Friday, April 21, 2017
In its opinion in CTIA - The Wireless Ass'n v. City of Berkeley, a panel of the Ninth Circuit rejected First Amendment and preemption challenges to an ordinance requiring retailers to provide notices to consumers about their cell phone purchase. The notice, to be on a poster or handout, with the seal of the city, must read:
The City of Berkeley requires that you be provided the following notice:
To assure safety, the Federal Government requires that cell phones meet radiofrequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.
As the notice implies, the FCC disclosures required to be included with the phone are similar if more extensive.
Affirming the district judge, the divided Ninth Circuit panel found that the required notice did not violate the First Amendment. As a compelled disclosure in a commercial context, the choice of standards was between the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985). Writing for the majority, Judge William Fletcher found that the Zauderer test was appropriate, despite the fact that the disclosure did not involve "consumer deception." Judge Fletcher agreed with "sister circuits that under Zauderer the prevention of consumer deception is not the only governmental interest that may permissibly be furthered by compelled commercial speech," citing the D.C. Circuit's en banc opinion in American Meat Institute v. U.S. Department of Agriculture. Judge Fletcher's opinion reasoned that the Zauderer's language that the disclosure be “uncontroversial” should not be over-emphasized:
Given that the purpose of the compelled disclosure is to provide accurate factual information to the consumer, we agree that any compelled disclosure must be “purely factual.” However, “uncontroversial” in this context refers to the factual accuracy of the compelled disclosure, not to its subjective impact on the audience. This is clear from Zauderer itself.
Applying the deferential Zauderer standard, the court again confronted whether the disclosure was "purely factual" as well as being reasonably related to a substantial governmental interest. Judge Fletcher's opinion concluded the mandated notice was "literally true," based on FCC findings. The court rejected CTIA's argument that while it might be "literally true," the statement was "inflammatory and misleading." Judge Fletcher analyzed the compelled notice sentence by sentence, finding it true. For example, CTIA objected to the phrase “RF radiation,” but Judge Fletcher's opinion noted this is "precisely the phrase the FCC has used, beginning in 1996, to refer to radio-frequency emissions from cell phones," and that the city could not be faulted for using the technically correct term that the FCC itself uses.
It was on this point that the brief partial dissent by Judge Michelle Friedland differed. For Judge Friedland, consumers would not read the disclosure "sentences in isolation the way the majority does." She argues that taken as a whole,"the most natural reading of the disclosure warns that carrying a cell phone in one’s pocket is unsafe," and that "Berkeley has not attempted to argue, let alone to prove, that message is true." She accuses the city of "crying wolf" and advises the city if it "wants consumers to listen to its warnings, it should stay quiet until it is prepared to present evidence of a wolf."
In addition to the First Amendment claim, CTIA argued that the mandated disclosure was preempted by federal regulations. The court noted procedural problems regarding when the argument was advanced. Nevertheless, the court clearly concluded:
Berkeley’s compelled disclosure does no more than to alert consumers to the safety disclosures that the FCC requires, and to direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.
But surely it is the First Amendment issues that are central to the case. The panel essentially divides on the limit to government mandated disclosures to consumers, an issue that vexed the DC Circuit not only in the American Meat Institute case mentioned above, but also in National Association of Manufacturers v. SEC (conflict minerals) and in R.J. Reynolds Tobacco Co. v. FDA (cigarette labeling), both of which held the labeling requirements violated the First Amendment. One measure of the importance of the issue is the attorneys who argued CTIA in the Ninth Circuit: Theodore Olsen for the trade association of CTIA and Lawrence Lessig for the City of Berkeley. The Ninth Circuit's majority opinion is careful and well-reasoned, but as the divided panel evinces, there are fundamental disputes about warning labels.
Wednesday, April 19, 2017
The nine Justice Court heard oral arguments this morning in Trinity Lutheran Church of Columbia, Mo. v. Comer, involving a First Amendment Free Exercise Clause challenge to a denial of state funding that was based on Missouri's state constitutional provision prohibiting any state funds from being awarded to religious organizations.
The state Department of Natural Resources had denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground. The state officials had reasoned that supplying such funds would violate the state constitutional provision, a provision often called a Blaine Amendment, and which the attorney for Trinity Lutheran Church noted was often rooted in "anti-Catholic bigotry." In upholding the Missouri denial of resources the Eighth Circuit had relied in part on Locke v. Davey (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology." For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.
