Friday, October 14, 2016

Ninth Circuit Upholds California's Disclosure Statute Regulating Crisis Pregnancy Centers

In its opinion in National Institute of Family and Life Advocates v. Harris, the Ninth Circuit rejected a First Amendment challenge to the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, the FACT Act. The FACT Act mandates that licensed pregnancy-related clinics, including crisis pregnancy centers that specifically discourage abortion and employ "deceptive advertising and counseling practices" related to the availability of abortion, disseminate a notice stating the availability of publicly-funded family-planning services that include contraception and abortion.  Additionally, the FACT Act requires unlicensed clinics provide notice that they are not licensed.

Bodleian_Libraries,_Ticket_of_Shanes_Castle,_announcing_Shanes_Castle_masqueradeRecall that mandatory disclosures by pregnancy crisis centers has previously been considered in Circuit opinions.  In The Evergreen Association, Inc. d/b/a Expectant Mother Care Pregnancy Centers v. City of New York, a divided panel of the Second Circuit in 2014 ruled that only one of the three major provisions of NYC's Local Law 17 seeking to mandate disclosures by pregnancy crisis centers was constitutional.  The en banc Fourth Circuit has also rules: First, in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore, it reversed the granting of a preliminary injunction finding fault with the application of the summary judgment standard by the district judge, and second in Centro Tepeyac v. Montgomery County,  affirmed a finding that one of the mandated disclosures was constitutional and the other was not.

The Ninth Circuit opinion, authored by Judge Dorothy W. Nelson, rejected the argument that the mandated notice of other services available for pregnancy to be afforded by licensed facilities (the "Licensed Notice")  should be subject to strict scrutiny because "all" content-based regulations should be subject to strict scrutiny, notwithstanding  the United States Supreme Court's decision in Reed v. Town of Gilbert (2015).  Judge Nelson's opinion noted that abortion regulation and the practice of medicine have been subject to "reasonable regulation" even when speech is involved. Instead, the Ninth Circuit unanimous panel took as precedent its ruling in Pickup v. Brown regarding prohibition of sexual conversion therapy and the concept of "professional speech":

We now turn to the correct level of scrutiny to apply to the Licensed Notice and conclude that under our precedent in Pickup, intermediate scrutiny applies. Licensed Clinics are not engaging in a public dialogue when treating their clients, and they are not “constitutionally equivalent to soapbox orators and pamphleteers.” Pickup. Thus, it would be inappropriate to apply strict scrutiny. And, unlike in Pickup, the Licensed Notice does not regulate therapy, treatment, medication, or any other type of conduct. Instead, the Licensed Notice regulates the clinics’ speech in the context of medical treatment, counseling, or advertising.

Because the speech here falls at the midpoint of the Pickup continuum, it is not afforded the “greatest” First Amendment protection, nor the least.  It follows, therefore, that speech in the middle of the Pickup continuum should be subject to intermediate scrutiny.

 In applying intermediate scrutiny, Judge Nelson found that

California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion. The California Legislature determined that a substantial number of California citizens may not be aware of, or have access to, medical services relevant to pregnancy. * * * *

We conclude that the Licensed Notice is narrowly drawn to achieve California’s substantial interests. The Notice informs the reader only of the existence of publicly-funded family-planning services. It does not contain any more speech than necessary, nor does it encourage, suggest, or imply that women should use those state-funded services. The Licensed Notice is closely drawn to achieve California’s interests in safeguarding public health and fully informing Californians of the existence of publicly-funded medical services. And given that many of the choices facing pregnant women are time-sensitive, such as a woman’s right to have an abortion before viability, we find convincing the AG’s argument that because the Licensed Notice is disseminated directly to patients whenever they enter a clinic, it is an effective means of informing women about publicly-funded pregnancy services.

Additionally, the panel found that the Unlicensed Notice - - - the mandated disclosure that a facility is not licensed - - - survives every level of scrutiny, even strict scrutiny.

The Ninth Circuit panel opinion acknowledged that it was in agreement with the Second and Fourth Circuits on the Unlicensed Notice provision, but that the Second and Fourth Circuits had applied a higher level of scrutiny to similar mandated disclosures and found that they were not constitutional.

There is thus an arguable split amongst the circuits on the subject of mandated disclosures by so-called pregnancy crisis centers, with the Ninth Circuit's conceptualization of "professional speech" again ripe for a certiorari petition to the United States Supreme Court.

[image via]

October 14, 2016 in Abortion, First Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0)

Tuesday, October 4, 2016

Ninth Circuit Denies En Banc Review in Sexual Conversion Ban Case

In the continuing - - - yet seemingly concluding - - - saga of challenges to the constitutionality of California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit's opinion today in Welsh v. Brown revisited its August opinion upholding the law.  Today's opinion announces that the Ninth Circuit will not rehear the case en banc - - - "no judge of the court" having requested a vote on the petition for rehearing en banc - - - and issues an amended opinion.

The change from the August opinion is slight, adding an example in the opinion's description of the challengers' argument in one paragraph:

Plaintiffs first argue that, under the Establishment Clause, SB 1172 excessively entangles the State with religion. Their argument rests on a misconception of the scope of SB 1172. For example, Plaintiffs assert that Dr. Welch may not “offer certain prayers or quote certain Scriptures to young people” even “while working as a minister for Skyline Church” within “the four walls of the church . . ., while engaging in those religious activities.” The premise of this Establishment Clause argument is mistaken, and the argument fails, because SB 1172 regulates conduct only within the confines of the counselor-client relationship.

[Added language underlined; italics in both opinions].

With such a small revision, it would seem there was little contention about the case.  Recall that Welsh itself is a sequel to Pickup v. Brown, in which the Ninth Circuit declined en banc review (albeit more divisively), to other First Amendment challenges to the California statute. Meanwhile, the Third Circuit in King v. Christie rejected a challenge to New Jersey's similar SOCE-ban statute.  The United States Supreme Court has denied certiorari in both Pickup and King, making prospects for a grant of certiorari in Welch v. Brown rather slim, especially for an eight Justice Court.


 [image via]



October 4, 2016 in Family, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)

Friday, September 30, 2016

Eleventh Circuit Upholds PAC-to-PAC Transfer Ban

The Eleventh Circuit this week rejected a First Amendment challenge to Alabama's ban on PAC-to-PAC political contributions. The ruling upholds Alabama's ban and deepens a split in the circuits.

The Alabama Democratic Conference, an Alabama PAC perhaps best known for its yellow sample ballot that it distributes to voters, brought the case, arguing that Alabama's law that bans political contributions between PACs violates free speech. The ADC gets money from individual contributors, other PACs, and even candidates; it spends money in support of particular candidates and independent advocacy. The ADC uses separate bank accounts for candidate contributions and its own independent expenditures. Still, the state's PAC-to-PAC transfer ban prohibited the ADC from receiving money from other PACs. So it sued.

