Monday, September 22, 2014

Ninth Circuit Rejects Apel's First Amendment Claim on Remand

When the United States Supreme Court decided United States v. Apel in February 2014, the Court's analysis of a protest on/outside a military facility focused on the statutory construction issue and as the oral argument predicted, rebuffed the First Amendment issue.

However, Justice Ginsburg's concurring opinion made clear that the First Amendment issue still required resolution.  She wrote:

But a key inquiry remains, for the fence, checkpoint, and painted line, while they do not alter the Base boundaries, may alter the First Amendment calculus. When the Government permits the public onto part of its property, in either a traditional or designated public forum, its “ability to permissibly restrict expressive conduct is very limited.” United States v. Grace, 461 U. S. 171, 177 (1983). In such venues, the Government may enforce “reasonable time, place, and manner regulations,” but those regulations must be “content-neutral [and] narrowly tailored to serve a significant government interest.” Ibid.

Today, a panel of the Ninth Circuit did not agree with Justice Ginsburg's identification of a "key issue" and quickly dispatched the First Amendment claim in its very brief per curiam opinion in United States v. Apel.  Here's the entirety of the analysis:

In light of the Supreme Court’s decision, Apel’s challenge to the applicability of 18 U.S.C. § 1382 to the facts of his case is denied. As to Apel’s defense that his conviction violates the First Amendment, we agree with the district court’s conclusion that “whether or not the designated protest area at Vandenberg Air Force Base is a public forum, the military may properly exclude recipients of valid bar letters, such as Mr. Apel, without violating the First Amendment.” See United States v. Albertini, 472 U.S. 675, 687–89 (1985); United States v. Walsh, 770 F.2d 1490, 1493 (9th Cir. 1985) (“Albertini indicates that whether or not a base is a public forum, the military may exclude recipients of bar letters without violating the First Amendment.”).

 Thus, Apel's extended protest outside the Vandenberg Air Force Base can be criminalized.

CA-VAFB

September 22, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, September 18, 2014

Ninth Circuit Again Upholds School Ban of American Flag on Cinco de Mayo

Recall that in February of 2014, a panel of the Ninth Circuit in Dariano v. Morgan Hill Unified School District rejected a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration.

The en banc Ninth Circuit has now denied en banc review, over a dissent, and issued an amended panel opinion which adds several paragraphs of analysis.

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flag jacket via

Dissenting from the denial of rehearing en banc, Judge O’Scannlain, joined by Judges Tallman and Bea, argued that the reaction of other students to the flag-clothing wearing students amounted to a " heckler’s veto" which the panel wrongly validated.  Moreover, the dissent argued that this created a circuit split with the Seventh Circuit, relying on Zamecnik v. Indian Prairie School District No. 204, decided in 2011. Judge Posner's opinion in Zamecnik concluded that the students wearing the "Be Happy Not Gay" t-shirt was protected by the First Amendment (although  importantly Posner did not highlight any possible violence in that case).   The dissenting opinion from en banc review by O'Scannlain does not include the Sixth Circuit's Bible Believers v. Dearborn County decided less than a month ago in which the court extensively analyzed the heckler's veto doctrine and found the speech could be limited.  As to the "confederate flag" cases on which the original panel relied, the dissent from en banc review by O'Scannlain distinguished situations dealing  "solely with a symbol that is 'widely regarded as racist and incendiary.'” 

In its amended opinion, the panel added three paragraphs that presumably address some of these concerns.  The amended opinion now includes:

We recognize that, in certain contexts, limiting speech because of reactions to the speech may give rise to concerns about a “heckler’s veto.” [fn 7] But the language of Tinker and the school setting guides us here. Where speech “for any reason . . . materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” school officials may limit the speech. Tinker, 393 U.S. at 513. To require school officials to precisely identify the source of a violent threat before taking readily-available steps to quell the threat would burden officials’ ability to protect the students in their charge—a particularly salient concern in an era of rampant school violence, much of it involving guns, other weapons, or threats on the internet—and run counter to the longstanding directive that there is a distinction between “threats or acts of violence on school premises” and speech that engenders no “substantial disruption of or material interference with school activities.” Id. at 508, 514; see also id. at 509, 513.

