh, which relied heavily on the history of legislative prayer in this country, a prayer practice that is not problematic in the ways identified in Marsh (as petitioner’s practice concededly is not) does not amount to an unconstitutional establishment of religion merely because most prayer- givers are Christian and many or most of their prayers contain sectarian references. The unbroken history of the offering of prayer in Congress, for example, has included a large majority of Christian prayer-givers and a substantial number of prayers with identifiably sectarian references. Neither federal courts nor legislative bodies are well suited to police the content of such prayers, and this Court has consistently disapproved of government interference in dictating the substance of prayers.
Taken to its logical conclusion, the government's position here would disable the judiciary from considering the content of any prayer, including one that was vigorously and even violently sectarian.
[image of Athena, via]
As we think about surveillance of electronic communication in the United States, it's worth (re)considering China's surveillance and censorship of electronic interactions amongst its own citizens. Jason Ng's new book, Blocked on Weibo: What Gets Suppressed on China’s Version of Twitter (and Why) promises to be an engaging exploration of the multi-layered relationships between the Chinese government and "netcitizens" and - - - importantly - - - corporations.
Here's Jason Ng in conversation with Sharon Hom, the Executive Director of Human Rights in China.
Of special interest is the screen shot showing the search for the phrase "constitutional democracy" (at about 1:36). The discussion by Ng and Hom of creative work-arounds and corporate "tolerance" is also worth a listen.
Friday, August 9, 2013
NPR's "All Things Considered" today featured a segment on "The Raisin Outlaw of Kerman, California," none other than Marvin Horne, of Horne v. Department of Agriculture, decided by the Court in June. Recall that the Court, in a unanimous opinion, reversed the Ninth Circuit's ruling that the Hornes did not state a claim for a regulatory taking. At issue are marketing orders promulgated by the USDA (United States Department of Agriculture) under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., that mandate that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.
As NPR phrases it, "For not agreeing to participate in behavior that in many other industries would be considered collusion, the federal government sued the Hornes for hundreds of thousands of dollars in uncollected raisins and fines." (emphasis in original).
For anyone following takings clause doctrine (or agricultural matters and food law), this is worth a listen.
President Obama said that he directed his national security team "to review where our counterterrorism efforts and our values come into tension," and "to be more transparent and to pursue reforms of our laws and practices." He said he'd work with Congress to reform Section 215 of the Patriot Act, the statutory authority for the Foreign Intelligence Surveillance Court to order the release of telephone records (and which came under fire with Snowden's release of the FISC order doing just that), and to reform the FISC, in particular, by appointing a civil liberties advocate at the court. He also said he'd work to be more transparent about surveillance and appoint an independent group "to step back and review our capabilities, particularly our surveillance technologies, and . . . how we can maintain the trust of the people . . . ."
As to the legal authority, the administration gave a broad read to the term "relevant" in Section 215--the issue that EPIC pressed in its recent suit challenging the program. That is, the administration takes the position that Section 215's requirement that FISC production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation" gives very broad sweep to the FISC's authority. The administration also focused on controls over abuse of the authority under Section 215.
The document argues that the program violates neither the Fourth Amendment nor the First Amendment. As to the Fourth, the document claims that surveillance of telephony metadata doesn't even qualify as a "search" under Smith v. Maryland (1979), and, even if it did, the "search would satisfy the reasonableness standard that the Supreme Court has established in its cases authorizing the Government to conduct large-scale, but minimally intrusive, suspicionless searches" under Maryland v. King (2013).
As to the First Amendment, the document argues that the program authorizes the collection of only metadata, not content. Moreover, it says that as a lawful investigative activity, can't violate the First Amendment, and that there's no chilling of protected speech.
August 9, 2013 in Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Fourth Amendment, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 6, 2013
The Sixth Circuit ruled last week in McGlone v. Cheek that the University of Tennessee's speech policy was unconstitutionally vague and violated the First Amendment.
The case arose when the University denied permission to McGlone, a self-described "committed Christian," to share his religious beliefs with students in an open-air amphitheater on campus. Campus authorities told him that he needed a University sponsor. In particular, they told him that University policy required speakers not affiliated with the University receive sponsorship from "students, faculty, or staff." But they also told him that he needed to be "sponsored by a registered student organization, staff, or faculty." McGlone couldn't get a sponsor, so he didn't speak. But he sued.
The Sixth Circuit seized on the different articulations of the policy--one requiring sponsorship from "students, faculty, or staff," and the other requiring sponsorship from "a registered student organization, staff, or faculty"--to rule that the policy was unconstitutionally vague. The court said that a person of ordinary intelligence wouldn't know the University policy's meaning, that University officials had applied it differently, and that it left open the possibility of arbitrary and discriminatory enforcement.
The court remanded the case to the district court with instructions to grant a preliminary injunction against the University.