The Eleventh Circuit upheld the state's transfer ban. The court ruled that the state enacted the ban in response to a concern by state voters that PAC-to-PAC transfers were being used to conceal the true identity of political contributors--and raised the appearance of quid pro quo corruption. Moreover, the court said that the ADC didn't do enough to segregate its two accounts to reduce the appearance that it might use other PACs' contributions for candidate contributions. Because the ban was closely drawn to address the appearance of corruption, the Eleventh Circuit upheld it.

The ruling aligns with the Second and Fifth Circuits, but against the Tenth, on the question whether a PAC-to-PAC transfer ban violates free speech, when a PAC has two separate accounts, one for candidate contributions and the other for independent expenditures.

September 30, 2016 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Thursday, September 29, 2016

SCOTUS Adds Two First Amendment Cases to Docket: Trademarks and Surcharge Laws

The United States Supreme Court has added two notable First Amendment speech cases to its docket of constitutional law cases.

In Lee v. Tam, the Court will consider whether the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, violates the First Amendment.  Recall that the en banc Federal Circuit held the provision invalid in  In Re Simon Shiao Tam, in which the central issue was the denial of a trademark registration to "The Slants" by the applicant Simon Shiao Tam, on behalf of the Portland, Oregon "all Asian American dance rock band."  Looming large but in the background are controversies regarding the names of athletic teams that many believe are disparaging.

In Expressions Hair Design v. Schneiderman, the Court will consider a New York state law prohibiting credit-card surcharges infringes free speech.  Recall that while the expressive element in the challenge to pricing regulation is not immediately obvious, one articulation of the issue is that while "price" is not expressive, the statute actually bans an expressive label it disfavors ("credit-card discount") while permitting one a label it approves ("cash discount").  The district judge found this persuasive and held the law unconstitutional, while the Second Circuit reversed.  Moreover, similar issues have reached the Eleventh and Fifth Circuits, with a split amongst the courts.

September 29, 2016 in First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0)

First Circuit: Statute Prohibiting "Ballot Selfies" Violates First Amendment

In its opinion in Rideout v. Gardner, the First Circuit, affirming the district judge, held that New Hampshire's prohibition of "ballot selfies" violates the First Amendment.

New Hamp. Rev. Statute §659.35, I, was amended in 2014 to provide:

No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.

(amended language underlined). The rationale for the statute was to prevent situations in which voters could be coerced into providing proof that they voted in a particular way, and thus as a means to prevent vote-coercion or vote-buying. 

polling place 1900 via

Judge Sandra Lynch's succinct opinion for the First Circuit panel includes a discussion of the nineteenth century practice in which political parties and other organizations had the power to print their own ballots, which they printed in a manner as to make the ballots easily identifiable by size and color.  "This practice allowed the ballot-printing organizations to observe how individuals voted at the polls, which in turn created an obviously coercive environment. "  Thus, "New Hampshire undertook a series of reforms to combat widespread vote buying and voter intimidation" and in 1891 passed legislation requiring the Secretary of State to prepare ballots for state and federal elections, and in 1911 passed the precursor statute forbidding any voter from allowing the "ballot to be seen by any person, with the intention of letting it be known how he is about to vote."

New Hampshire's problem in defending the constitutionality of the 2014 statute is that the problem of vote-buying and coercion has been solved.  As Judge Lynch stated, New Hampshire could not point to any such incidents since the nineteenth century (with the last complaint, seemingly unsubstantiated, being in 1976).  While the state's interests might be compelling in the abstract, they need to be real.  A broad prophylactic prohibition is unwarranted, despite worries about new technologies and media.  Indeed, Judge Lynch wrote:

Digital photography, the internet, and social media are not unknown quantities -- they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation. As the plaintiffs note, "small cameras" and digital photography "have been in use for at least 15 years," and New Hampshire cannot identify a single complaint of vote buying or intimidation related to a voter's publishing a photograph of a marked ballot during that period.

And even if there were a present problem that needed solving, "the statute still fails for lack of narrow tailoring."  Judge Lynch's opinion for the panel stated that the statute infringed on the rights of all voters and not the smaller (or even nonexistence) pool of those motivated to cast a vote for illegal reasons.  Additionally, there exist other state and federal laws prohibiting vote corruption which are adequate to address the problem, should it arise.  In an interesting footnote, the court lists statutes from other states allowing ballot selfies and notes that these states have not reported "an uptick" in vote buying or voter intimidation.

SnapchatThe First Circuit opinion applied intermediate scrutiny under the First Amendment.  The district judge had concluded the New Hampshire statute was a  content-based regulation and applied strict scrutiny.  However, relying on McCutcheon v. FEC (2014), the First Circuit reasoned that given that the statute fails the lower intermediate standard, the court need not "parse the differences" between the two standards in this case.  Nevertheless, the First Circuit did note that the New Hampshire statute affects voters who are engaged in "core political speech," and in a footnote quoted from the amicus brief for Snapchat that "younger voters" especially use ballot selfies as political expression.

Governments contemplating prohibiting "ballot selfies" would be wise to reconsider after a read of Rideout v. Gardner.

September 29, 2016 in Campaign Finance, Cases and Case Materials, Elections and Voting, Film, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, September 26, 2016

SCOTUS ConLaw Cases Preview for 2016-17 Term

The United States Supreme Court hears only small fraction of cases: The Court hears about 80 cases a year, of the approximately 8,000 requests for review filed with the Court each year, flowing from the approximately 60, 000 circuit court of appeals decisions and many more thousands of state appellate court opinions. And of this small fraction, generally about half involve constitutional issues, including constitutional criminal procedure issues.

Not surprisingly then, with the new Term starting October 3, the traditional first Monday in October, there are only a handful of constitutional law cases included among the less than 30 the Court has already accepted.


The Court is set to hear two racial gerrymandering cases, both of which involve the tensions between the Voting Rights Act and the Equal Protection Clause with underlying political contentions that Republican state legislators acted to reduce the strength of Black voters; both are appeals from divided opinions from three-judge courts. In Bethune-Hill v. Virginia State Board of Elections, the challenge is to the three-judge court’s decision and order holding that a number of Virginia House of Delegates districts did not constitute unlawful racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Virginia concededly did consider race in the redistricting, but the more precise issue is an interpretation under current doctrine regarding whether race was the predominant (and thus unconstitutional) consideration. The three-judge lower court is faulted for requiring an “actual” conflict between the traditional redistricting criteria and race. The petitioners argue that “where a legislature intentionally assigns voters to districts according to a fixed, nonnegotiable racial threshold, “strict scrutiny cannot be avoided simply by demonstrating that the shape and location of the districts can rationally be explained by reference to some districting principle other than race.” If it were other-wise, they argue, even the most egregious race-based districting schemes would escape constitutional scrutiny. In McCrory v. Harris, a racial gerrymandering case involving North Carolina, the challenge is to a three-judge court’s decision finding a constitutional Equal Protection Clause violation. The plaintiff originally argued that the congressional map drawn by the NC Assembly in 2011 violated the Equal Protection Clause in two districts by making race a predominant factor and by not narrowly tailoring the districts to any compelling interest. North Carolina argues that the conclusion of racial predominance is incorrect and that it need not show that racial considerations were “actually necessary” as opposed to “having good reasons” under the Voting Rights Act. The North Carolina districts have been long controversial; a good timeline is here.