 

In the school context, the crucial distinction is the nature of the speech, not the source of it. The cases do not distinguish between “substantial disruption” caused by the speaker and “substantial disruption” caused by the reactions of onlookers or a combination of circumstances. See, e.g., Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 38, 38 n. 11 (10th Cir. 2013) (observing that “Plaintiffs note that most disruptions occurred only because of wrongful behavior of third parties and that no Plaintiffs participated in these activities . . . . This argument might be effective outside the school context, but it ignores the ‘special characteristics of the school environment,’” and that the court “ha[d] not found[] case law holding that school officials’ ability to limit disruptive expression depends on the blameworthiness of the speaker. To the contrary, the Tinker rule is guided by a school’s need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine.” (quoting Tinker, 393 U.S. at 506)); Zamecnik, 636 F.3d at 879–80 (looking to the reactions of onlookers to determine whether the speech could be regulated); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1272 (11th Cir. 2004) (looking to the reactions of onlookers to determine whether a student’s expression “cause[d] (or [was] likely to cause) a material and substantial disruption”) (alterations and internal quotation marks omitted).

 

Perhaps no cases illustrate this principle more clearly than those involving displays of the Confederate flag in the school context. We respect the American flag, and know that its meaning and its history differ greatly from that of the Confederate flag. Nevertheless, the legal principle that emerges from the Confederate flag cases is that what matters is substantial disruption or a reasonable forecast of substantial disruption, taking into account either the behavior of a speaker—e.g., causing substantial disruption alongside the silent or passive wearing of an emblem—or the reactions of onlookers. Not surprisingly, these cases also arose from efforts to stem racial tension that was disruptive. Like Dariano, the reasoning in these cases is founded on Tinker. See, e.g., Hardwick, 711 F.3d at 437 (Fourth Circuit case upholding school officials’ ban on shirts with labels like “Southern Chicks,” “Dixie Angels,” and “Daddy’s Little Redneck,” and the Confederate flag icon, even though the bearer contended that hers was a “silent, peaceable display” that “even drew positive remarks from some students” and “never caused a disruption” because “school officials could reasonably forecast a disruption because of her shirts” (internal quotation marks omitted)); A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 223 (5th Cir. 2009) (noting that “[o]ther circuits, applying Tinker, have held that administrators may prohibit the display of the Confederate flag in light of racial hostility and tension at their schools”); Barr v. Lafon, 538 F.3d 554, 567–68 (6th Cir. 2008) (noting the “disruptive potential of the flag in a school where racial tension is high,” and that “[o]ur holding that the school in the circumstances of this case reasonably forecast the disruptive effect of the Confederate flag accords with precedent in our circuit as well as our sister circuits”).[fn8]

Whether these additional paragraphs are sufficient to ameliorate the concerns that might be raised in a petition for certiorari is now the question.

 

September 18, 2014 in Courts and Judging, Equal Protection, Federalism, First Amendment, History, Opinion Analysis, Race, Speech | Permalink | Comments (1) | TrackBack (0)

Monday, September 15, 2014

District Judge Finds Ohio's Prohibition of Campaign Falsehoods Violates First Amendment

In a 25 page opinion  replete with bolded underlined language, Judge Timothy Black held Ohio's statutory provisions prohibiting political false statements in Susan B. Anthony List v. Ohio Elections Commission.  

Recall that the United States Supreme Court heard the case as Susan B. Anthony List v. Driehaus  last Term and unanimously held that the case was ripe for review, reversing the Sixth Circuit.  The Court's opinion made little mention of the substantive First Amendment arguments, although at oral argument, counsel for the anti-abortion group Susan B. Anthony List, referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia. 

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"The Mouth of Truth"
woodcut by Lucas van Leyden circa 1514
via

Judge Black refrains from an explicit Orwellian allusion, but he expresses a similar sentiment: "we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth." (bold underlining in original).  However, Judge Black does resort to a phrase attributed to the character Frank Underwood in the television show House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.” (bold underlining in original).

Doctrinally, Judge Black relies on United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, noting that the four Justice plurality held that strict scrutiny should apply and concluding that the federal statute was not necessary to achieve compelling interests and that less restrictive alternatives existed.

In considering the compelling government interest prong, Judge Black distinguished McIntyre v. Ohio Elections Committee (1995), the Court held unconstitutional a state statute prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature.  This "right to be anonymous" seemed to rest in part on the government interest in ensuring truthfulness, but as Judge Black writes:

However, in McIntyre, the Supreme Court did not describe the state interest in preventing false speech as “compelling” or even “substantial,” saying only that it was “legitimate” and has “special weight during election campaigns.”  McIntyre expressly refrained from any decision regarding the constitutionality of Ohio’s political false-statements laws. Moreover, Defendants cite no evidence that the false statements laws are “actually necessary” to achieve their interest. To be actually necessary, there must be a direct causal link between the restriction imposed and the injury to be prevented. Id.6 Here, instead, Defendants admit that “the consequences of deceptive false statements on elections are ... inherently difficult to quantify.”

[citations omitted].

