Monday, March 23, 2015
The Court heard oral arguments today in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.
As we noted when certiorari was granted, the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination. License plate schemes have been well-litigated: The Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
First, there is the issue of whether the specialty license plate had become a traditional public forum. Justice Kennedy seemingly tended toward this view, noting - - - twice - - - that no one goes to parks anymore and so these license plates may be a new public forum for a new era.
Less specifically articulated was whether if there was a limited public forum in the license plates this could have any meaning at all because there were no real standards. Justice Ginsburg quickly asked the Texas Solicitor General, defending the constitutionality of the state scheme, whether it wasn't "nebulous." The number of specialty license plates approved and the very few disapproved was noted several times, again making it seem as if any designation was not at all clear.
The notion of government speech was raised at numerous points, echoing the opinion of Fifth Circuit Judge Jerry Smith who had dissented and contended that the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.
Yet Justice Sotomayor suggested that this might be "hybrid speech," asking counsel for the Texas Sons of Confederate Veterans whether this might not be the "reverse" of Wooley v. Maynard (1977): why should the State be compelled to put something on its license plates that it disapproves?
That the state might be seen as endorsing problematical messages surfaced repeatedly, including this discussion with counsel for the Texas Sons of Confederate Veterans:
JUSTICE GINSBURG: Suppose suppose the message the the applicant said, we want this design, and the design is a swastika. Is that speech that does does the the whoever is in charge of it of the license plate, do they have to accept - - -
MR. GEORGE: I don't believe the State can discriminate against the people who want to have that design - - -
JUSTICE GINSBURG: So they could have the swastika. And suppose somebody else says, I want to have "Jihad" on my license plate. That's okay, too?
MR. GEORGE: Vegan?
JUSTICE GINSBURG: Jihad.
MR. GEORGE: Jihad. Jihad on the license plate? Can be there is obviously a court of appeal a district court from Ohio in which "Infidels" was held to be the State
JUSTICE KENNEDY: What is your answer in this case as to Justice Ginsburg's hypothetical? Yes or no, must the State put those symbols or messages on the plates at the request of the citizen? Yes or no?
MR. GEORGE: Yes.
This prospect seemed worrisome. But seemingly equally worrisome was the prospect of absolute government discretion manifested by the recurring hypothetical of a government allowing "Vote Republican" but not "Vote Democratic" on the specialty plates, a situation that is arguably consistent with Summum's interpretation of government speech. Perhaps Sotomayor's suggested "hybrid speech" may be a compromise. Or less likely, the Court could further clarify public forum and limited (designated) public forum doctrine.
Thursday, March 19, 2015
The Ninth Circuit this week upheld a county's decision to reject an ad critical of Israel (and U.S. support for Israel) on the side of a Metro bus against a First Amendment challenge. The ruling says that the bus side is a limited public forum, subject to a lower level of scrutiny--a holding at odds with holdings in other circuits in similar cases--and concluded that the county's rejection of the ad met that lower standard.
We posted just last week on SEPTA's (Southeastern Pennsylvania) rejection of an anti-Muslim ad--and a district judge's ruling that the rejection violated the First Amendment. Here's our post on a federal case out of New York going the same way; and here's our post on the Sixth Circuit, moving in the opposite direction.
King County, Washington, which runs Metro's bus advertising program through a contract with a private company, has a policy that prohibits ads with certain content (ads for alcohol and tobacco, adult movies, video games for mature audiences, and the like). The policy also has two catch-all "civility clauses" that prohibit material that would foreseebly result in disruption of the transportation system or incite a response that threatens public safety.
SeaMAC, a non-profit opposed to U.S. support for Israel, proposed a Metro ad that read:
ISRAELI WAR CRIMES
YOUR TAX DOLLARS AT WORK
The county initially approved the ad. But a local television report on the ad provoked a massive hostile, even threatening, response, which overwhelmed the Metro call center and employees' e-mails and caused many customers to express safety concerns.
Soon after the story ran, but before Metro ran SeaMAC's ad, two pro-Israeli groups submitted their own ads:
PALESTINIAN WAR CRIMES
YOUR TAX DOLLARS AT WORK
And (with a picture of Hitler):
IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE,
SUPPORT THE CIVILIZED MAN
Given the hostile reaction to SeaMAC's ad, the county rejected both groups' ads under one of the civility clauses, and SeaMAC sued.
The Ninth Circuit ruled that the side of Metro buses was a limited public forum (not a public forum or designated public forum), based on the pre-screening process for ads, the county's prior implementation (it had not categorically accepted ads, and it had rejected some), and the nature of the side of a bus (the purpose of which was to raise revenue through ad sales).
The court recognized that this put it at odds with other circuits that have held that bus sides were a designated public forum (subject to strict scrutiny). But it said that those courts made a mistake:
Some of those courts, in our view, mistakenly concluded that if the government opens a forum and is willing to accept political speech, it has necessarily signaled an intent to create a designated public forum. Neither the First Amendment nor the Supreme Court's public forum precedent impose that categorical rule.