In another Equal Protection Clause case, the classification is sex rather than race.  In Lynch v. Morales-Santana, the underlying problem is differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child; the Second Circuit held that the sex discrimination was unconstitutional, subjecting it to intermediate scrutiny under equal protection as included in the Fifth Amendment. The United States argues that because the context is citizenship, only rational basis scrutiny is appropriate. This issue has been before the Court before. The last time was 2011 in Flores-Villar v. United States when the Court's per curiam affirmance by an "equally divided Court" upheld the Ninth Circuit’s finding that the differential residency requirement satisfied equal protection. In Flores-Villar, Kagan was recused. The Court hearing Morales-Santana, scheduled for oral argument November 9, will also seemingly be only eight Justices, but this time including Kagan.

Trinity Lutheran Church of Columbia, Mo. v. Pauley also includes an Equal Protection issue, but the major tension is between the Free Exercise of Religion Clause of the First Amendment and principles of anti-Establishment of Religion. Like several other states, Missouri has a so-called Blaine Amendment in its state constitution which prohibits any state monies being used in aid of any religious entity. It is concededly more expansive/restrictive than the US Constitution’s Establishment Clause in the First Amendment as the United States Supreme Court has interpreted it. Missouri had a program for state funds to be awarded to resurface playgrounds with used tires; the state denied the Trinity Lutheran Church preschool’s application based on the state constitutional provision. Trinity Lutheran argues that the Blaine Amendment violates both the Free Exercise Clause and the Equal Protection Clause, with the Eighth Circuit siding with the state of Missouri.

There are also several cases involving the criminal procedure protections in the Constitution.  Pena-Rodriguez v. Colorado involves a claim of racial bias on a jury in a criminal case. The Colorado Supreme Court resolved the tension between the “secrecy of jury deliberations” and the Sixth Amendment right to an impartial jury in favor of the former interest. The court found that the state evidence rule, 606(B) (similar to the federal rule), prohibiting juror testimony with some exceptions was not unconstitutional applied to exclude evidence of racial bias on the part of a juror.  Bravo-Fernandez v. United States involves the protection against “double jeopardy” and the effect of a vacated (unconstitutional) conviction. It will be argued in the first week of October. Moore v. Texas is based on the Eighth Amendment’s prohibition of cruel and unusual punishment, with specific attention to capital punishment and the execution of the mentally disabled. In short: what are the proper standards for states to make a determination of mental disability?

Finally - - - at least for now - - - the Court will also be hearing a constitutional property dispute.  Murr v. Wisconsin involves the Fifth Amendment’s “Taking Clause,” providing that private property cannot be “taken” for public use without just compensation. At issue in Murr is regulatory taking. The Court granted certiorari to a Wisconsin appellate court decision regarding two parcels of land that the Murrs owned since 1995; one lot had previously been owned by their parents. Under state and local law, the two lots merged. The Murrs sought a variance to sell off one of the lots as a buildable lot, which was denied. The Murrs now claim that the denial of the variance is an unconstitutional regulatory taking. The Wisconsin courts viewed the two lots as the “property” and concluded that there was no regulatory taking.

We will be updating this post as the Court adds more cases to its docket.

UPDATE September 29, 2016:  The Court granted certiorari to two important First Amendment cases.

September 26, 2016 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Elections and Voting, Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Race, Religion, Sixth Amendment, Takings Clause | Permalink | Comments (0)

Sunday, September 25, 2016

Ninth Circuit: Green Party's First Amendment Challenge to Arizona's 180-day Party Recognition Deadline

In its opinion in Arizona Green Party v. Reagan, the Ninth Circuit affirmed the district judge's grant of summary judgment in favor of Arizona's Secretary of State, Michele Reagan, in a challenge to Arizona Revised Statute §16-803(A).  The statute requires a petition for recognition of a "new" - - - or actually a minor - - - party to be filed "not less than one hundred eighty days before the primary election for which the party seeks recognition.  The challenge involved the 2014 election; the Green Party had lost its official status the prior year because it failed to garner 5% of the vote and was thus treated as a "new" party under the statute.  The Ninth Circuit first held that there was not an issue of mootness because the deadline issue was likely to "surface again," fitting into the exception for mootness of claims that are “capable of repetition, yet evading review.”

The Ninth Circuit considered the merits of the challenge as one of ballot access and articulated the balancing tests of Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992).  But the Ninth Circuit essentially found any required balancing was impossible because of the Arizona Green Party's stance that the "deadline was unconstitutional as a matter of law" and submitted no evidence to support its claim that the 180-day deadline burdened its constitutional rights.

Analogy and rhetoric are no substitute for evidence, particularly where there are significant differences between the cases the Green Party relies on and the Arizona election system it challenges. The Supreme Court and our sister circuits have emphasized the need for context-specific analysis in ballot access cases. . . .

That filing deadlines of similar lengths may prove unconstitutionally burdensome in the context of some election schemes does not eliminate the need for evidence that a severe burden was imposed by the filing deadline in this case.

Thus, "absent evidence of the particular burdens imposed in this case," the panel concluded that  "at best, the 180-day petition- filing deadline imposes a de minimis burden on constitutional rights."  And given the de minimus burden, Arizona faced a very low hurdle: that the filing deadline served "important regulatory interests."

Unlike the Green Party, the Secretary [of State of Arizona] presented substantial evidence that details the processes for ballot access and the rationale behind each step in the timeline at each stage of the election process. The nested deadlines leading up to the Arizona primary, as well as the tasks that must be accomplished between the primary and general election, reflect an effort by the state to achieve the important goal of orderly elections. For example, the number of required signatures for independent candidate petitions depends on the number of registered voters who are not affiliated with a recognized party. For this reason, the state must know how many recognized parties will appear on the ballot before setting the candidate signature requirements, at which point candidates have two months to collect signatures. As Arizona’s Assistant State Election Director explained, “[i]f the petition deadline to obtain recognized party status were moved to a later date, new party candidates would have little or no meaningful opportunity to obtain the requisite number of signatures to qualify for the party’s primary ballot.” She also noted that in late May, Arizona counties mail a list of recognized political parties holding primaries in a particular election to the more than 1.9 million early registered voters, and that adding additional parties after the mailing deadline could therefore impose considerable burdens on the counties and lead to voter confusion. Also, in preparation for the primary, ballots must be translated into Spanish and several Native American languages, a process that takes time.

It does seem as if the Green Party of Arizona might have a successful challenge if it could marshal its evidence of the burden it faces under the 180-day deadline.