 As to the narrowly tailored prong, Judge Black found that the statute chilled protected truthful speech, especially important in the political context.  Judge Black again emphasizes that the remedy for false speech is true speech, even as he notes that he is not convinced that "counterspeech will always expose lies," especially "in the wake of Citizens United."  Nevertheless, the problem of government-determined truth is problematical:

we certainly do not want the Government (i.e., the OEC) deciding what is political truth anyway, for fear that the Government might persecute those who criticize the Government or its leaders. Ultimately, whether or not it is possible to create a system by which impartial citizens could identify lies from the truth is unclear. What is crystal clear, however, is that Ohio’s statutes fail in this respect. The process is inherently flawed.

Judge Black issued both a preliminary and permanent injunction so that the decision is a "final, appealable Order."  Whether or not Ohio officials will choose to return to the Sixth Circuit remains to be seen.

September 15, 2014 in Campaign Finance, Courts and Judging, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2014

Third Circuit Upholds New Jersey's Ban on Sexual Conversion Therapy Against First Amendment Challenge

Robson

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Third Circuit has upheld the constitutionality of  New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in its unanimous 74 page opinion in King v. Christie, Governor of New Jersey.  

The Third Circuit affirmed the district judge's extensive opinion from last November and reached the same conclusion as the Ninth Circuit did when reviewing a very similar California statute in  Pickup v. Brown, albeit on different grounds.

  640px-Nellie_Bly-Mad-House-07The Third Circuit's opinion by Judge D. Brooks Smith (and joined by Judges Vanaskie and Sloviter),  specifically disagrees with the Ninth Circuit's conclusion that SOCE is "conduct" rather than speech, a conclusion the New Jersey district judge essentially adopted.  The Third Circuit credits some of the reasoning of Ninth Circuit Judge O'Scannlain's "spirited dissent" from en banc review in Pickup as well the Supreme Court's Holder v. Humanitarian Law Project.  The Third Circuit rejected the principle that there is a sustainable line between utterances that are speech and those that are treatment:

consider a sophomore psychology major who tells a fellow student that he can reduce same- sex attractions by avoiding effeminate behaviors and developing a closer relationship with his father. Surely this advice is not “conduct” merely because it seeks to apply “principles” the sophomore recently learned in a behavioral psychology course. Yet it would be strange indeed to conclude that the same words, spoken with the same intent, somehow become “conduct” when the speaker is a licensed counselor.”  . . . .  As another example, a law student who tries to convince her friend to change his political orientation is assuredly “speaking” for purposes of the First Amendment, even if she uses particular rhetorical “methods” in the process.

Yet, the court concludes that although such utterances are speech, they are not "fully protected by the First Amendment" because they occur in a professional context.  In speech that occurs pursuant to the practice of a licensed profession - - - including fortune-tellers, a case on which the court relies - - - the speech is entitled to less protection. 

Nellie_Bly-Mad-House-15Precisely, it is entitled to the same level of protection as commercial speech, although importantly the Third Circuit is careful not to hold that this professional speech is commercial speech.   In applying the intermediate scrutiny type standard derived from commercial speech, the court finds that the statute "directly advances” the government’s interest in protecting clients from ineffective and/or harmful professional services, and is “not more extensive than necessary to serve that interest.”

The court's distinction between professional and nonprofessional speech, however, may  suffer from the same lack of bright lines that it finds with the conduct/speech distinction.  The court stresses that professional speech occurs in the context of "personalized services to client based on the professional's expert knowledge and judgement."  But in rejecting an argument that the New Jersey statute makes a viewpoint distinction, the court states that the statute

allows Plaintiffs to express this viewpoint, in the form of their personal opinion, to anyone they please, including their minor clients. What A3371 prevents Plaintiffs from doing is expressing this viewpoint in a very specific way—by actually rendering the professional services that they believe to be effective and beneficial.

The Third Circuit's opinion also considered the challenge that the statute was vague and overbroad, noting that the Plaintiffs themselves claim to specialize in the very practice they argue is not sufficiently defined.  Similarly, the Third Circuit rejected the Free Exercise Clause claim, affirmed the district judge's conclusion on lack of standing to raise the claims of the minor clients (with some disagreement as to reasoning), and also affirmed on the intervention of an organization.

However, it is the free speech claim that it is the center of this controversy, with the Third Circuit carving out a "professional speech" category, in a disagreement with the Ninth Circuit (and on similar issues with other circuits as it notes), but clearly upholding the statute.

 [images from "Ten Days in a Mad House, Nellie Bly, via]

September 11, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

D.C. Circuit to Rehear Obamacare Challenge

The full D.C. Circuit today agreed to rehear Halbig v. Burwell, in which a three-judge panel of the court previously struck the IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income requirements.  Today's order also vacates that earlier ruling.  It means that the full, en banc D.C. Circuit will get a bite at the apple, and that the earlier panel ruling is wiped from the books.  The court will hear arguments on December 17.