The court went on to rule that the county's decision was reasonable and viewpoint neutral, and therefore valid.
The dissent argued that the sides of Metro's buses were a designated public forum, subject to strict scrutiny, that the civility clause gave the county too much discretion, and that the county's decision (in light of the hostile reaction to SeaMAC's ad) raised heckler veto problems. The dissent would have remanded the case for determination whether the county's decision satisfied strict scrutiny.
Wednesday, March 18, 2015
The Supreme Court of New Jersey has found a section of the state's "bias intimidation" statute, NJ 2C:16-1, unconstitutional in its opinion in State v. Pomianeck. Subsection a (3) of the statute provides that bias intimidation includes an offense committed:
under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.
The defendant was convicted of violating subsection 3. He and another public employee, both white, tricked another employee, who was black, into going into a wide steel storage cage, then locked the door, made a "banana" remark and laughed, and after a few minutes opened the cage door. The defendant was convicted of official misconduct as well as petty disorderly persons’ offenses of harassment by alarming conduct and harassment by communication, in addition to subsection (a)(3) of the bias intimidation statute.
On appeal challenging the constitutionality of subsection (a)(3) , the New Jersey appellate court found that the subsection's focus on the victim's reasonable belief - - - rather than the defendant's actual state of mind - - - was a violation of the First Amendment, relying on cases such as Virginia v. Black and R.A.V. v. St. Paul. The appellate court therefore found the statute should be construed to include a mens rea and remanded the case.
New Jersey's highest court unanimously found that the appellate court exceeded its bounds by interpreting the statute to include a mens rea. It then proceeded to the constitutional issues, noting that the first inquiry was "whether the line separating lawful from criminal conduct in subsection (a)(3) is so vague that a reasonable person would not have fair notice when that line is crossed," and thus would not meet the "due process demands of the Fourteenth Amendment.":
The answer raises interrelated First Amendment concerns. Nevertheless, only if subsection (a)(3) can survive due process scrutiny is it necessary to engage in a First Amendment analysis.
The New Jersey Supreme Court concluded that subsection (a)(3) could not survive due process because it hinged on the victim's reasonable belief:
Of course, a victim’s reasonable belief about whether he has been subjected to bias may well depend on the victim’s personal experiences, cultural or religious upbringing and heritage, and reaction to language that is a flashpoint to persons of his race, religion, or nationality. A tone-deaf defendant may intend no bias in the use of crude or insensitive language, and yet a victim may reasonably perceive animus. The defendant may be wholly unaware of the victim’s perspective, due to a lack of understanding of the emotional triggers to which a reasonable person of that race, religion, or nationality would react. Nothing in the history of the bias-intimidation statute suggests that the Legislature intended to criminalize conduct through the imposition of an amorphous code of civility or criminalize speech that was not intended to intimidate on the basis of bias. It bears repeating that no other bias-intimidation statute in the nation imposes criminal liability based on the victim’s reasonable perceptions.
The court thus found subsection (a)(3) unconstitutional under due process doctrine requiring adequate notice and lack of vagueness: the defendant "was convicted not based on what he was thinking but rather on his failure to appreciate what the victim was thinking" The court therefore did not reach the First Amendment issue. The court emphasized that the "twin pillars of the bias- intimidation statute -- subsections (a)(1) and (a)(2) of N.J.S.A. 2C:16-1 -- still stand."
The ruling could also be relevant to a more famous New Jersey bias intimidation conviction of Dharun Ravi of the victim, his Rutgers roommate Tyler Clementi, as the NYT reports.
The Fourth Circuit ruled in Greenville County Republican Party v. Greenville County Election Commission that various challenges to South Carolina's municipal election procedures lacked justiciability and dismissed the case.
South Carolina law required municipalities to adopt by ordinance either a partisan or nonpartisan way of nominating candidates for public office in municipal elections. If a municipality selected the partisan method, South Carolina law allowed a certified political party to select one of three procedures: a party primary, a party convention, or a petition. Nomination by party primary required an open primary. Nomination by convention required a 3/4 super-majority vote of the party membership.
The Greenville County Republican Party Executive Committee, an affiliate of the state Republican party but not itself a certified political party, challenged these procedures under the First, Fifth, and Fourteenth Amendments. The Committee sought declaratory and injunctive relief, and monetary damages for having to implement the procedures in prior elections.
As the case worked its way up and down, Greenville changed its ordinance to nominate candidates using a nonpartisan procedure.
The Fourth Circuit ruled that this mooted the Committee's claims for prospective relief. In particular, the court said that the County's decision was not capable of repetition but evading review, because the Committee didn't satisfy its burden of establishing "a reasonable expectation" that it wouldn't go back to the partisan method of nominating candidates for future elections.