Locke v. Davey arose frequently in the argument. The attorney for the church argued that Locke's "play in the joints" was pertinent, but distinguished the program in Locke as being more inclusive of religion. Justice Kennedy seemed to distinguish Locke v. Davey, stating that "this is quite different than Locke, because this is a status-based statute." Later, Chief Justice Roberts broached Locke, in a colloquy with James Layton, representing Missouri, who argued that Locke was a closer case than the present one because here the state's money was a "direct payment" to the church rather a scholarship to a student as in Locke. But Justice Kagan, evoking Locke, seemed troubled by Missouri's argument:
JUSTICE KAGAN: But here's the deal. You're right that this is a selective program. It's not a general program in which everybody gets money. But still the question is whether some people can be disentitled from applying to that program and from receiving that money if they are qualified based on other completely nonreligious attributes, and they're disqualified solely because they are a religious institution doing religious things. Even though they're not --they could --they could promise you, we're not going to do religious things on this playground surface, and you're still saying, well, no, you --you can't get the money.
Soon thereafter, Justice Kagan stated:
JUSTICE KAGAN: But I don't understand -I --I think I understand how the States' interests might differ some, but essentially this is a program open to everyone. Happens to be a competitive program, but everyone is open to compete on various neutral terms, and you're depriving one set of actors from being able to compete in the same way everybody else can compete because of their religious identification.
Layton, representing the State, also had his own status and the status of the litigation to discuss.
[Sotomayor]: Mr. Layton, I'm --I'm --I know the Court is very grateful that you took up the request of the Missouri Attorney General to defend the old position, but I --I am worried about the, if not the mootness, the adversity in this case. If the Attorney General is in favor of the position that your adversary is taking, isn't his appointment of you creating adversity that doesn't exist?
MR. LAYTON: Well, I don't know the answer to that --that, but let me --let me give some of the factual background here.
The Attorney General himself is recused because he actually appears on one of the briefs on the other side. The first assistant in this instance is the Acting Attorney General, and the Acting Attorney General, at a time before governor --the governor gave his new instruction, asked me to defend the position, because at that point, it was still the position of the State, and was not being disavowed.
JUSTICE SOTOMAYOR: Well, but that's the question. It doesn't appear to be the position of the State right now. Reading through the lines of the Acting Attorney General to us, it doesn't appear that he believes that you're taking the right position.
The problem of whether the case is moot because the Governor of Missouri announced this week a change of policy was the subject of a Court instruction to the attorneys to respond by letter regarding the issue. It dominated very little of the discussion, but Chief Justice Roberts did ask this:
CHIEF JUSTICE ROBERTS: You --do you agree that this --this Court's voluntary cessation policies apply to the mootness question?
MR. LAYTON: I agree . . .
Justice Gorsuch, new to the bench this week, then brought the matter back to the substantive issue.
Whether or not the Court will dismiss the case or rule on the merits was not evident from the oral argument, although it did seem as if there was not much enthusiasm for Missouri's now-previous position that prevailed in the Eighth Circuit.
Sunday, April 16, 2017
In an opinion in excess of 100 pages in McGehee v. Hutchinson, United States District Judge Kristine Baker enjoined the scheduled execution of McGehee and eight other plaintiffs based on their likelihood to succeed on their Eighth Amendment and First Amendment claims.
The case arises from a highly unusual compressed execution schedule: "Governor Hutchinson set eight of their execution dates for an 11-day period in April 2017, with two executions to occur back-to-back on four separate nights." Judge Baker rejected the claim that the schedule alone violated any "evolving standards of decency" under the Eighth Amendment.
However, this unusual schedule did play some part in Judge Baker's conclusion that there was a likelihood of success on the merits of the plaintiffs' Eighth Amendment challenge to the use of midazolam as cruel and unusual punishment.
In a detailed recitation of the facts, including expert testimony rendered by both the plaintiffs and the State, Judge Baker noted that she "received much evidence in the last four days " and "filtered that evidence, considerable amounts of which involved scientific principles," and converted it into lay terms in the opinion. At times, Judge Baker's assessment of the expert testimony is quite precise: "Defendants’ witness Dr. Antognini’s reliance on animal studies while defense counsel simultaneously challenged plaintiffs’ witness Dr. Steven’s reliance on animal and in vitro studies seems inconsistent. This inconsistency went largely unexplained."