Recall that the earlier panel ruling striking the tax credit was in direct conflict with a Fourth Circuit ruling the same day upholding the tax credit.  Today's order also removes that circuit split.

We last posted on the case, with background explanation, here.  In short, the case involves an IRS rule that extends tax credits to purchasers of health insurance on a federally operated exchange.  Opponents of the rule argue that the plain text of the ACA limits credits to purchasers on a state-operated exchange.  The government argues that the broader text of the ACA and its purposes show that the credit applies to purchasers on both state and federal exchanges. 

A ruling striking the credits for purchasers on a federal exchange would deal a major blow to the Affordable Care Act and its goal of universal coverage, and could put lower-income purchasers in a pinch.  That's because purchasers in states that declined to establish their own exchanges (and thus triggered the federal government to establish a federal exchange) wouldn't qualify for a credit, and may not be able to afford insurance without it, yet would still be required to purchase it.  An amendment to the ACA could easily solve the problem (again, if a court struck the credits for purchasers on federal exchanges), but congressional opponents of the ACA, and thus Congress, would never go for it--at least unless and until these cases are resolved in favor of the government (when the point would be moot, anyway). 

September 4, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Seventh Circuit Declares Same-Sex Marriage Prohibitions of Two States Unconstitutional

The Seventh Circuit heard oral arguments in Baskin v. Bogan and Wolf v. Walker were just last week.  Today, the court issued its unanimous opinion affirming the district court findings that the same-sex marriage bans in Indiana and Wisconsin are unconstitutional. 

The Seventh Circuit panel enjoined the states from enforcing the laws and did not issue a stay.

Judge Richard Posner (pictured right) who is perhaps the most well-known judge not on the United States Supreme Court and who attracted attention with his comments at the oral argument, perhaps not surprisingly wrote the 40 page opinion. 

441px-Richard_Posner_at_Harvard_UniversityPosner begins by implying the state laws before the court are outliers:

Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful.

The panel's decision is based entirely on equal protection doctrine under the Fourteenth Amendment.  Here's Judge Posner introducing the concept that

comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.

However, Judge Posner's analysis draws heavily on his work in law and economics, implying that cost-benefit analysis deserves more attention that the "conventional approach"  - - - which "doesn’t purport to balance the costs and benefits of the challenged discriminatory law" - - - gives it.  For Posner:

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

9780674802803Judge Posner doesn't cite his own 1992 book, Sex and Reason, but he could have.  And the rhetorical style and much of the reasoning in this opinion echoes the book, which was widely debated.

Judges Williams and Hamilton apparently agreed.

If the cases go en banc or to the Supreme Court, it will be interesting to see if any of the law and economics rationales are prominent.

 

 

September 4, 2014 in Courts and Judging, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 3, 2014

Second Circuit Arguments on NSA Spying on C-Span

The Second Circuit heard oral arguments yesterday in a challenge to the NSA program involving mass collection of telephone call details under Section 215 of the Patriot Act.  The full argument was broadcast on C-Span and is available here.  (The embed code wasn't cooperating.)

The case, ACLU v. Clapper, is one of three cases challenging the program now pending in the circuit courts; the other two are Smith v. Obama (in the Ninth Circuit) and Klayman v. Obama (in the D.C. Circuit).  The Electronic Frontier Foundation has a backgrounder here, with links to case materials; the ACLU has a backgrounder on Section 215 here; the ACLU's page on ACLU v. Clapper is here.

Challengers in the cases argue that Section 215 violates the First and Fourth Amendments, but face justiciability questions before the courts will get to the merits.  That's because Section 215 prohibits a telecommunication company subject to a 215 order from telling its customers about it, so without more a customer wouldn't know.  Still, the district courts in Smith and Klayman ruled that the plaintiffs had standing based on the sheer breadth of the program.

September 3, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Louisiana Federal Judge Upholds State's Same-Sex Marriage Ban

Breaking the spate of federal decisions that have invalidated state same-sex marriage prohibitions, federal district judge Martin Feldman of the Eastern District of Louisiana today upheld the constitutionality of that state's ban in his 32 page  opinion in Robicheaux v. Caldwell. 

Judge Feldman rejects the equal protection claim (the "most hefty constitutional issue") and the due process claim, as well as rejecting any heightened scrutiny within those claims and any extension of Windsor to state same-sex marriage bans. In applying rational basis, the judge found that the "central state interest of linking children to an intact family formed by their biological parents" and of "even more consequence," the "legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus," was sufficient.