As to the surviving claims, the court held that the Committee lacked standing. The court said that the Committee didn't suffer any harm from the super-majority requirement for convention-nominated candidates; instead, the state party suffered that harm--making the Committee's claim a nonjusticiable third-party claim. The court also held that the Committee couldn't satisfy the traceability prong of standing, because it was the state party, not Greenville, that elected to use the open primary system. (The state Republican Party was at one time party to the suit, but withdrew.)
The ruling ends this suit, and, in the wake of Greenville's decision to use a nonpartisan nominating process, almost certainly ends any challenges to Greenville's old partisan process.
March 18, 2015 in Association, Cases and Case Materials, Elections and Voting, Equal Protection, Fifth Amendment, First Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Monday, March 16, 2015
Over at Jotwell, First Amendment scholar Lyrissa Barnett Lidsky discusses Amy Gajda's just-published book The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.
Professor Lidsky provides the provocative thesis of Gajda's book: it's the fault of quasi-journalists and paparazzi that the First Amendment is losing its luster, or at least its ability to protect what might be called "real journalists."
Lidsky's last paragraph provides a terrific insight - - - as we wait for the United States Supreme Court's opinion in Williams-Yulee v. The Forida Bar - - - linking how elected state judges might feel about the press given their own experiences.
Although she never makes the point explicitly, Gajda’s book is fundamentally an exercise in legal realism. Even though the scope of constitutional rights is not supposed to vary with the winds of public opinion, The First Amendment Bubble documents that the scope of press rights has changed as judges have perceived changes in the press. As she amply and comprehensively demonstrates, trial court judges seem more hostile to the media and more favorable to privacy claimants than their appellate brethren. This hostility may reflect the fact that trial judges, especially state judges, are more likely to have been elected to their positions than their appellate brethren and are thus more likely to be alert to shifts in public opinion. Perhaps the starting point, then, for changing judicial opinions is changing public opinion. To do this, journalists must change their slipshod and sensationalist practices. Let’s hope they can.
Looks like a terrific read, especially for those who might not agree that journalists have lost their integrity any more than lawyers (or judges) may have.
Friday, March 13, 2015
The ACLU filed suit this week on behalf of several media and human rights organizations challenging the NSA's "upstream surveillance" program. The plaintiffs argue that the program violates the First and Fourth Amendments, and that NSA has implemented upstream surveillance in violation of the FISA Amendments Act of 2008. (H/t reader Darren Elliot.)
Through upstream surveillance, a program disclosed by Edward Snowden after the Court handed down Clapper v. Amnesty International (more on that below), the NSA intercepts, collects, and searches all of Americans' international communications (e-mails, web-browsing, search engine queries, and the like). The NSA intercepts communications through devices directly on the internet backbone (with the help of providers like Verizon and AT&T), and it searches that material using keywords associated with NSA targets--that is, anyone outside the United States believed likely to communicate "foreign intelligence information."
The Supreme Court dismissed the last major suit of this type. The Court said that the plaintiffs in Clapper v. Amnesty International lacked standing to challenge NSA surveillance under the FISA Amendments Act (50 USC Sec. 1881a), because they didn't allege that they'd actually be targets of surveillance (only that they'd likely be targets).
This suit addresses the standing problem by alleging that upstream surveillance has already targeted them--because upstream surveillance is up and running and collects, in a drag-net kind of way, the kinds of communications that they engage in. And by including Wikimedia (with all its international internet connections), the ACLU ensures that at least one plaintiff has certainly been a target of this program.
In his decision in American Freedom Defense Initiative (“AFDI”) v. Southeastern Pennsylvania Transportation Authority (“SEPTA”), federal district judge Mitchell Goldberg has granted a preliminary injunction in favor of AFDI and found SEPTA's anti-disparagement standard for advertising on its buses, and its rejection of the proffered AFDI advertisement, violates the First Amendment.
AFDI is a controversial organization that seeks to place anti-Islamic advertisements in a variety of public venues. In New York City, a federal judge found the Metropolitan Transit Authority's initial rejection of the advertisements under its (since amended) "civilty standard" to be unconstitutional and the advertisements appeared, causing some NYC residents to engage in "more speech" in reaction to the advertisements. On the contrary, the Sixth Circuit found the rejection of similar advertisements in southern Michigan buses by the governmental authority SMART to be constitutional under its policy prohibiting several categories of advertising including "political or political campaign advertising."
In Philadelphia, SEPTA's policy prohibited "Advertising that tends to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability." The rejected advertisement read “Islamic Jew-Hatred: It’s in the Quran. Two Thirds of All US Aid Goes to Islamic Countries. Stop the Hate. End All Aid to Islamic Countries” and contained a relevant image captioned "Adolf Hitler and his staunch ally, the leader of the Muslim world, Haj Amin al-Husseini.” (The opinion also contains an image of the advertisement).
Importantly, the parties stipulated that "over the past four years, SEPTA has accepted a number of concededly public issue advertisements on such topics as teacher seniority, fracking and contraceptive use."