This factual record is important for applying the test for a challenge to a method of execution as the United States Supreme Court articulated in Glossip v. Gross (2015). As Judge Baker explained, plaintiffs have the burden of proving that “the State's lethal injection protocol creates a demonstrated risk of severe pain” and “the risk is substantial when compared to the known and available alternatives.” On the first prong, Judge Baker concluded there is a "significant possibility" that plaintiffs will succeed in showing that the use of midazolam in the Arkansas Department of Corrections (ADC) "current lethal injection protocol qualifies as an objectively intolerable risk that plaintiffs will suffer severe pain." She continued that the
risk is exacerbated when considering the fact that the state has scheduled eight executions over 11 days, despite the fact that the state has not executed an inmate since 2005. Furthermore, the ADC’s execution protocol and policies fail to contain adequate safeguards that mitigate some of the risk presented by using midazolam and trying to execute that many inmates in such a short period of time.
The second prong under Glossip requires plaintiffs to show that “the risk is substantial when compared to the known and available alternatives.” Judge Baker stated that the "Supreme Court has provided little guidance as to the meaning of 'availability' in this context, other than by stating that the alternative method must be 'feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.’" She then discussed the conflicting standards in the Circuits, concluding that the "approach taken by the Sixth Circuit provides a better test for 'availability' under Glossip," because the "Eleventh Circuit’s understanding of “availability” places an almost impossible burden on plaintiffs challenging their method of execution, particularly at the preliminary injunction stage." In deciding that there were alternatives available, Judge Baker found that "there is a significant possibility that pentobarbital is available for use in executions." The opinion noted that other states have carried out executions with this drug. The opinion also noted that "plaintiffs have demonstrated a significant possibility that the firing squad is a reasonable alternative."
Thus, Judge Baker found that both prongs of Glossip were likely to be satisfied under the Eighth Amendment claim.
On the First Amendment claim, the essence was that the limitations placed on counsel viewing the execution would deprive plaintiffs of their access to the courts during that time. Judge Baker noted there was some confusion regarding the actual viewing policy that would be operative, with the Director having "taken three or four different positions regarding viewing policies" during litigation. But, the "key aspect" of any policy "would force plaintiffs’ counsel to choose between witnessing the execution and contacting the Court in case anything should arise during the course of the execution itself."
In analyzing the First Amendment claim, Judge Baker used the highly deferential standard of Turner v. Safely (1987), with its four factors:
- First, “there must be a ‘valid, rational connection’ between the prison regulation and the legitimate government interest put forward to justify it.”
- Second, courts must consider “whether there are alternative means of exercising the right that remain open to prison inmates.”
- “A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.”
- Finally, “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.”
Judge Baker held that while there was a valid rational connection, there were alternative means and no impact on other prisoners. Thus, Judge Baker enjoined the Director "from implementing the viewing policies insofar as they infringe plaintiffs’ right to counsel and right of access to the courts," and charged the Director "with the task of devising a viewing policy that assures plaintiffs’ right to counsel and access to the courts for the entire duration of all executions."
Judge Baker issued her Preliminary Injunction on Saturday, April 15. Reportedly, there is already an emergency appeal to the Eighth Circuit, as well as an appeal of a stay by a state court judge to the Arkansas Supreme Court.
Friday, April 14, 2017
Judge John D. Bates (D.D.C.) ruled today that a student whose painting was displayed at the U.S. Capitol after winning an congressional art competition enjoyed no First Amendment right against the Architect of the Capitol when the Architect took the painting down based on its viewpoint.
Judge Bates said that the painting amounted to government speech, and that it was therefore not protected by the First Amendment.
The ruling is just the latest chapter in a dispute over the painting between a group of Republican lawmakers and law enforcement advocates, and the Congressional Black Caucus.
The case arose when high school student David Pulphus's painting was selected to represent Missouri's First Congressional District in the 2016 Congressional Art Competition. As a result, Pulphus's painting hung, along with other selected works, in the Cannon Tunnel in the U.S. Capitol complex. But this didn't sit well with some members of Congress, who saw the painting as anti-police. They took it upon themselves to remove the painting and deliver it to the office of Congressman William Clay, who represents the First District. After each removal, Clay, whose district includes Ferguson, then took it upon himself to return the painting to its place in the Cannon Tunnel.