The theoretical underpinnings of the judge's rationale are a preference for states' rights,  democratically enacted provisions, tradition, and a judicial practice of being "circumspect." 

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Judge Feldman's opinion credits notions of formal equality and the slippery slope.  For example, in rejecting the analogy to Loving v. Virginia, Judge Feldman writes:  "no analogy can defeat the plain reality that Louisiana's laws apply evenhandedly to both genders--whether between two men or two women."   This evenhandedness was precisely the argument Virginia unsuccessfully advanced in Loving when it argued that under its miscengenation statute, both whites and blacks would be prosecuted.  At another point, Judge Feldman states:

Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. Perhaps that is the next frontier, the next phase of some "evolving understanding of equality," where what is marriage will be explored. And as plaintiffs vigorously remind, there have been embattled times when the federal judiciary properly inserted itself to correct a wrong in our society. But that is an incomplete answer to today's social issue. When a federal court is obliged to confront a constitutional struggle over what is marriage, a singularly pivotal issue, the consequence of outcomes, intended or otherwise, seems an equally compelling part of the equation. It seems unjust to ignore. And so, inconvenient questions persist. For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.

Judge Feldman acknowledged that his decision departed from the recent trend, but quoted from the dissenting opinion in the Fourth Circuit's decision in Bostic v. Schaefer.

As Judge Feldman also stated:

Clearly, many other courts will have an opportunity to take up the issue of same-sex marriage; courts of appeals and, at some point, the U.S. Supreme Court. The decision of this Court is but one studied decision among many. Our Fifth Circuit has not yet spoken.

Whether or not the case is appealed to the Fifth Circuit, the issue seems sure to be heard by the United States Supreme Court.

September 3, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Monday, September 1, 2014

District Judge Enjoins Portions of Texas' Restrictive Abortion Law, HB 2

The latest installment in the continuing saga of HB 2, Texas' restrictive abortion law, occurred late Friday with Judge Lee Yeakel enjoining the admitting privileges requirement and the ambultory-surgical-center requirement in his 21 page  opinion  in Whole Woman's Health Center v. Lakey.

Recall that a panel of the Fifth Circuit in March upheld the admitting privileges provision of controversial  Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis, after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional. 

This new opinion considers the as-applied challenge to the admitting privileges provision combined with the the ambultory-surgical-center requirement. 

In considering the testimony and evidence in the bench trial, Judge Yeakel found that the "experts’ testimony substantially contradicted each other and, predictably, reached opposing conclusions," noting that this is "the nature of expert testimony."   But the judge did use some of that testimony, as well as carefully considering the parties' stipulations. 

The court concludes that the act’s ambulatory-surgical—center requirement, combined with the already in-effect admitting-privileges requirement, creates a brutally effective system of abortion regulation that reduces access to abortion clinics thereby creating a statewide burden for substantial numbers of Texas women. The obstacles erected for these women are more significant than the “incidental effect of making it more difficult or more expensive to procure an abortion.” [citing Casey].  The court concludes that the overall lack of practical access to abortion services  resulting from clinic closures throughout Texas as a result of House Bill 2 is compelling evidence of a substantial obstacle erected by the act.  

The judge also concluded "that the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them."  And, perhaps most interestingly, the judge explicitly considered the legislative intent of HB2:

An abortion regulation is also violative of a woman’s right to an abortion if it was adopted with the purpose of erecting a substantial obstacle to a woman’s ability to choose a previability abortion. [citing Gonzales v Carhart]. Because the act’s two requirements have the effect of creating an undue burden, an additional finding that the act was passed with the purpose of erecting a substantial obstacle is not required in order to declare the act unconstitutional. However, the court  concludes, after examining the act and the context in which it operates, that the ambulatory-surgical- center requirement was intended to close existing licensed abortion clinics. The requirement’s  implementing rules specifically deny grandfathering or the granting of waivers to previously licensed  abortion providers. This is in contrast to the “frequent” granting of some sort of variance from the  standards which occur in the licensing of nearly three-quarters of all licensed ambulatory surgical  centers in Texas. Such disparate and arbitrary treatment, at a minimum, suggests that it was the intent of the State to reduce the number of providers licensed to perform abortions, thus creating a substantial obstacle for a woman seeking to access an abortion. This is particularly apparent in light of the dearth of credible evidence supporting the proposition that abortions performed in ambulatory  surgical centers have better patient health outcomes compared to clinics licensed under the previous regime.  

[emphasis added].

Thus, the judge enjoined the enforcement of HB2.  

The Attorney General of Texas is sure to appeal. 