Judge Goldberg found that the advertising space on the buses constituted a designated public forum, rejecting SEPTA's rather weak argument that it was a nonpublic forum. The central issue, however, was whether the rejection of the advertisement was content (and perhaps viewpoint) based. The judge found that it was, analogizing predictably to R.A.V. v. City of St. Paul (1992):
In light of the Supreme Court’s holding in R.A.V., I find that SEPTA’s anti- disparagement standard is a content-based restriction. Like the ordinance in R.A.V., the anti- disparagement standard permits disparaging advertisements so long as they are not addressed to one of the disfavored topics which are specifically enumerated. In fact, outside of these specified topics, SEPTA’s standards could permit advertisements which disparage, for example, political affiliation or union membership. Thus, in selectively prohibiting speech based upon the subject addressed, SEPTA’s anti-disparagement standard constitutes a content-based restriction.
The judge then easily found that SEPTA's policy and its application could not survive strict scrutiny.
Whether or not SEPTA will appeal - - - or chose to revise its policy as NYC's MTA did - - - remains to be seen.
Wednesday, March 11, 2015
In its relatively brief opinion in Susan B. Anthony List v. Driehaus, the Sixth Circuit seemingly brought an end to the extensive litigation that arose from Stephen Dreihaus's 2010 campaign during which the Susan B. Anthony list, an anti-abortion organization wanted to put up a billboard criticizing Driehaus's vote in favor of "Obamacare," reading "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." But the billboard never went up because the advertising company that owned the billboard space refused to put up the advertisement after Driehaus's counsel threatened legal action against it. Driehaus filed a complaint with the Ohio Elections Commission against SBA List claiming that the advertisement violated two sections of Ohio's false-statement in elections statute. SBA List then sued, seeking declaratory and injunctive relief, based on a First Amendment challenge to the statute. Recall that the United States Supreme Court unanimously reversed the Sixth Circuit's finding that federal courts had no Article III power to hear the case.
The First Amendment issues, including Dreihaus' counterclaim for defamation, were thus remanded. The federal district judge found the Ohio election provision violated the First Amendment. In considering the defamation claim, which the judge also foreclosed on the basis of the First Amendment, the Sixth Circuit found that although the district judge's "categorical proclamation" that “[A]s a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation" was "a misstatement of First Amendment defamation law." However, the Sixth Circuit affirmed the district judge's grant of summary judgment on the basis that Driehaus could not satisfy the elements of the state law defamation tort. Specifically, Driehaus could not prove that the statements by SBA were false: "it is enough that the statements had some truth, were substantially true, or were subject to differing interpretations" and Driehaus could not show any basis for a finding that the statements were made with actual malice.
Thus after extended litigation it now seems that there remain few, if any, bars to "falsehoods" in campaigns.
Monday, March 9, 2015
In its opinion today in Survivors Network of Those Abused by Priests, Inc. v. Joyce, the Eighth Circuit found that Missouri's "House of Worship Protection Act," Mo. Rev. Stat. § 574.035, violates the First Amendment.
The statute provides that a person commits the crime of disrupting a house of worship if he or she "[i]ntentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services."
The panel's unanimous and relatively brief opinion, reversing the district judge, found fault with the statute as a content-based regulation, focusing as it does on "profane discourse, rude or indecent behavior." The panel rejected the state's argument that it was a mere time, place, or manner regulation subject to a lower level of scrutiny. Instead, the Eighth Circuit quoted the Court's decision in McCullen v. Coakley last Term that a statute "would not be content neutral if it were concerned with undesirable effects that arise from 'the direct impact of speech on its audience' or '[l]isteners' reactions to speech.'"
The Eighth Circuit then easily found that the content based statute did not survive strict scrutiny: "Even if the government interest in protecting the free exercise of religion were viewed as compelling, however, the content based prohibitions the Act places on profane or rude speech are not necessary to protect that freedom." There were content neutral alternatives to protect houses of worship from disruption, such as noise regulations and there was nothing in the record showing that any worship services have been disrupted in Missouri.
Thus, the facial challenge to the statute, brought by SNAP - - - a non profit organization which advocates for victims of sexual abuse by clergy and members who "regularly communicate their messages outside of a Catholic friary in St. Louis where a priest accused of child molestation resides" - - - was successful.
It does seem as if Missouri could amend the statute to pass constitutional scrutiny by excising the content-based language and leaving the noise related language.
Sunday, March 8, 2015
Over at the Los Angeles Times in an Op-Ed, ConLawProf Ronald J. Krotoszynski Jr. argues that present First Amendment doctrine would preclude the famous Selma march being commemorated on its 50th anniversary today.
Krotoszynski contends that it would now be "impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway" and that under "contemporary legal doctrine, the Selma protests would have ended March 8, 1965."
He faults the reshaping of public forum doctrine and time, place or manner restrictions so that "protests" are now relegated to "designated speech zones." He highlights the recent litigation regarding the First Amendment rights of protestors in Ferguson, which, although successful on behalf of the protestors, was a success that was both delayed and partial.