Eventually the Architect removed the painting, but did not explain exactly why. Clay and Pulphus then sued, arguing that the removal constituted viewpoint discrimination in a designated public forum and therefore violated free speech.
Judge Bates disagreed. Applying three factors from Walker v. Sons of Confederate Veterans and Pleasant Grove City v. Summum, Judge Bates said (1) that the "traditional use of the medium" was "inconclusive," but (2) that "[t]he government, then, is understood by the public as speaking through that exercise of choosing which works are displayed in the art competition," and (3) that the Architect "retains editorial control over the art submitted in the competition." He concluded that Pulphus's piece therefore amounted to government speech (and not private speech in a limited public forum), and therefore enjoyed no First Amendment protection.
Judge Bates also rejected the plaintiffs' vagueness challenge, writing that "[w]hen the government speaks, it is free to promulgate vague guidelines and apply them arbitrarily."
Wednesday, April 5, 2017
The Third Circuit granted qualified immunity to local government officers against plaintiffs' First Amendment claims that the officers retaliated against them for exercising their speech and petition rights and directly violated their right to petition the government.
The ruling most likely ends this case.
The case arose when the Mirabellas, husband and wife who happen to be attorneys, got into a dispute with their neighbors over the neighbor's use of protected wetlands. The Mirabellas sought local government assistance in the dispute, but government officials sided with the neighbors. The Mirabellas then threatened to sue the neighbors and join the local government. So local government officials wrote to the Mirabellas that they were barred from communicating with the government or government officials (except the township attorney), and that government counsel should seek sanctions against the Mirabellas if they sued.
The Mirabellas did sue--but on First Amendment grounds, and not the underlying land-use dispute. They alleged that government officials retaliated against them for communicating with the government and directly violated their right to petition the government.
The Third Circuit ruled that the officials enjoyed qualified immunity and dismissed both claims. The court ruled that the officials did, in fact, retaliate against the Mirabellas for exercising their free speech and petition rights (based on the no-contact communication, but not on the communication threatening sanctions), but that the law wasn't clearly established at the time. In particular, the court said that "the right to be free from a retaliatory restriction on communication with one's government, when the plaintiff has threatened or engaged in litigation against the government" wasn't clearly established at the time.
The court similarly ruled that the officials violated the plaintiffs' right to petition the government, but that that right wasn't clearly established, either. The court said that "the right to be free from a restriction on communicating with one's government, when the plaintiff has threatened or engaged in litigation against the government" wasn't clearly established.
In defining the rights in this very specific way for purposes of the clearly-established prong of the qualified immunity test, the court said that Ashcroft v. al-Kidd prohibited it from "defin[ing] clearly established law at a high level of generality."
The court said that it wanted to address both prongs of the qualified immunity test--actual constitutional violation and clearly established--in order to provide some guidance on the actual contours of the rights at issue. (The court could have ruled the same way by addressing the clearly-established prong only, and punting on the actual constitutional violation prong.)
Sunday, April 2, 2017
In a Memorandum Opinion and Order, Judge David Hale ruled on a motion to dismiss the complaint in Nwanguma v. Trump which includes a count of incitement to riot by then-candidate Trump during a campaign event in Louisville, Kentucky on March 1, 2016. The complaint alleges that the candidate told the crowd “Get ’em out of here,” when the plaintiffs were "peacefully protesting" at a campaign rally. Allegedly as a result of the candidate's encouragement, three individual defendants pushed, shoved, and struck the three plaintiffs. The complaint contended that candidate Trump should be held vicariously liable for the tortious actions of the individual defendants; Judge Hale dismissed this count as not having sufficient allegations that the candidate (or his campaign) "had the right to control the other defendants’ actions." The complaint also contained a count regarding the candidate's negligence and failure to protect, which Judge Hale did not dismiss.