September 25, 2016 in Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)

Thursday, September 22, 2016

Judge Slaps FEC for Erroneous Analysis of Political Committee

Judge Christopher R. Cooper (D.D.C.) ruled earlier this week that the controlling members of the FEC applied the wrong legal analysis in concluding that two groups were not "political committees" under federal campaign finance law. The ruling reverses and remands to the FEC for reconsideration.

The case matters because designation as a "political committee" triggers more stringent reporting requirements under campaign finance law. Judge Cooper's ruling makes it more likely that a group would be considered a "political committee," and thus marks a victory for campaign disclosure advocates.

The case arose when CREW lodged a complaint with the FEC that two groups, American Action Network and Americans for Job Security, were unregistered "political committees." Those groups spent money on TV ads and other electioneering communication in three congressional districts in the 2010 elections. In response to CREW's complaint, three FEC commissioners determined that the groups' "major purpose" wasn't "the nomination or election of a candidate," and therefore that they were not "political committees" under campaign finance law. The commissioners reasoned that the groups' electioneering communications--ads that mentioned a candidate, but that did not advocate for or against a candidate's election--shouldn't be considered in determining the "major purpose," and that groups' purposes over their entire history should be considered in determining their "major purpose."

Judge Cooper disagreed. He ruled first that under Buckley and its progeny, the commissioners should have considered the groups' electioneering communications in determining their "major purpose":

CREW's citations to legislative history, past FEC precedent, and court precedent certainly support the conclusion that many or even most electioneering communications indicate a campaign-related purpose. Indeed, it blinks reality to conclude that many of the ads considered by the Commissioners in this case were not designed to influence the election or defeat of a particular candidate in an ongoing race. . . . Instead, the Court will limit itself to identifying the legal error in the Commissioners' statements--that is, the erroneous understanding that the First Amendment effectively required the agency to exclude from its consideration all non-express advocacy in the context of disclosure.

Judge Cooper ruled next that the commissioners wrongly considered the groups' spending over their entire existence, instead of confining their analysis to spending within the most recent calendar year, in determining the "major purpose." He explained that a group's purpose can change over time:

The Commissioners' refusal to give any weight whatsoever to an organizations' relative spending in the most recent calendar year--particularly in the case of a fifteen-year-old organization like AJS--indicates an arbitrary "fail[ure] to consider an important aspect of the [relevant] problem."

Judge Cooper sent the case back to the FEC and ordered it "to conform with [this] declaration within 30 days." The FEC can, of course, appeal.

September 22, 2016 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Monday, September 19, 2016

Divided Fourth Circuit Upholds County Commissioner's Prayer

In its divided opinion in Lund v. Rowan County, North Carolina, the Fourth Circuit has held that the identity of the person leading a prayer opening the county Board of Commissioners meeting is irrelevant - - - even a prayer led by a Board member is within the ambit of Town of Greece v. Galloway (2014) and without a First Amendment Establishment Clause problem.

As the majority opinion, authored by Judge Steven Agee and joined by Judge Dennis Shedd, describes it:

At most Board meetings, the chairperson would call the meeting to order and invite the Board and audience to stand for the ceremonial opening. A designated commissioner would then deliver an invocation of his or her choosing followed by the pledge of allegiance. The content of each invocation was entirely in the discretion of the respective commissioner; the Board, as a Board, had no role in prayer selection or content. The overwhelming majority of the prayers offered by the commissioners invoked the Christian faith in some form. For example, prayers frequently included references to “Jesus,” “Christ,” and “Lord.”  It was also typical for the invocation to begin with some variant of “let us pray” or “please pray with me.” Id. Although not required to do so, the audience largely joined the commissioners in standing and bowing their heads during the prayer and remained standing for the pledge of allegiance.

Louis-Émile_Minet_Les_CharitonsThe litigation was begun before the United States Supreme Court issued its sharply divided opinion in Town of Greece v. Galloway upholding the practice of the town beginning its meetings with invited religious leaders providing prayers.  The Court essentially extended Marsh v. Chambers (1983), regarding legislative prayer in the Nebraska legislature, to town meetings despite their quasi-legislative and quasi-adjudicative function.  The Fourth Circuit extends Town of Greece to prayers by the elected officials (and arguably adjudicators) themselves: "the Supreme Court attached no significance to the speakers' identities in its analysis" of either Town of Greece or Marsh.  Indeed, as the Fourth Circuit majority notes, Justice Kennedy writing for the plurality in Town of Greece averred that the "principal audience" for the prayers is not the public but "lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing."  The Fourth Circuit therefore found that the district judge's conclusion that legislative prayer led by a legislator violates the Establishment Clause.

Judge Agee's opinion for the Fourth Circuit majority then took up the question of whether "some other facet" of the Board of Commissioner's praying practice took it "outside the protective umbrella of legislative prayer."  These four "guideposts" included the selection of the legislative prayer, the content of the prayer, selection of the prayer-giver, and the effect of the prayer "over time" as advancing a particular religion.  Judge Agee's opinion rejected each of these concerns.  First, the selection of the legislative prayer was not done by the "Board as a whole," but each of the five commissioners was in effect "a free agent."  Second, the majority found the content not objectionable because it did not cross the line into proselytizing: "There is no prayer in the record asking those who may hear it to convert to the prayer-giver’s faith or belittling those who believe differently. And even if there were, it is the practice as a whole -- not a few isolated incidents -- which controls." Third, the selection of the prayer-givers was not problematic, even though it was limited to the five commissioners.  The majority opinion here comes close to requiring a type of specific motive: "Absent proof the Board restricted the prayer opportunity among the commissioners as part of an effort to promote only Christianity, we must view its decision to rely on lawmaker-led prayer as constitutionally insignificant."  Fourth and last, the majority found no problem based on its analogies to Town of Greece and Marsh, in which the prayers were overwhelmingly Christian.

All-falling-faithsFor Judge J. Harvie Wilkinson III, dissenting, the prayer practices of the Rowan County Commissioners crossed the constitutional line into a violation of the Establishment Clause. Wilkinson, whose forthcoming book argues that the 1960s  were damaging "to our need for the sustenance of faith," here concludes that Rowan County is not welcoming to various faiths. He does not argue that the commissioner as prayer-leader is determinative, but it is one of the factors that distinguishes the Rowan County practice from Town of Greece, that makes it "a conceptual world apart."  For Wilkinson:

I have seen nothing like it. This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece. That case in no way sought to dictate the outcome of every legislative prayer case.

Wilkinson's opinion provides several examples that the plaintiffs, all non-Christians, found "overtly sectarian," including:

Our Heavenly Father, we will never, ever forget that we are not alive unless your life is in us. We are the recipients of your immeasurable grace. We can’t be defeated, we can’t be destroyed, and we won’t be denied, because of our salvation through the Lord Jesus Christ. I ask you to be with us as we conduct the business of Rowan County this evening, and continue to bless everyone in this room, our families, our friends, and our homes. I ask all these things in the name of Jesus, Amen.”