In its opinion in D.B. v. Kopp, the Seventh Circuit affirmed the district judge's dismissal of an equal protection "class of one" claim against Grant County (Wisconsin) and certain officials because they "overzealously
The mother of the five year old twins was the adult who discovered the interaction and who "reported the incident to her sister-in-law, who happened to be the regional supervisor in charge of the state agency that administers family and children’s services." The father of the twins was a public official in the town. D.B. alleges that he was singled out, "charged" with sexual assault although the twins admitted their actions were the same, and that D.B. was "subjected to an overbearing investigation and unjustified court proceedings based on improper political favoritism."
In rejecting the claim, the Seventh Circuit found that the fact that the twins' mother witnessed D.B.'s actions was sufficient to support the state's actions. It reasoned that while
political connections may also plausibly explain why D.B. was targeted for investigation and the twins were not. But the test for rationality does not ask whether the benign justification was the actual justification. All it takes to defeat the plaintiffs’ claim is a conceivable rational basis for the difference in treatment.
(emphasis in original). The opinion added that:
We are not suggesting that this was a well-administered investigation, or a wise exercise of prosecutorial discretion, for that matter. Our decision today should not be understood as an endorsement of this use of state power, which strikes us (assuming the allegations are true) as a troubling overreaction to a situation that could and should have been handled informally. It’s easy to understand why the twins’ mother would be alarmed and upset, but it’s also reasonable to expect that the response by Grant County officials would be measured and proportionate. As the district court aptly put it, accusing a six-year-old boy of first-degree sexual assault shows “poor judgment at best.” But poor judgment does not violate the Constitution.
Surely, there might be cases in which "poor judgment" would "violate the Constitution," but the court finds this is not one of those cases.
[corrected: Seventh Circuit]
Monday, August 5, 2013
Recall that the district court dismissed the case for lack of standing and for raising a political question. The defendants in their brief raised those issues and another ground for dismissal: the claims are barred by the Speech or Debate Clause. The defendants said that "[u]nder that Clause, Senate officers are absolutely immune from suit for any actions assisting the Senate in carrying out debate under its rules because such acts fall squarely within the sphere of legitimate legislative activity protected from questioning by the Clause." Brief of Appellees at 21.
Common Cause responded:
Actions that violate the Constitution are not "within the sphere of legitimate legislative activity"--they are ultra vires. As the Supreme Court held in Powell, Dombrowski and Kilbourn, "legislative employees who participated in the unconstitutional activity" are not immune from suit under the Speech or Debate Clause and are "responsible for their acts." Powell.
Reply Brief at 30.
The students' bracelets proclaimed "I ♥ boobies (KEEP A BREAST)." The Easton Area School District banned the bracelets as not suitable for school. In an en banc opinion today in B.H. v. Easton Area School District, the Third Circuit upheld the First Amendment rights of the students, affirming the district judge's injunction against the school.
The bracelets were clearly speech and the school's attempt to ban the expression brought the Supreme Court's student speech cases into play: Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), Hazelwood Sch. Dist. v. Kuhlmeier (1988) and Morse v. Frederick (2007).
The school district relied most heavily on Fraser, defending the bracelet ban as an exercise of its authority to restrict lewd, vulgar, profane, or plainly offensive student speech allowable under Fraser. However, in the en banc opinion joined by 9 judges, the Third Circuit held that although under Fraser, "a school may categorically restrict plainly lewd, vulgar, or profane speech that offends for the same reasons obscenity offends," Fraser "does not permit a school to categorically restrict ambiguous speech that a reasonable observer could interpret as having a lewd, vulgar, or profane meaning and could plausibly interpret as commenting on a social or political issue." (emphasis added).
The Third Circuit noted that the Tinker disruption standard remained as a "backstop" to the school's argument, but held that here it was not effective. Tinker, the court asserted "meant what it said: ―a specific and significant fear of disruption, not just some remote apprehension of disturbance," and in the case of the Easton School District's ban on the bracelets the "record of disruption is even skimpier" than it was in the case of the Des Moines school district's ban on the black armbands at issue in Tinker.
For the 5 dissenting judges,there was some doctrinal disagreement over the controlling rationale of Morse (the "Bong Hits 4 Jesus" case), but the central issue was the applicability of Fraser. For the dissenters, the balance tips toward deference to the school and the fact that the phrase "I ♥ boobies! not only expresses support for those afflicted with breast cancer, but also conveys a sexual attraction to the female breast," allows the school to ban the bracelets. This is true even if "certain facts indicate that a sexual interpretation of the ―I ♥ boobies bracelets may be at the outer edge of how a reasonable observer would interpret speech."
In a very short separate dissenting opinion, but signed by all 5 dissenters, Judge Greenaway, Jr. makes the point that the majority opinion provides little guidance to school districts. Thus, the "I ♥ boobies" Third Circuit opinion joins the "My Space" off campus school speech Third Circuit en banc opinion in 2011, which provided just a little guidance. Yet perhaps the guidance is this: school officials seeking to restrict student speech do so at their own peril.
More on "Dressing Constitutionally" blog here