Most important from a constitutional standpoint, Judge Hale denied Trump's motion to dismiss the incitement to riot claim despite the defendant's argument that Trump's statement "Get ’em out of here” was protected by the First Amendment. As Judge Hale relates, under the landmark case of Brandenberg v. Ohio (1969), as well as the Sixth Circuit's en banc decision in Bible Believers v. Wayne County (2015), speech may not be “sanctioned as incitement to riot unless
(1) the speech explicitly or implicitly encouraged the use of violence or lawless action,
(2) the speaker intends that his speech will result in the use of violence or lawless action, and
(3) the imminent use of violence or lawless action is the likely result of his speech.”
Judge Hale analyzes each of these prongs in turn.
First, Judge Hale concludes that Trump's statement, “Get ’em out of here,” is phrased in the "imperative; it was an order, an instruction, a command." It is therefore unlike the protected speech in NAACP v. Claiborne Hardware Co. (1982) (“If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”); Hess v. Indiana (1973) (“We’ll take the fucking street again.”); or Watts v. United States (1969) (“If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”).
Second, Judge Hale concludes that the complaint states sufficient allegations of Trump's intent, although whether "he actually intended for violence to occur is beyond the scope of the Court’s inquiry at the motion-to-dismiss stage."
Third, Judge Hale rules that "the complaint adequately alleges that Trump’s statement was likely to result in violence—most obviously, by alleging that violence actually occurred as a result of the statement." Additionally, the complaint describes "a prior Trump rally at which a protestor was attacked."
The case is now on course to proceed.
Friday, March 31, 2017
The D.C. Circuit ruled today in the long-running Dhiab case that media intervenors had no First Amendment right to access redacted and videotapes classified as "secret" of force-feedings at Guantanamo Bay. The ruling overturns the district court order releasing the tapes after government redaction and ensures that the tapes won't be released (at least unless the full D.C. Circuit or Supreme Court reverses). We last posted on the case here.
The court rejected the internors' First Amendment claim under Press-Enterprise Co. v. Superior Court. The court distinguished that case, holding that it dealt with sealed testimony and exhibits in a murder case (not classified national security information, as here) and that it was a criminal prosecution (and not a habeas corpus case, as here). As to the former difference, the court noted that national security information is traditionally well protected, citing the State Secrets Privilege from Reynolds and Totten, the closed hearings in Guantanamo habeas cases, and the classified-material exception in FOIA. As to the latter difference, the court reviewed the history and concluded that "[i]n habeas corpus cases, there is no tradition of public access comparable to that recounted in Press-Enterprise II with respect to criminal trials."
The court went on to say that even if the intervenors had a First Amendment right of access to the tapes, the government's interests in protecting national security justified withholding them. In particular, the court said that the government provided sufficient evidence that the tapes could threaten security at Guantanamo Bay, incite violence against American troops abroad, and serve as propaganda to recruit fighters.
Wednesday, March 29, 2017
In an opinion and order in Hawai'i v. Trump, United States District Judge Derrick Watson has granted the motion to convert the previously issued Temporary Restraining Order against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0") into a Preliminary Injunction. This has the effect of extending the time frame of the injunction as well as making appeal likely.
Judge Watson incorporated the rationales as stated in the previous TRO as we previously discussed, but elaborated on several matters. First, Judge Watson again considered the standing issues and again concluded that both the state of Hawai'i and the individual plaintiff, Dr. Ismail Elshikh, had standing.
On the likelihood of success on the merits, Judge Watson again set out the classic Establishment Clause test articulated in Lemon v. Kurtzman (1971) and again concluded that the first prong requiring the government action to have a primary secular purpose was not met.
Judge Watson declared that "As no new evidence contradicting the purpose identified by the Court has been submitted by the parties since the issuance of the March 15, 2017 TRO, there is no reason to disturb the Court’s prior determination" (emphasis in original).
Instead, the Federal Defendants take a different tack. They once more urge the Court not to look beyond the four corners of the Executive Order. According to the Government, the Court must afford the President deference in the national security context and should not “‘look behind the exercise of [the President’s] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’” Govt. Mem. in Opp’n to Mot. for TRO 42–43 (quoting Kliendienst v. Mandel, 408 U.S. 753, 770 (1972)), ECF No. 145. No binding authority, however, has decreed that Establishment Clause jurisprudence ends at the Executive’s door. In fact, every court that has considered whether to apply the Establishment Clause to either the Executive Order or its predecessor (regardless of the ultimate outcome) has done so.