Judge Wilkinson noted that the "closed universe" of prayer-givers - - - the five Commissioners - - - over a period of years had led to a constriction in the religious identities represented that could communicate a message of non-belonging to citizens coming before the Board.  But Wilkinson's concern also extended into a concern about representative secular democracy itself:

Entrenching this single faith reality takes us one step closer to a de facto religious litmus test for public office. When delivering the same sectarian prayers becomes embedded legislative custom, voters may wonder what kind of prayer a candidate of a minority religious persuasion would select if elected. Failure to pray in the name of the prevailing faith risks becoming a campaign issue or a tacit political debit, which in turn deters those of minority faiths from seeking office. It should not be so.

The United States Supreme Court's now-eight Justices may not be eager to welcome another government prayer case into the docket so soon after the 5-4 decision Town of Greece, especially one that might result in a 4-4 split, affirming the Fourth Circuit's opinion.  And yet?  Perhaps the Rowan County Board of Commissioners prayer practices might be a step too far for one of the Justices who joined the Court's majority in Town of Greece?  Or perhaps for the Fourth Circuit en banc? 


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September 19, 2016 in Cases and Case Materials, Courts and Judging, Establishment Clause, First Amendment, Opinion Analysis, Religion, Supreme Court (US) | Permalink | Comments (0)

Friday, September 2, 2016

Ninth Circuit Says No Free Speech for Off-Campus Sexual Harassment

The Ninth Circuit ruled today in C.R. v. Eugene School District 4J that a student's sexually-harassing speech a few hundred feet off school property and as school was letting out was not protected by the First Amendment. The ruling upholds the school district's decision to suspend the student.

The case arose when C.J. and a group of students harassed two disabled students shortly after school let out and just a few hundred feet off school grounds. School administrators concluded that the harassment violated the school's policy on sexual harassment and suspended C.J. C.J. sued, arguing that his speech was protected by the First Amendment.

The Ninth Circuit rejected that claim. The court said that by either the "nexus" test or the "reasonably foreseeable" test used in other circuits, C.J.'s speech fell within the school's authority--and within the free-speech rules for schools. As to "nexus," the court said that the harassment "was closely tied to the school" based on location (close to the school, on a common student route home from school) and timing (just as school let out). As to "reasonably foreseeable," the court said that "[b]ecause the harassment happened in such close proximity to the school, administrators could reasonably expect the harassment's effects to spill over into the school environment."

The court went on to say that the speech was punishable under Tinker, because of its potential disruption to school activities.

September 2, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, August 29, 2016

CFP: Dark Money and Judicial Elections Symposium at U Arkansas at Little Rock

The University of Arkansas at Little Rock Law Review

call for papers for its 2017 Symposium:

“Dark Money and Related Issues: New Factors in the Debate on Judicial Appointment versus Election,”

to be held on February 16th and 17th, 2017.

Deadline for submissions of article proposals is Oct. 7, 2016.


From the call:

Elections leave open the possibility for the corrupting influence of dark money. “Dark money” controversy figured prominently in the last Arkansas judicial elections, so much so that the Arkansas Supreme Court and General Assembly have studied the issue of campaign financing, and the Arkansas Bar Association created the Task Force on Maintaining a Fair and Impartial Judiciary, which issued a report in June recommending appointment of judges and other reforms. Judicial appointment, however, is not without its critics, who contend among other arguments that appointment is undemocratic, and that appointed judges lack authority and legitimacy and are less accountable.

The broad goal of this symposium is to debate the strengths and weaknesses of judicial election systems versus judicial appointment systems, with an eye toward the best solution for Arkansas. Topics of interest include, for example, whether an appointment process would be appropriate for all appellate judges or only Supreme Court Justices; the most effective and bipartisan types of appointment processes; issues surrounding recusal from cases involving contributors; and reforms to protect the election process from the influence of “dark money.” We anticipate panels comprising a mix of academics, judges, and legislators, both Arkansans and out-of-state speakers and contributors.

More submission details at the law review website here.

August 29, 2016 in Campaign Finance, Courts and Judging, First Amendment, Scholarship, Speech | Permalink | Comments (0)

Wednesday, August 24, 2016

Sixth Circuit's Mixed Ruling on First Amendment Challenges to Kentucky's Ethics Code for Judicial Elections

In its opinion in Winter v. Wolnitzek authored by Judge Jeffrey Sutton for the unanimous Sixth Circuit panel, the court considered eight provisions of the Kentucky Code of Judicial Conduct against facial and as-applied First Amendment challenges after first concluding that there was a sufficient case or controversy under Article III.

The court applies strict scrutiny to the State's efforts to regulate the campaign speech of judicial candidates under the United States Supreme Court's decision last year in Williams-Yulee v. The Florida Bar.  In Williams-Yulee, the no direct solicitation of contributions prohibition survived and a few of the provisions in Winter likewise survive.  The Kentucky Supreme Court, pursuant to a certification proceeding, rendered its interpretation on three of the canons.

In succinct fashion - - - the analysis of the eight provisions is less than ten manuscript pages - - - the court determined the constitutional status of the varying prohibitions as follows:


  • The campaigning clause, which prohibits a candidate for judicial office from campaigning as a member of a political organization was ruled unconstitutional as vague and overbroad.  Although the Kentucky Supreme Court had clarified this provision to mean that the candidate cannot portray themselves, either directly or by implication, as "the official nominee" of the party.  The court held there was too much slippage here, so that the use of a definitive article ("the Republican candidate") was not necessarily an endorsement as official nominee, especially when combined with other terms ("the moderate Republican candidate.")
  • The speeches clause, which prohibited judicial candidates from making speeches for or against a political party, was unconstitutional as not narrowly tailored.  The court noted that this does not prohibit a tweet for or against a political party, and distinguished a prohibition of judicial candidates from making speeches on behalf of a political organization (as the Ninth Circuit upheld).
  • The contributions clause, which prohibits judicial candidates from making financial contributions to a political organization or candidate was upheld.  Not withstanding the court's recognition that "money is speech" under Buckley v. Valeo.  The court held that this clause "narrowly serves the Commonwealth’s compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics." On this, the Sixth Circuit reversed the district judge.
  • The endorsements clause, which prohibits judicial candidates from publicly endorsing or opposing candidates for public office was likewise constitutional.  Again, the court stressed the quid pro quo nature of endorsements.
  • The "acting as a leader" clause, which prohibits a judge from acting as a leader or holding any office in a political organization was constitutional on its face as well as-applied to the request to host a political event that is a fundraiser.  The fundraiser, the court reasoned, brings the judge's impartiality into question.
  • The false statements clause, prohibiting judicial candidates from making false statements with knowledge or reckless disregard of the truth is perhaps the most interesting result.  The court distinguishes another Sixth Circuit case - - - Susan B. Anthony List v. Driehaus - - - which was not only not limited to material statements (as it was by the Kentucky Supreme Court's certification opinion), but also makes the Williams-Yulee distinction between political and judicial candidates.  However, the court found that as-applied to a judicial candidate's statement to be "re-elected" when in fact she occupied the judicial position because of appointment rather than election, the provision was unconstitutional.  The ban there "outstrips" the government interest and did not provide sufficient "breathing space."
  • The commits clause, prohibiting judicial candidates from making pledges or promises, was remanded.  This was not a provision that was certified to the Kentucky state supreme court and the Sixth Circuit panel implied that it should be.  The problem is determining whether an "issue-based" commitment is inconsistent with the impartial performance of judicial duties, with the Sixth Circuit panel stating that if "Kentucky interprets “impartiality” to mean solely “impartiality as to parties,” the clause may well advance a compelling interest and do so narrowly."