Krotoszynski's op-ed is an important reminder that while voting rights and equality are integral to the remembrance of Selma as President Obama elucidated in his speech, "Selma's main lesson" might also be that "taking to the streets and other public spaces in protest is central to our democracy."
Saturday, February 28, 2015
In its opinion in Matthews v. City of New York, the Second Circuit upheld the First Amendment rights of a police officer in a unanimous panel opinion, authored by Judge Walker.
The court reversed the district judge's grant of summary judgment in favor of the City that had concluded that the police officer, Craig Matthews spoke as a public employee, not as a citizen, and that his speech was thus not protected by the First Amendment.
At issue is the application of the closely divided Garcetti v. Ceballos and its "clarification" in the United States Supreme Court's 2014 decision in Lane v. Franks ,regarding the "scope of employment" exclusion for First Amendment protection. Matthews alleged that he was retaliated against for speaking about an alleged quota system mandating the number of arrests, summons, and stop‐and‐frisks that police officers must conduct. These are the same policies that have been so controversial in NYC and have been considered by the Second Circuit.
In February 2009, Matthews, believing that the quota system was damaging to the NYPD’s core mission, reported its existence to then‐Captain Timothy Bugge, the Precinct’s commanding officer at that time. In March and April of 2009, Matthews again reported the quota system’s existence to Captain Bugge, and, in May 2009, Matthews reported the same to an unnamed Precinct executive officer.
In January 2011, Matthews met with then‐Captain Jon Bloch, the Precinct’s new commanding officer, and two other officers in Captain Bloch’s office. Matthews told them about the quota system and stated that it was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” and that it “was having an adverse effect on the precinct’s relationship with the community.”
The Second Circuit panel held that "Matthews’s speech to the Precinct’s leadership in this case was not what he was “employed to do,” unlike the prosecutor’s speech in Garcetti." Importantly, "Matthews’s speech addressed a precinct‐wide policy. Such policy‐oriented speech was neither part of his job description nor part of the practical reality of his everyday work."
The court also considered whether the speech had a "civilian analogue," discussing its previous opinion in Jackler v. Byrne, a 2011 opinion in which the panel had also found the speech of a police officer protected by the First Amendment. In part, the panel's conclusion rested on the fact that "Matthews reported his concerns about the arrest quota system to the same officers who regularly heard civilian complaints about Precinct policing issues."
In holding that Matthews' speech is protected by the First Amendment, the opinion may be further indication that the grip of Garcetti on employee speech is loosening. It is not only Lane v. Franks, in which the United States Supreme Court unanimously reversed the Eleventh Circuit's summary opinion and the Second Circuit's previous opinion in Jackler, but cases such as the Third Circuit's Flora v. Luzerne County decided last month. This is not to say that Garcetti does not remain a formidable obstacle to any First Amendment claim by a public employee, but only that the obstacle is becoming less insurmountable.
Tuesday, February 24, 2015
A panel of the Second Circuit issued its amended opinion in Garcia v. Does now holding that the New York City police officers do have qualified immunity in the First Amendment suit arising from plaintiffs' arrests for participating in a demonstration in support of the Occupy Wall Street movement.
Recall that in December, the full Second Circuit granted review of the case. In today's opinion, the court noted that it had withdrawn the panel opinion, was granting the petition for rehearing, and now reversing the district judge and remanding the case with instructions to dismiss the complaint.
Thus, the panel now finds that qualified immunity can be - - - and is here - - - established at the pleading stage, citing Wood v. Moss (2014), noting that "qualified immunity protects officials not merely from liability but from litigation, that the issue should be resolved when possible on a motion to dismiss, before the commencement of discovery, to avoid subjecting public officials to time consuming and expensive discovery procedures." This echoes Judge Livingston's dissent in the original panel opinion.
The underlying First Amendment issue was whether defendant police officers "implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law" and then arrested them without "fair warning." Today's panel opinion now explains:
On the face of the Complaint, the officers were confronted with ambiguities of fact and law. As a matter of fact, the most that is plausibly alleged by the Complaint and the supporting materials is that the police, having already permitted some minor traffic violations along the marchers’ route, and after first attempting to block the protesters from obstructing the vehicular roadway, retreated before the demonstrators in a way that some of the demonstrators may have interpreted as affirmatively permitting their advance. Whether or not such an interpretation was reasonable on their part, it cannot be said that the police’s behavior was anything more than – at best for plaintiffs – ambiguous, or that a reasonable officer would necessarily have understood that the demonstrators would reasonably interpret the retreat as permission to use the roadway.
This "all doubts resolved in favor of the defendants" stance on a motion to dismiss for qualified immunity illustrates how very high the bar has become for protestors raising a First Amendment claim.