(emphasis in original). The footnote to this passage includes citations to the recently decided Sarsour v. Trump (Virginia District Judge upholds EO 2) and Int’l Refugee Assistance Project (IRAP) v. Trump (Maryland District Judge enjoins part of EO 2). Judge Watson adds
The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.
While future Executive action could cure the defects, the attempt by this second EO to merely sanitize the first EO was not sufficient.
Judge Watson declined to narrow the TRO's scope and the injunction is a nationwide one including sections 2 and 6. The judge stated he was
cognizant of the difficult position in which this ruling might place government employees performing what the Federal Defendants refer to as “inward-facing” tasks of the Executive Order.
Any confusion, however, is due in part to the Government’s failure to provide a workable framework for narrowing the scope of the enjoined conduct by specifically identifying those portions of the Executive Order that are in conflict with what it merely argues are “internal governmental communications and activities, most if not all of which could take place in the absence of the Executive Order but the status of which is now, at the very least, unclear in view of the current TRO.” Mem. in Opp’n 29. The Court simply cannot discern, on the present record, a method for determining which enjoined provisions of the Executive Order are causing the alleged confusion asserted by the Government.
In other words, the federal government cannot complain about the injunction's breadth if the government does not take steps necessary to narrow it. Quoting the Ninth Circuit panel on the original EO in Washington v. Trump, Judge Watson stated that "even if the [preliminary injunction] might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.”
Judge Watson's order and opinion set the stage for the case to be appealed to the Ninth Circuit, even as IRAP v. Trump is beginning to proceed in the Fourth Circuit.
In its opinion in Expressions Hair Design v. Schneiderman, a unanimous Court reversed the Second Circuit's conclusion that the First Amendment was not applicable to a New York statute prohibiting a credit card surcharge.
At issue is New York General Business Law § 518 prohibiting sellers from imposing a surcharge on customers who use credit cards. On the other hand, the statute allowed a "cash discount." United States District Judge Jed Rakoff had held that the New York statute regulated speech, limiting how merchants could express their differential pricing, and concluded that the statute failed the test for constitutional commercial speech under Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). The Second Circuit did not reach the Central Hudson analysis given its conclusion that there was no speech, commercial or otherwise, only conduct. The United States Supreme Court holds the statute regulates speech, at least as applied here.
The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say “$10,with a 3% credit card surcharge” or “$10, plus $0.30 for credit” because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Accordingly, while we agree with the Court of Appeals that §518 regulates a relationship between a sticker price and the price charged to credit card users, we cannot accept its conclusion that §518 is nothing more than a mine-run price regulation. In regulating the communication of prices rather than prices themselves, §518 regulates speech.
The Court did not proceed further, but remanded the case to the Second Circuit to assess 518's constitutionality, presumably under Central Hudson. However, in a footnote the Court made clear that there is a question as to whether 518 would prohibit a "two-sticker pricing scheme" such as the one that Hair Expression uses.
Justice Breyer's brief concurring opinion points out that the speech/conduct distinction may not be the wisest path, but instead the courts should consider how the challenged government action "affects an interest that the First Amendment protects." Here, Justice Breyer contends that 518 is unclear as to whether it is actually regulating disclosure (in which case the rational basis standard of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) would apply) or whether it is more traditional commercial speech under Central Hudson.
This lack of clarity in the statute causes Justice Breyer to agree with the concurring opinion by Justice Sotomayor, joined by Justice Alito, that the interpretation of the statute should be certified to New York's highest court. Sotomayor's opinion criticizes the Second Circuit for not certifying the question previously, but for choosing a "convoluted course": it "rejected certification, abstained in part,' and decided the question in part," requiring a division in the petitioners' First Amendment challenge.
Sotomayor makes it clear that the "Court's opinion does not foreclose" the Second Circuit from choosing the certification route on remand. It remains to be seen what the Second Circuit will do, but it would probably be well-advised to avail itself of the certification process.
Tuesday, March 28, 2017
In its opinion in Jacoby & Myers, LLP v. The Presiding Justices of the First, Second, Third & Fourth Depts, the Second Circuit upheld the New York Rules of Professional Responsibility prohibitions of nonlawyers investing in law firms, rejecting the firm's First Amendment challenges. The law firm argued it had rights to associate, to access the courts, and to petition the courts.