The court ends its opinion, as it began, by acknowledging the "cross-currents" of First Amendment challenges to judicial, rather than political, campaigns.  The court navigated surely and perhaps overly-speedily through the multiple issues landing with mixed results.  It does seem that the court will be visiting this terrain again.

August 24, 2016 in Campaign Finance, Courts and Judging, First Amendment, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Ninth Circuit Upholds Upholds California Ban on Sexual Orientation Conversion Therapy Against Religion Clauses Challenge

In a sequel to the Ninth Circuit's 2013 decision in Pickup v. Brown upholding California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit upheld the same law against a facial challenge based upon the First Amendment's Religion Clauses in its relatively brief opinion in  Welch v. Brown.

The panel in Welsh - - - the same panel as in Pickup - - - held that the SB 1172 violated neither the Establishment Clause nor the Free Exercise Clause.  The panel rejected the challengers' interpretation of the law as applying to members of the clergy because the law specifically exempts religious clergy "as long as they do not hold themselves out as operating pursuant" to any therapist licenses. 

The panel also rejected the contention that the law has the primary effect of inhibiting religion. That some minors who seek sexual orientation conversion may have religious motivations does not rise to the level of an inhibition of religion, especially given that the law was not targeted at religious motivated conduct.  The panel noted that the law's legislative findings focused on "social stigmatization" and "family rejection" rather than religiosity.  The panel likewise rejected the Free Exercise Clause claim that the law was not neutral as to religion based on the same rationales and cited the Third Circuit's similar conclusion regarding New Jersey's prohibition of sexual conversion therapy in King v. Christie.

The court also reiterated its rejection of any "privacy" claim based on its previous analysis in Pickup.

So far, challenges to state prohibitions of sexual conversion therapy for minors have had little success.


 [image via]


August 24, 2016 in Courts and Judging, Disability, Due Process (Substantive), Establishment Clause, Family, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation | Permalink | Comments (0)

Thursday, August 18, 2016

District Judge Rules RFRA Exemption in Transgender Title VII Case

In his opinion and order in EEOC v. R.G. & G.R. Harris Funeral Homes, United States District Judge Sean Cox of the Eastern District of Michigan, the judge held that the funeral home is "entitled to a RFRA exemption from Title VII and the body of sex-stereotyping case law that has developed under it."

The funeral home, a for-profit closely-held corporation, relied upon the United States Supreme Court's closely-divided and controversial decision in Burwell v. Hobby Lobby (2014) which allowed a religious exemption under RFRA (the Religious Freedom Restoration Act) to a federal requirement in the Affordable Care Act (ACA or Obamacare) that employers provide health insurance to employees that includes contraceptive coverage. 

800px-Snow_White_Coffin_CarriedRather than contraception, the issue in Harris Funeral Homes is the funeral home's sex-specific dress code and its termination of Stephens, an employee transitioning from male to female for failure to wear the mandated male-specific clothing.  The primary shareholder of the funeral home, Thomas Rost, stated his beliefs that the Bible teaches "that a person's sex is an immutable God-given gift" and "that is wrong for a biological male to deny his sex by dressing as a woman."  More importantly for his RFRA claim, Rost stated that he himself “would be violating God’s commands” if he were to permit one of the Funeral Home’s biologically-male-born funeral directors to wear the skirt-suit uniform for female directors while at work, because Rost “would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”

Recall that under RFRA, a threshold question is whether the person's religious belief are sincerely held.  Hobby Lobby having determined that a company's major shareholder's belief is the relevant one, the EEOC conceded that the "Funeral Home's religious beliefs are sincerely held."  The next question is whether the neutral law of general applicability - - - here, Title VII - - - is a substantial burden on the person's religious beliefs.  The district judge found that allowing an employee to wear a skirt would impose a substantial burden on the ability of Rost to conduct his business in accordance with his sincerely held religious beliefs and that the economic consequences of back pay would be "severe."  The burden then shifts in RFRA to the government to satisfy strict scrutiny as well as a least restrictive means requirement.  Recall that the stated purpose of Congress in passing RFRA was to "restore the compelling interest test as set forth in Sherbert v. Verner" (1964),  which Congress believed the Court had departed from in Employment Division v. Smith (1990), although Congress also added the "least restrictive means" language.

And in his Harris Funeral Homes decision, Judge Cox ultimately relied on the least restrictive means requirement. However, first Judge Cox treated the traditional strict scrutiny questions.  Judge Cox assumed "without deciding" that the EEOC had a compelling governmental interest, although Judge Cox expressed doubts whether this was true.  Indeed, Judge Cox interpreted the passage in Hobby Lobby stating that the decision provided "no such shield" to equal employment laws (and thus refuting a claim made by the dissent) as essentially dicta:

This Court does not read that paragraph as indicating that a RFRA defense can never prevail as a defense to Title VII or that Title VII is exempt from the focused analysis set forth by the majority. If that were the case, the majority would presumably have said so. It did not.

Moreover, Judge Cox relied on Hobby Lobby to contend that a general interest in ending employment discrimination is not sufficient, it must be focused on the particular person burdened: "even if the Government can show that the law is in furtherance of a generalized or broad compelling interest, it must still demonstrate the compelling interest is satisfied through application of the law to the Funeral Home under the facts of this case." (italics in original).  Although Judge Cox wrote that he "fails to see how the EEOC has met its requisite 'to the person'-focused showing," he nevertheless stated he would assume it was met.

As to the least restrictive means, Judge Cox's solution is a gender-neutral dress code:

Yet the EEOC has not challenged the Funeral Home’s sex-specific dress code, that requires female employees to wear a skirt-suit and requires male employees to wear a suit with pants and a neck tie, in this action. If the EEOC were truly interested in eliminating gender stereotypes as to clothing in the workplace, it presumably would have attempted to do so.

Rather than challenge the sex-specific dress code, the EEOC takes the position that Stephens has the right, under Title VII, to “dress as a woman” or wear “female clothing” while working at the Funeral Home. That is, the EEOC wants Stephens to be permitted to dress in a stereotypical feminine manner (wearing a skirt-suit), in order to express Stephens’s gender identity.

If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home, couldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here? Both women and men wear professional-looking pants and pants-suits in the workplace in this country, and do so across virtually all professions.