September 1, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, August 29, 2014

Texas Supreme Court: Injunction Prohibiting Future Defamation an Unconstitutional Prior Restraint But . . .

In its unanimous opinion today in Kinney v. Barnes, the Texas Supreme Court (pictured) considered the constitutionality of requested relief on an injunction in a defamation case for removal/ deletion of speech that has been adjudicated defamatory, and that "prohibits future speech that is the same or similar to the speech that has been adjudicated defamatory." 

The court held that an injunction of the former type would be constitutional, while the latter would not.

BenchJANUARY2013-5

The court's opinion, authored by Justice Debra Lehrmann, squarely rested its conclusion on state constitutional law, TEX. CONST. art. I, § 8, even as it relied heavily on United States Supreme Court cases on prior restraint under the First Amendment.  However, the court specifically declined to "determine whether the Texas Constitution provides greater protection than the First Amendment on the specific issue presented to us, as the U.S. Supreme Court has not definitively addressed it." 

The trial and intermediate appellate court both granted summary judgment in favor of the defendant based on the unconstitutionality of the relief sought.  However, the court found that an injunction could

order Barnes to remove the statements at issue from his websites (and request that third-party republishers of the statements do the same) upon a final adjudication that the statements are defamatory. Such an injunction does not prohibit future speech, but instead effectively requires the erasure of past speech that has already been found to be unprotected in the context in which it was made. As such, it is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint.

This would be true assuming that the standards for an injunction were otherwise met, with the understanding that damages are the preferred remedy for defamation.  However, as to future statements, an injunction would be an impermissible prior restraint, in part because it would be almost necessarily overbroad:

The particular difficulty in crafting a proper injunction against defamatory speech is rooted in the contextual nature of the tort. In evaluating whether a statement is defamatory, the court construes it “as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement.” [citation omitted].  Given the inherently contextual nature of defamatory speech, even the most narrowly crafted of injunctions risks enjoining protected speech because the same statement made at a different time and in a different context may no longer be actionable. Untrue statements may later become true; unprivileged statements may later become privileged.

Yet in some ways, this observation highlights the problem with the removal of the adjudged defamatory statement.  It too is contextual and time-bound, but arguably this becomes (temporarily) determined if there is a finding that it is defamatory. 

The court rejected the notion that "the Internet is a game-changer" and also rejected the assertion of the importance of "cyber-bullying and online hate speech": "It is enough to say that neither of those is at issue here."

August 29, 2014 in Courts and Judging, First Amendment, Speech, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, August 21, 2014

Florida Federal District Judge Declares State's Same-Sex Marriage Ban Unconstitutional

In his 33 page  opinion  today in Brenner v. Scott, Judge Robert Hinkle of the Northern District of Florida found that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes § 741.04(1) violated the Fourteenth Amendment.

Judge Hinkle first determined that the "right asserted by the plaintiffs is a fundamental right as that term is used in due-process and equal-protection jurisprudence," noting that almost every court that has addressed the issue since the Supreme Court’s 2013 decision in Windsor has said the answer is yes, and concluded that that "view is correct."  Given that there is a fundamental right, he continued:

That leaves for analysis the second step, the application of strict scrutiny. A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest. A variety of justifications for banning same- sex marriages have been proffered by these defendants and in the many other cases that have plowed this ground since Windsor. The proffered justifications have all been uniformly found insufficient. Indeed, the states’ asserted interests would fail even intermediate scrutiny, and many courts have said they would fail rational- basis review as well. On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive. All that has been said there is not repeated here.

Judge Hinkle did take the opportunity, however, to specifically discuss the procreation argument, finding that "Florida has never conditioned marriage on the desire or capacity to procreate."

Like other judges, Judge Hinkle used Justice Scalia's dissenting language from Lawrence v. Texas to note that moral disapproval in the marriage context is the same as moral disapproval in the sodomy context. 

Judge Hinkle's opinion then analyzed the requirements for a preliminary injunction, finding them satisfied. But he also held that a stay was warranted; it would have been difficult to rule otherwise in light of the previous stays, including the one just yesterday by the United States Supreme Court.

August 21, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

No Head-of-State Immunity for Finance Minister

Judge James E. Boasberg (D.D.C.) ruled earlier this week in Sikhs for Justice v. Singh that while Manmohan Singh enjoyed head-of-state immunity from suit in U.S. federal court for acts committed while he was Prime Minister of India, that immunity did not extend to acts he took earlier, when he was Finance Minister.  They ruling means that the plaintiff's case against Singh for acts he took while Finance Minister can move forward, but that Singh is immune from suit for acts he took while Prime Minister.