Writing for the panel, Judge Susan Carney noted that while cases such as NAACP v. Button (1963) "might casually be characterized as reflecting lawyers’ expressive rights in the causes they pursue—when those causes implicate expressive values," the Supreme Court has "never held, however, that attorneys have their own First Amendment right as attorneys to associate with current or potential clients, or their own right to petition the government for the redress of their clients’ grievances when the lawyers are acting as advocates for others, and not advocating for their own cause."
Clients have First Amendment expressive rights for which litigation may provide a vehicle. When the lawyers’ own expressive interests align with those rights, the lawyers themselves may have a cognizable First Amendment interest in pursuing the litigation. We are not aware of any judicial recognition of such an interest, however, when it comes to the lawyer’s generic act of pursuing litigation on behalf of any client.
Of course attorneys have First Amendment rights regarding their professional advertising, but the court distinguished those precedents and further rejected the asserted rights to association, access to the courts, and to petition. Moreover, the court found that even if such rights were to be recognized as asserted by the law firm, "the regulations are supported by a substantial government interest and impose an insubstantial burden on the exercise of any such First Amendment rights." Yet the court clearly stated that "rational basis review applies," and that the regulations "serve New York State’s well‐established interest in regulating attorney conduct and in maintaining ethical behavior and independence among the members of the legal profession."
Affirming the district judge, the Second Circuit decision means that the law firm's challenge has yet to survive a motion to dismiss. Yet this is most likely only the beginning of challenges to professional rules regarding lawyer and non-lawyer business relationships.
Saturday, March 25, 2017
In his opinion in Sarsour v. Trump, United States District Judge for the Eastern District of Virginia Anthony Trenga denied the Plaintiffs' motion for Temporary Restraining Order or Preliminary Injunction.
At issue is the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."
Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," was enjoined by the Ninth Circuit in Washington v. Trump,; our backgrounder on the issues is here. The President withdrew the initial EO and the Ninth Circuit denied the sua sponte motion for en banc review, but in a somewhat unusual step there was a substantive dissenting opinion authored by Judge Jay Bybee.
Recall also that regarding the March 6, 2017 EO ("Muslim Travel Ban 2.0"), two other federal district judges issued injunctions before the EO became effective. In Hawai'i v. Trump, United States District Judge Derrick Watson issued a TRO of sections 2 and 6 of the EO based on the likelihood of plaintiffs to prevail on their Establishment Clause challenge. In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a preliminary injunction of section 2(e) of the EO based on the likelihood of plaintiffs to prevail on their statutory claim under the Immigration and Nationality Act and their constitutional claim under the Establishment Clause.Judge Trenga disagrees with both Hawai'i v. Trump and IRAP v. Trump, although the opinion does not engage in a substantial dialogue with these opinions.
For example, on the statutory claim in Sarsour v. Trump, Judge Trenga concludes after reviewing "the text and structure of the INA as a whole, and specifically, the practical, operational relationships" of the provisions, that the nondiscrimination restrictions of §1152 do not "apply to the issuance or denial of non-immigrant visas or entry under §1182(f). In a footnote, Judge Trenga acknowledges that the judge in IRAP v. Trump "attempted to reconcile these seemingly contradictory provisions," and simply adds, "There, the court concluded that Section 1152 bars the President from discriminating on the basis of nationality in the issuance of immigrant visas only." (footnote 12). Judge Trenga characterized the Immigration and Nationality Act (INA) as a "legislative rabbit warren that is not easily navigated," but his ultimate conclusion seems to be based on a broad view of Executive authority. Judge Trenga writes that the he "also has substantial doubts that Section 1152 can be reasonably read to impose any restrictions on the President’s exercise of his authority under Sections 1182(f) or 1185(a)."
Similarly, on the Establishment Clause claim Judge Trenga accorded the Executive broad deference. Unlike the judges in both Hawai'i v. Trump and IRAP v. Trump, Judge Trenga found that the facial neutrality of "EO-2" was determinative. Judge Trenga held that past statements - - - or the EO-2 statements (described in a footnote as including the President's statement that EO-2 was a "watered-down version" of EO-1, and Presidential Advisor Stephen Miller's statements) - - - have not "effectively disqualified him from exercising his lawful presidential authority":
In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose. To proceed otherwise would thrust this Court into the realm of “‘look[ing] behind’ the president’s national security judgments . . . result[ing] in a trial de novo of the president’s national security determinations,” Aziz, 2017 WL 580855, at *8, and would require “a psychoanalysis of a drafter’s heart of hearts,” all within the context of extending Establishment Clause jurisprudence to national security judgments in an unprecedented way.