[footnotes omitted].

Of course, the courts have not ruled favorably on challenges to sex-specific dress and grooming codes in the employment context. 

Interestingly, Judge Cox also rejected the EEOC's gender discrimination claim based on the funeral home company's clothing allowance policy: there is a monetary clothing allowance to male employees but not female employees.  Judge Cox found that this issue was not properly brought by the EEOC. 

The EEOC is sure to appeal.  If individual employers can claim exemptions to Title VII under RFRA, it could have widespread consequences.

Although it is also possible that a new Congress could amend RFRA.

 [image via]

August 18, 2016 in Congressional Authority, Courts and Judging, First Amendment, Opinion Analysis, Religion | Permalink | Comments (0)

Monday, August 15, 2016

Texas Attorney General Opinion: Prayer to Start Court Is Constitutional

Controversial Texas Attorney General Ken Paxton has issued an opinion today that the First Amendment's Establishment Clause is not violated if court were opened with a prayer.  He stated:

A court would likely conclude that a Justice of the Peace's practice of opening daily court proceedings with a prayer by a volunteer chaplain as you describe is sufficiently similar to the facts in Galloway such that the practice does not violate the Establishment Clause.

Galloway is the United States Supreme Court's sharply divided 2014 opinion in Town of Greece v. Galloway which involved a town board meeting. Justice Kennedy's opinion for the Court in Galloway repeated referred to the issue as whether the "legislative prayer" approved by the Court in Marsh v. Chambers (1983) as part of a historical practice extended to a local legislature, despite the fact that some non-legislative functions occurred at the town board.  In the dissent for four Justices, Justice Kagan essentially argued that a prayer at the beginning of a trial was clearly unconstitutional.  Indeed, in his separate concurring opinion, Justice Alito seemingly agreed:

I am troubled by the message that some readers may take from the principal dissent’s rhetoric and its highly imaginative hypotheticals. For example, the principal dissent conjures up the image of a litigant awaiting trial who is asked by the presiding judge to rise for a Christian prayer, of an official at a polling place who conveys the expectation that citizens wishing to vote make the sign of the cross before casting their ballots, and of an immigrant seeking naturalization who is asked to bow her head and recite a Christian prayer. Although I do not suggest that the implication is intentional, I am concerned that at least some readers will take these hypotheticals as a warning that this is where today’s decision leads—to a country in which religious minorities are denied the equal benefits of citizenship.

Nothing could be further from the truth. All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.

At least for Attorney General Ken Paxton,  Justice Kagan's hypothetical was not as "highly imaginative" as Justice Alito averred.  Paxton's opinion recognizes that the only United States Circuit court opinion to directly consider the issue, North Carolina Civil Liberties Union Legal Found. v. Constangy (4th Cir. 1991), found opening court with prayers unconstitutional, but Paxton opines "other courts deciding the issue may disagree with Constangy that prayer in judicial settings lacks historical foundation."  Thus, Paxton states that "a Justice of the Peace's practice of opening daily court proceedings with a prayer by a volunteer chaplain," would  not violate the Establishment Clause.


[image: Henry VIII at prayer with Black Book of the Garter via ]


August 15, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Interpretation, Religion, Supreme Court (US) | Permalink | Comments (0)

Ninth Circuit Requires Proof to Challenge Open Primary

The Ninth Circuit ruled in Democratic Party of Hawaii v. Nago that the plaintiff failed sufficiently to prove that Hawaii's open primary violated its First Amendment right of association. The ruling dismisses the case and keeps the state's open primary system in place.

The Democratic Party of Hawaii challenged Hawaii's open primary system as a facial violation of its associational rights. But the Party declined to submit evidence in support (showing, for example, that cross-over primary voters would influence the positions of candidates and result in candidates not supported by the Democrats), and maintained its position that the courts could decide the claim as a pure matter of law.

The courts disagreed. The Ninth Circuit said that the plaintiff had to submit proof to show that an open primary system infringed on associational rights--that the claim turns on a question of fact. And because the Democrats failed to provide any proof, their facial challenge had to fail.

August 15, 2016 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Thursday, August 11, 2016

Officer's Allegations of Misconduct are Protected Speech

The Seventh Circuit ruled today in Kristofek v. Village of Orland Hills that a police officer's allegation of official misconduct in the higher ranks was protected speech under the First Amendment.

The ruling reverses the district court on the point and on its companion ruling that the police chief enjoyed qualified immunity. But the court rejected the officer's municipal liability claim.

The case arose when a part-time police officer, Kristofek, complained to colleagues and then to the FBI that a driver that he cited and detained may have been released, and charges dropped, because of official misconduct. (The driver's mother, a former township trustee, successfully intervened with local politicians and the police on behalf of her son. Kristofek thought that this might constitute official misconduct, based on a misconduct training that he attended.) Police Chief Scully then fired Kristofek.

Kristofek sued, arguing that his termination in retaliation for protected speech violated the First Amendment, and that the township was liable under Monell. The district court granted summary judgment to the defendants.

The Seventh Circuit reversed on the First Amendment claim. The court ruled that Kristofek spoke as a private citizen on a matter of public concern when he complained to his colleagues and to the FBI, and that the Pickering balance favored his speech. The court also denied qualified immunity to Scully.

But the court rejected Kristofek's Monell claim, because Scully didn't have authority to unilaterally fire Kristofek or to set department firing policy.

The ruling sends the case back for proceedings consistent with the opinion. But it also assigns the case to a new judge.

August 11, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, August 8, 2016

Court Boots Case by Libertarians and Greens to Participate in Presidential Debates

Judge Rosemary Collyer (D.D.C.) on Friday dismissed a case by the Libertarian and Greens against the Commission on Presidential Debates and others challenging their exclusion from the 2012 presidential debates and seeking to participate in the 2016 debates.

The ruling is hardly a surprise, despite the plaintiffs' mighty efforts to navigate well settled precedent.

The Libertarians and Greens argued that their exclusion under the Commission's 15% rule (a candidate needs 15% support in the polls to participate) violated antitrust laws and the First Amendment. But Judge Collyer held that they lacked standing, and that they failed to state a claim.

Judge Collyer said that the plaintiffs lacked standing, because their injury (lack of electoral support) was too speculative and was not traceable to Commission action (on the First Amendment claim) and because their injury wasn't a harm to the market (on the antitrust claim).

Judge Collyer went on to say that the plaintiffs failed to state a claim, because the Commission isn't a government actor subject to the First Amendment (on the free speech claim) and because they failed to allege an injury to competition in a commercial market (on the antitrust claim).

Given the plaintiffs' attempts to navigate well settled First Amendment law, Judge Collyer's ruling sometimes reads like a law exam answer--covering everything from the public function exception to the state actor doctrine, to right-to-access laws, to forum analysis, to the Jaybird primaries.

Despite the plaintiffs' efforts, however, they still lost. The ruling means that the Libertarians and Greens won't be at the 2016 presidential debates, at least not by court order.