Plaintiffs Sikhs for Justice alleged that Singh tortured and killed Indian Sikhs during his time as Prime Minister and before, when he was Finance Minister.  The group filed suit in the D.C. District while Singh was Prime Minister, but Singh then left office (or, rather, got voted out).  The government filed a Suggestion of Immunity, arguing that Singh enjoyed head-of-state immunity for acts he committed as Prime Minister.  But it didn't state a position on immunity for acts before Singh became Prime Minister, when he was Finance Minister.

Judge Boasberg ruled that Singh wasn't immune for those acts.  In a case of apparent first impression, Judge Boasberg said that "[w]hile Singh's alleged acts as Finance Minister are not 'private' per se, they did not occur in the course of his official duties as head of state; accordingly they are not encompassed within the purview of head-of-state immunity."

Judge Boasberg, however, adopted the government's position and granted immunity for acts taken while Singh was Prime Minister.  Judge Boasberg also ruled that Singh enjoyed risidual immunity for those acts after he left office.

The upshot is that the plaintiff's case can proceed against Singh for acts he took as Finance Minister, but not for acts he took as Prime Minister, even after he left office.

August 20, 2014 in Cases and Case Materials, Courts and Judging, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

UDC Law Review Covers Civil Gideon

The University of the District of Columbia Law Review just issued its symposium edition on the right to counsel in civil cases, or Civil GideonThe full list of articles and links to the full texts are here.  John Pollock, staff attorney at the Public Justice Center in Baltimore and coordinator of the National Coalition for the Civil Right to Counsel, wrote the introduction, with a background on the Civil Gideon movement and updates on progress; a direct link to Pollock's article is here.

August 20, 2014 in Courts and Judging, Fundamental Rights, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Supreme Court Issues Stay in Virginia Same-Sex Marriage Case

In Bostic v. Schaefer in late July, a divided panel of the Fourth Circuit held that Virginia's ban on same-sex marriage was unconstitutional and in mid-August, a majority of the panel refused,  without analysis, to grant a stay of its opinion.

Today, as widely anticipated, the United States Supreme Court did grant a stay in its Order in McQuigg v. Bostic.  Here's the entire text:

The application for stay presented to The Chief Justice and by him referred to the Court is granted, and the issuance of the mandate of the United States Court of Appeals for the Fourth Circuit in case No. 14-1167, is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

The stay shall remain in effect "in the event the petition for certiorari is granted," an event many believe is quite likely.

 

August 20, 2014 in Courts and Judging, Family, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, August 18, 2014

Second Circuit Orders Compliance Reports on Erie County Prisons Unsealed

The Second Circuit ruled today in U.S. v. Erie County, New York that a lower court's order sealing compliance reports on the treatment of prisoners in Erie County violated the First Amendment.  The ruling means that intervenor New York Civil Liberties Union will have access to the compliance reports.

This First Amendment dispute arose out of an earlier case brought by the United States against Erie County, New York, over the County's treatment of its prisoners.  In particular, the government alleged that Erie County failed to protect inmates from harm, failed to provide them adequate mental health care or medical care, and failed to engage in adequate suicide prevention.

The district court approved a settlement in that earlier case that included the appointment of compliance consultants.  Pursuant to the settlement, the consultants would file written reports with the court every six months on the County's progress, or not, in remedying the issues that led to the suit and settlement.  The court dismissed the suit but retained jurisdiction until the terms of the settlement were fulfilled.  The settlement agreement allowed either party to move to reopen the case at any time ("should issues requring [the] Court's intervention arise"), and either party could move for relief, or the court could issue relief itself.  The County moved, and the court ordered, that the reports be sealed.

The NYCLU moved to intervene and unseal the compliance reports.  The district court granted the motion to intervene, but denied the motion to unseal the reports, ruling that they were akin to settlement negotiation documents and therefore not subject to the First Amendment right of access to judicial documents.  The NYCLU appealed.

The Second Circuit reversed and ruled that the reports were covered by the First Amendment right of access.  The court held that both experience and logic suggest that the reports ought to be available to the public, and that the County's only reason for maintaining the seal--that they are part of a settlement agreement--didn't have any relevance here, because, after all, the case already settled. 

Here's the court:

Erie County wishes to keep the reports which measure its progress, or regress, under seal and, therefore, out of public view.  Yet every aspect of this litigation is public.  The United States Department of Justice is a public agency, which brought a claim before a public court . . . arguing that a public government, Erie County, failed to meet constitutional requirements in operating two public institutions, the Erie County correctional facilities.  And, critically, although a settlement is now in place, the public court retains jurisdiction over the dispute, and indeed may be moved, or move itself, to reinstate civil proceedings.  In a case where every aspect and angle is public, Erie County seeks, nonetheless, to keep the compliance reports under the darkness of a seal.  But the First Amendment does not countenance Erie County's position.  Neither experience nor logic supports sealing the documents, and the District Court erred in concluding otherwise.