[image of Brooklyn Bridge via]
Monday, February 23, 2015
The Fifth Circuit last week granted a school district's petition for rehearing en banc in a case involving off-campus student speech. The grant means that the full Fifth Circuit will get a crack at the issue whether and how off-school student speech critical of a school employee, but not otherwise disrupting the school, is protected under the First Amendment.
The case, Bell v. Itawamba County School Board, arose when a high school student was suspended for recording and posting on his Facebook page a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at the school. The student, Taylor Bell, wrote the song, recorded it, and posted it off campus, at facilities unrelated to the school. While students heard the song, they shouldn't have heard it at school--no cell phones, no Facebook on campus--and it didn't cause any disruption or interference with school activities. So the majority on the three-judge panel reversed the district court and ruled for Bell:
[T]he Supreme Court's "student-speech" cases, including Tinker, do not address students' speech that occurs off campus and not at a school-approved event. The Court has not decided whether, or, if so, under what circumstances, a public school may regulate students' online, off-campus speech, and it is not necessary or appropriate for us to anticipate such a decision here. Even if Tinker were applicable to the instant case, the evidence does not support the conclusion, as required by Tinker, that Bell's Internet-posted song substantially disrupted the school's work and discipline or that school officials reasonably could have forecasted that it would do so.
Given that the Court hasn't ruled on the issue, this may be one to watch.
Tuesday, February 10, 2015
Newly elected Illinois Governor Bruce Rauner (R) late yesterday issued an executive order that halted enforcement of the fair share provisions in state union contracts with state employees. At the same time, he filed a preemptive federal lawsuit seeking a declaratory judgment that his EO was constitutional.
The pair of moves (especially the unusual lawsuit) can only be understood as a full frontal assault on whatever is left of public sector fair share under the First Amendment after last Term's ruling in Harris v. Quinn. (And there's not much left.) Indeed, the lawsuit seems specifically engineered only to put Abood, the 1977 case upholding public sector fair share requirements, before the Court again and to topple it once and for all.
"Fair share" fees are those fees charged to nonunion members in a union shop. They're designed to cover union expenses that benefit all employees (union or not), like collective bargaining. The Supreme Court ruled in Abood in 1977 that fair share fee requirements do not violate the First Amendment (as compelled speech and association), because they are justified in order to avoid free-riding by nonunion members (that is, nonunion members who benefit from the union's activities, but fail to pay union dues) and to promote labor peace. Without fair share fee requirements, public sector unions could be hard-pressed to gain membership or collect any fees. That's because without fair share requirements every individual employee might rationally think that he or she could duck out of union membership and fees and free-ride on the union's bargaining. If enough employees think this, the unions could disappear.
The Supreme Court in recent years has chipped away at Abood, first in Knox v. Service Employees (2012) and then in Harris v. Quinn (2013). Abood's definitely holding on by just a string, but the Court hasn't specifically overruled it.
Governor Rauner's actions seem designed to do just that. Rauner's EO, halting fair share enforcement, is based on his worry that "the collective bargaining agreements force some employees to subsidize and enable union activities that they do not support," and "Illinois state employee unions are using compelled "fair share" fees to fund inherently political activities to influence the outcome of core public sector issues."
But Illinois law permits the collection of fair share fees only for nonunion members' "proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment . . . ." 5 ILCS 315/6. It does not permit collection of fair share fees for other activities, like political advocacy. Thus, Illinois law is fully constitutional and comports with Abood. (Again, even if Abood is on its way out, it's still the law of the land.) Still, Governor Rauner's EO takes it head-on.
To punctuate the EO, Governor Rauner then filed a preemptive suit against the unions in federal court seeking declaratory relief that his EO is constitutional. This sounds like a nonjusticiable political question, or like Rauner lacks standing, or like the whole thing isn't yet ripe. (Shouldn't the unions be suing?) But Rauner has an answer for this (strange as it sounds): The EO renders null and void the fair share provisions in the state's collective bargaining agreements, thus creating a controversy between the Governor and unions.
The aggressive EO and the strangeness of the suit can only mean that Governor Rauner is taking on public sector fair share and Abood full force--that he's doing it because he wants his name on the case overturning Abood.
Tuesday, February 3, 2015
The Supreme Court of Canada ruled last week that the Saskatchewan Public Service Essential Services Act (PSESA), which limited the ability of public sector employees who perform essential services to strike, violated the Canadian Charter of Rights and Freedoms. At the same time, the court upheld an act that increased the level of required written support, and reduced the time period for receiving support, to certify a union.
In striking the PSESA, the court held that the Canadian Charter of Rights and Freedoms, Section 2(d), free association, protects a fundamental right to strike, and that the PSESA wasn't saved by Section 1, the "reasonable limits" provision. The court wrote that the right to strike is "an indispensable component of" the right to bargain collectively, and "essential to realizing" the values of "human dignity, equality, liberty, and respect for the autonomy of the person and the enhancement of democracy." The court also noted that "international obligations also mandate protecting the right to strike . . . ."