August 8, 2016 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Thursday, July 14, 2016

Daily Read: When Justices Scalia and Kennedy Referenced Donald Trump

Justice Ginsburg's comments about presidential candidate Donald Trump have caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview. (Amy Howe for SCOTUSBlog has a great round-up of commentary on the controversy; Howard Bashman also has a good list).

But interestingly, Justice Scalia - - - as well as Justice Kennedy - - - broached the possibility of a Donald Trump presidential candidacy more than 25 years ago, in the 1989 oral arguments in Austin v. Michigan Chamber of Commerce.  The Court in Austin upheld the constitutionality of a Michigan statute that prohibited corporations, excluding media corporations, from using general treasury funds for independent expenditures in connection with state candidate elections, rejecting both First Amendment and Equal Protection claims, and recognizing a government interest in preventing corruption or the appearance of corruption in the political arena from large corporate treasuries.  Both Scalia and Kennedy dissented.  Twenty years later, the Court, 5-4, with Kennedy authoring the opinion and Scalia joining, overruled Austin in the controversial 2010 Citizens United v. FEC

Near the beginning of the Austin oral arguments, Justice Scalia uses Donald Trump, alluding to the wealth that would allow him to self-finance a campaign, as a comparison to corporate financing:

General Caruso, why is there a greater risk to the political process from an independent political expenditure by a family corporation, closely held corporation, eight family members, and they want to spend the corporation's money for a particular candidate whom they think will favor their business.

That... that is prohibited by this.

But if Donald Trump wants to come in and spend as much money as he likes, that is perfectly all right.

Why wouldn't it make much more sense, if you are worried about the problem, to establish an amount of money as the criterion?

A few moments later, Kennedy follows:

All right.

Then it... it seems to me that Justice Scalia's question indicates that you have to give a specific reason why a corporation of that type presents more [of] a danger than Donald Trump, and I didn't really hear the answer to that question.

Louis J. Caruso:  Well, the thing of it is--

Anthony M. Kennedy:  And it has to be answered in the terms of a compelling interest that is narrowly tailored.

 Did Justice Kennedy actually call Donald Trump a "danger" in 1989?


h/t Navid Khazanei

July 14, 2016 in Campaign Finance, Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, News, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, July 11, 2016

Ninth Circuit Upholds L.A.'s Mobile Billboard Ordinances Against First Amendment Challenge

In its opinion in Lone Star Security and Video v. City of Los Angeles, the Ninth Circuit upheld L.A.'s mobile billboard ordinances against a First Amendment challenge distinguishing the United States Supreme Court's 2015 Reed v. Town of Gilbert

Recall that in Reed, Justice Kagan separately concurred in the unanimous decision to warn that strict scrutiny was not always appropriate and that "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive."  Here, it seems that the Ninth Circuit panel has taken that advice, applying the relaxed standard of time, place, and manner doctrine rather than content-discrimination meriting strict scrutiny.

Image via
[It seems that this van would not violate the L.A. ordinances]

The L.A. ordinances are directed at "advertising signs" on vehicles or attached to vehicles.  Signs on vehicles - - - painted or permanently affixed - - - are allowed as long as they do not extend beyond the vehicle or make the vehicle unsafe.  Signs that attached to non-motorized vehicles, such as those on standalone trailers, are prohibited from parking on city streets.

Judge Mary Murguia, writing for the unanimous panel, concluded that the ordinances applicability to "advertising" did not render the ordinances content-based.  The opinion relied on a state case that construed advertising as displaying any message to the public rather than the content of that message and upheld an ordinance as applied to a nonprofit organization protesting animal cruelty.  Moreover,

The Supreme Court’s recent decision in Reed does not alter our conclusion. Unlike Reed, the mobile billboard ordinances do not single out a specific subject matter for differential treatment, nor is any kind of mobile billboard exempted from regulation based on its content. There has been no suggestion that the ordinances apply differently to Lone Star Security’s political endorsements than to its commercial promotional campaigns, for example. Rather, an officer seeking to enforce the non-motorized billboard ordinances must decide only whether an offending vehicle constitutes a prohibited “advertising display” because its primary purpose is to display messages, as opposed to transporting passengers or carrying cargo. . . . In the case of the motorized billboard ordinance, an enforcing officer would simply need to distinguish between signs that are permanent or non-permanent, and larger or smaller than the vehicles to which the signs are affixed to determine whether the vehicle violates the ordinance.

[ellipses added; citations omitted].  Once having determined the correct standard was not strict scrutiny, the panel easily found that the ordinances survived review.

The parties do not dispute that the cities’ stated interests in traffic control, public safety, and aesthetics are sufficiently weighty to justify content-neutral, time, place, or manner restrictions on speech, nor could they.

As for the "narrow tailoring" required, the panel found that none of the ordinances were broader than necessary.  Additionally, the panel found that there were ample alternative channels for communication, including advertising. 

Appellants are free to disseminate their messages through myriad other channels, such as stationary billboards, bus benches, flyers, newspapers, or handbills. Appellants may also paint signs on vehicles and attach decals or bumper stickers. Although mobile billboards are a unique mode of communication, nothing in the record suggests that Appellants’ overall “ability to communicate effectively is threatened.”

The last quotation is from the United States Supreme Court's City of Los Angeles v. Taxpayers for Vincent (1984), on which Judge Murguia heavily relied.  However, for Judge John Owens, Taxpayers for Vincent has its own flaws. In a brief concurrence, Judge Owens suggested that the United States Supreme Court should take a "second look" at Taxpayers for Vincent.

This case is about ugly signs on vehicles, and no doubt I would not want these vehicles and their signs parked in front of my house. But under the ordinances at issue, a car with equally ugly decals—including a decal of a vehicle with an ugly sign—would not “go to jail,” but instead treat my curb like the upper left corner of a Monopoly board.

If “aesthetics” are to play a part in speech restriction, then such aesthetics should apply equally, decal or sign. Yet under Taxpayers for Vincent, the Court rejected the very point that I now make. See 466 U.S. 810–12 (rejecting the Ninth Circuit’s holding that “a prohibition against the use of unattractive signs cannot be justified on esthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located”). I think our court was right then, and the Supreme Court should reconsider this portion of Taxpayers for Vincent. As it currently stands, politicians can use Taxpayers for Vincent and its beholderish “aesthetics” to covertly ensure homogeneous thinking and political discourse. That is a dimension we should avoid. See The Twilight Zone: Eye of the Beholder (CBS television broadcast Nov. 11, 1960).

Judge Owens was not part of the Ninth Circuit panel that the Court reversed, although the third member of this Ninth Circuit panel - - - Judge Stephen Reinhardt - - - was.  Judge Reinhardt, born in 1931, may also have seen the original episode of The Twilight Zone to which Judge Owens, born more than a decade after its original airing, refers.





July 11, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Opinion Analysis, Recent Cases, Speech, Supreme Court (US) | Permalink | Comments (0)