August 18, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2014

Daily Read: Kende on Thomas and Korematsu

In his essay Justice Clarence Thomas's Korematsu Problem, forthcoming in Harvard Journal of Racial & Ethnic Justice and available on ssrn, ConLawProf Mark Kende suggests that Justice Thomas actually endorses one of the most reviled Supreme Court opinions, Korematsu v. United States (1944), in which the Court upheld the internment of citizens of Japanese ancestry even as it noted that race-based classifications deserved strict scrutiny.

 

Thomas
Caricature of Justice Thomas by Donkey Hotey via

 Kende focuses on Thomas's dissents in Hamdi v. Rumsfeld (2004) and Johnson v. California (2005) to argue that Thomas's views are consistent with a Korematsu-approving jurisprudence in which government power to enact security concerns trumps color-blindness principles.

 Worth a read as we consider executive power and questions of nationality and race in the news.

August 13, 2014 in Courts and Judging, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Fourth Circuit Denies Stay in Virginia Same-Sex Marriage Case

Without analysis, the Fourth Circuit today in Bostic v. Schaeffer entered its  Order denying the stay of its opinion that Virginia's ban on same-sex marriage violates the Fourteenth Amendment.

Here's the text of the Order:

Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion.

Entered at the direction of Judge Floyd with the concurrence of Judge Gregory. Judge Niemeyer voted to grant the motion.

The 2-1 division of the panel is the same as the division in the opinion on the merits, which we analyzed here.

The saga will undoubtedly continue. 

August 13, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 12, 2014

Third Circuit: Attorney Advertising Rule Regarding Excerpts from Judicial Opinions Violates First Amendment

The New Jersey Supreme Court's Guideline 3 governing attorney advertising provides:

An attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.

The Third Circuit's opinion in Dwyer v. Cappell found this guideline violated the First Amendment's protection of commercial speech in a rather straightforward application of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985).  The court chose to analyze the regulation as one of mandated disclosure - - - the entire opinion must be provided - - - rather than one of prohibition, although the Guideline

bears characteristics of both categories. Yet we need not decide whether it is a restriction on speech or a disclosure requirement. This is because the Guideline is not reasonably related to preventing consumer deception and is unduly burdensome. Hence it is unconstitutional under even the less-stringent Zauderer standard of scrutiny.

800px-Advertisement_of_the_United_States_Employment_Service,_8d16963vThe case arose because New Jersey attorney Andrew Dwyer, specializing in employee representation, ran afoul of Guideline 3  - - - which may have been specifically targeted at him - - - by using on his website language from judicial opinions in attorney fee award matters that duly assessed his competency.   At bottom is the general concept of professional responsibility prohibiting judicial endorsement of attorneys, but in the context of fee award decisions, such assessment is explicitly required.  One judge objected to the use of his comments in an opinion and Guideline 3 eventually resulted.

The Third Circuit implicitly rejected the notion that such excerpts were inherently misleading and noted that even if the excerpts were "potentially misleading to some persons," there is no explanation of how "Dwyer’s providing a complete judicial opinion somehow dispels this assumed threat of deception."  Moreover, the Third Circuit found under Zauderer that the disclosure requirement was burdensome: accurately quoted material is not acceptable absent the full-length judicial opinion and even "a hyperlink to unquoted portions of the opinion fails the Guideline." 

The Third Circuit's conclusion is well-founded in established First Amendment doctrine that robustly protects advertising, even by attorneys. 

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Lawyer advert circa 1900 via

August 12, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2014

Daily Read: Lithwick on Breyer

Over at SLATE, Dahlia Lithwick argues that Justice Breyer is an underappreciated feminist:

Breyer is without a doubt the most ardent believer in government, systems, democracy, and in the American public. . . .

But Breyer is also a feminist . . . [and] Breyer, like David Souter and John Paul Stevens and William J. Brennan and many men before him, has been a staunch defender of women’s rights and freedoms for a long time, often without getting too much credit, especially from the ladies.

Worth a read. 

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Caricature of Justice Breyer by Donkey Hotey via

August 11, 2014 in Courts and Judging, Gender, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2014

Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390

A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as  Mississippi HB 1390.

The statute required physicians performing abortions to have admitting privileges to a nearby hospital.   As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.

1024px-Welcometomississippi_i-20Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly  (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge.   In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.”   The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late."  Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.

 The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi.  The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves.  Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden.  But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right. 

Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state.  Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:

[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.

Id. at 350.  Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights." 

In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."   

But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.

July 29, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)