The court said that the breach of Section 2(d) wasn't justified by Section 1, which "guarantees the rights and freedoms set out in [the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The court wrote that the maintenance of essential public services is obviously "pressing and substantial," but that the PSESA wasn't sufficiently tailored. In particular, the court said that the PSESA allows too much given in defining "essential services" and the employees who perform them.
Two justices dissented, arguing that the political branches should have the flexibility to determine the scope of workers' ability to strike.
Monday, February 2, 2015
The D.C. Circuit on Friday affirmed an FTC order that required POM Wonderful, LLC, to support future ads with claims of health benefits with one scientific study. But at the same time, the court said that a Commission order requiring two studies went too far.
The case, POM Wonderful, LLC v. FTC, arose out of a Commission finding that POM Wonderful engaged in false, misleading, and unsubstantiated representations in its advertisements in violation of the FTC Act. In particular, the Commission found that POM Wonderful made unsubstantiated claims that regular consumption of POM products could treat, prevent, or reduce the risk of various ailments, including heart disease, prostate cancer, and erectile dysfunction.
The full Commission voted to hold POM Wonderful and associated parties liable for violating the FTC Act and order them to stop making misleading and inadequately supported health claims. The Commission's order also barred POM Wonderful from running future ads asserting that its products treat or prevent any disease unless it has at least two randomized, controlled human clinical trials demonstrating statistically significant results.
The D.C. Circuit ruled that POM Wonderful's ads weren't protected by the First Amendment (because they were false or misleading), and that the Commission therefore had authority to punish or prohibit them. The court also said that the First Amendment allowed the Commission to require one scientific study to support any future health-benefit claims:
Requiring RCT substantiation as a forward-looking remedy is perfectly commensurate with the Commission's assessment of liability for petitioners' past conduct: if past claims were deceptive in the absence of RCT substantiation, requiring RCTs for future claims is tightly tethered to the goal of preventing deception. To be sure, the liability determination concerned claims about three specific diseases whereas the remedial order encompasses claims about any disease. But that broadened scope is justified by petitioners' demonstrated propensity to make deceptive representations about the health benefits of their products, and also by the expert testimony supporting the necessity of RCTs to establish causation for disease-related claims generally. For purposes of Central Hudson scrutiny, then, the injunctive order's requirement of some RCT substantiation for disease claims directly advances, and is not more extensive than necessary to serve, the interest in preventing misleading commercial speech.
But the court rejected the order for two studies. That's because the Commission failed "adequately to justify a categorical floor of two RCTs for any and all disease claims."
The court rejected POM Wonderful's related statutory claims.
Thursday, January 29, 2015
Recall our discussion last August about the decision of the University of Illinois at Urbana-Champaign officials to rescind the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin based on his "tweets" on the subject of Gaza.
Salaita has now filed a 39 page complaint in federal court. The first count of the complaint alleges the First Amendment violation:
In sending "tweets" regarding Israel and Palestine, from his personal Twitter account from his home in Virginia in the summer of 2014, Plaintiff acted in his capacity as a citizen, and not pursuant to any official university duties. His tweets never impeded his performance of his duties as a faculty member, or the regular operation of the University. The subject matter of the tweets-Israel and Palestine-is a matter of public concern, and Professor Salaita's comments about the conflict were made in an effort to contribute to the public debate. Such conduct is protected by the First Amendment of the United States Constitution.
Plaintiff’s protected speech, and the viewpoint he expressed in those tweets, though greatly distorted and misconstrued by Defendants, was a motivating factor in defendant's decision not to recommend Professor Salaita’s appointment in the rejection of Professor Salaita 's appointment to the University faculty.
The second count alleges a procedural due process violation. Most of the other counts allege state law violations including promissory estoppel, breach of contract, intentional infliction of emotional distress, and an interesting "spoilation of evidence" against Chancellor Phyllis Wise for allegedly destroying a two page document given to her by a donor.
ConLawProfs teaching First Amendment this summer might find the complaint makes for a good in-class discussion or problem.
Monday, January 26, 2015
The Brennan Center's Daniel Weiner recently released Citizens United Five Years Later, the Center's latest in an outstanding series of reports on Citizens United, campaign spending, and the 2014 elections.
Weiner writes that the case's biggest impact hasn't been increased corporate spending (although corporate spending has increased). Instead, Citizens United and other cases have led to a huge increase in spending by super-wealthy mega-donors:
Perhaps most important, the singular focus on the decision's empowerment of for-profit corporations to spend in (and perhaps dominate) our elections may be misplaced. Although their influence has increased, for-profit corporations have not been the most visible beneficiaries of the Court's jurisprudence. Instead--thanks to super-PACs and a variety of other entities that can raise unlimited funds after Citizens United--the biggest money (that can be traced) has come from an elite club of wealthy mega-donors. These individuals--fewer than 200 people and their spouses--has bankrolled nearly 60 percent of all super-PAC spending since 2010.
And while spending by this wealthy club has exploded, we have seen neither the increased diversity of voices that the Citizens United majority imagined, nor a massive upsurge in total election spending. In fact, for the first time in decades, the total number of reported donors has begun to fall, as has the total contributed by small donors (giving $200 or less). In 2014, the top 100 donors to super-PACs spent almost as much as all 4.75 million small donors combined.
A sobering picture.
Weiner's "can be traced" parenthetical gets some attention in the report, too, where Weiner discusses dark money, "independent" groups, and reporting requirements (or the lack of reporting requirements)--all features of a post-Citizens United world.
Tuesday, January 20, 2015
The United States Supreme Court heard oral arguments in Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule of judicial conduct prohibiting the personal solicitation of campaign contributions in a judicial election.
Recall that the Florida Supreme Court held that Florida Code of Judicial Conduct, Canon 7C(1) (substantially similar to Canons 4.1(A)(8) and 4.4 of the ABA Model Code of Judicial Conduct), satisfied strict scrutiny, finding that there were two compelling governmental interests (preserving the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary) and that the provision was narrowly tailored to serve these interests (the prohibition of direct fundraising nevertheless allows for the establishment of "campaign committees" to raise funds). The Florida Supreme Court's opinion also pointedly noted that federal "judges have lifetime appointments and thus do not have to engage in fundraising" were divided on the constitutionality of the canon, while state judges were not.
In the arguments before the life-tenured Justices today, the problem of line-drawing was pronounced. The fact that the Florida rule was a compromise that allowed judicial campaigns to establish committees to solicit funds and allowed the candidate to know who had contributed and allowed the candidate to write thank you notes called into question whether the canon was narrowly tailored. But, as Justice Kagan noted, that might mean that the state would simply broaden the proscriptions, to include thank you notes for example, and asked whether that would be constitutional. Counsel for the petitioner ultimately answered in the negative, linking the election to the availability of money.
At the heart of this issue is whether judicial elections are like other elections or whether they are distinctly judicial.
Justice Ginsburg, who is decidedly in the camp that judicial elections are different, essentially urged her position at the beginning of the arguments ("the First Amendment allows the State to do things with respect to the election of judges that it wouldn't allow them to do with respect to the election of members of the legislature.")
Chief Justice Roberts seemingly leaned toward equating judicial and political elections, stating that "it's self-evident, particularly in judicial races" that "prohibiting a form of raising funds is to the great advantage of the incumbent" because the only way "incumbents are going to be challenged if you have somebody who can get their own distinct message out." Later he stated that the "fundamental choice was made by the State when they said we're going to have judges elected." This echoes Justice O'Connor's concurring opinion in Republican Party of Minnesota v. White, (2002).
Yet the issue of the coercion of the people being solicited, including attorneys as I have previously discussed, surfaced repeatedly. As Justice Sotomayor candidly revealed:
It's very, very, very rare that either by letter or by personal call that I ask a lawyer to do something, whether it's serve on a committee, help organize something, do whatever it is that I'm asking, that that lawyer will say no. Isn't it inherent in the lawyer/judge context that people are going to say yes?
Whether the Court "says yes" to the ability of a state to ban direct solicitation by judicial candidates will most likely result in a closely divided opinion.
In its unanimous opinion today in Holt (Muhammad) v. Hobbs the Court decided that the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, RLUIPA, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.
The Court's conclusion is predictable from the tenor of the oral arguments. Writing for the Court, Justice Alito found that Holt/Muhammad easily met his burden of showing that the beard ban substantially burdened his exercise of religion under RLUIPA, after which the burden shifted to the Department of Correction to show that its refusal to allow petitioner to grow a 1⁄2- inch beard “(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental interest” under RLUIPA."
The Court rejected the Department of Correction's beard ban as the least restrictive way of furthering prison safety and security including hiding contraband (an argument that was "hard to take seriously" in the context of the 1/2 inch beard) and concealing identities (an argument that suffered in comparison to other institutions and the allowance of 1/4 inch beards and mustaches).
Justice Alito's 16 page opinion for the Court is a model of clarity and concision. It does beg the question, however, of why this was not the District Judge's opinion or the Eighth Circuit's opinion. As we previously discussed, the odds of this case getting before the Court were incredibly high, but the underlying pro se litigation exemplifies the difficulties of prison inmates vindicating their rights.
Indeed, Justice Sotomayor wrote separately to stress the role deference to prison administrators that should be afforded by courts. Prison officials must offer a "plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them," rather than adopt policies based on "mere speculation." Again, this begs the question of the reliance by the lower courts on the prison's arguments.
Finally, the very brief concurring opinion by Justice Ginsburg, and joined by Justice Sotomayor, distinguished the much more contentious Hobby Lobby:
Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that understanding, I join the Court’s opinion.
Thus, Justice Ginsburg makes clear that she is not opposed to religious accommodation per se, even under the strict scrutiny standard, when the rights of others are not part of the analysis.