Likewise, on the Equal Protection claim, Judge Trenga concluded that although the EO would have a differential impact on Muslims, it was facially neutral. The Judge relied on an earlier Fourth Circuit case, Rajah v. Mukasy (2008) and articulated the standard as requiring merely a rational national security basis for an immigration measure to survive an Equal Protection Clause challenge. And again, Judge Trenga accorded the Executive wide discretion: "These are judgments committed to the political branches - - - not to the courts."
In sum, Judge Trenga's opinion aligns with the Ninth Circuit dissent from en banc review by Judge Bybee and is in opposition to the other district judges who have rendered opinions on the second EO which have enjoined its enforcement.
March 25, 2017 in Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Executive Authority, Fifth Amendment, First Amendment, Opinion Analysis, Race, Religion, Standing, Travel | Permalink | Comments (0)
Monday, March 20, 2017
The Fourth Circuit today dismissed a fire department battalion chief's First Amendment retaliation claim for his Facebook activity in violation of the Department's Social Media and Code of Conduct policies. The court also dismissed his facial challenge against the policies as moot.
The case arose when Howard County (Maryland) Fire and Rescue Services Battalion Chief Kevin Patrick Buker posted a series of statements and "likes" on his Facebook page. On January 20, 2013, Buker posted this while on duty (sics omitted):
My aide had an outstanding idea . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . .
He then "liked" a colleague's post that added ugly racial comments to this.
The assistant chief directed Buker to remove the posts pursuant to the Department's Social Media Policy. That Policy, relatively new at the time, prohibited employees from posting anything that "might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission."
Buker removed the posts, but then posted comments criticizing the Social Media Policy and the "liberals" who were behind it. The Department moved Buker out of field operations and into an administrative assignment and began an investigation.
About three weeks later, another colleague posted to his own Facebook page a picture of an elderly woman with her middle finger raised, with a caption saying that he'll post whatever he wants, and a note stating, "for you Chief." Buker "liked" it.
Shortly after that, Buker was fired for violating the Social Media Policy and the Code of Conduct. (The Code of Conduct banned "conduct unbecoming," that is, "any conduct that reflects poorly on an individual member, the Department, or County government, or that is detrimental to the public trust in the Department or that impairs the operation and efficiency of the Department.")
Buker sued, arguing that the Department fired him in retaliation for his speech, and that the Social Media Policy and Code of Conduct Policy were facially unconstitutional. The Fourth Circuit disagreed.
Applying Pickering, the court held that two of Buker's posts (the one about assaulting liberals, and the one criticizing the Social Media Policy) addressed matters of public concern. (The court assumed, without deciding, that Buker's Facebook activity constituted a "single expression of speech.") But the court said that the Department's interest in efficiency and preventing disruption outweighed Buker's interests:
- Buker's Facebook activity "interfered with an impaired Department operations and discipline as well as working relationships within the Department.
- The posts "significantly conflicted with [his] responsibilities as battalion chief," including "acting as an impartial decisionmaker and 'enforcing Departmental policies and taking appropriate action for violations of those policies.'"
- Buker's "speech frustrated the Department's public safety mission and threatened 'community trust' in the Department, which is 'vitally important' to its function."
- Buker's activity "expressly disrespect[ed] [his] superiors" after he had been reprimanded.
- The posts "disregarded and upset the chain of command."
The court dismissed Buker's facial challenge to the Social Media Guidelines and Code of Conduct as moot. The court said that although the Department changed the policies to eliminate the earlier version's prohibitions on the private use of social media, the Chief and defendants' counsel both promised the court that the Department wouldn't re-implement the old guidelines (so as to make this a "voluntary cessation" case).
Wednesday, March 15, 2017
Recall the proceedings in Washington v. Trump in which a panel opinion upheld an injunction against the January 27, 2017 Executive Order by the President, now popularly known as Muslim Ban I. Because the President withdrew the EO, replacing it with the March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" - - - enjoined today in Hawai'i v. Trump - - - proceedings in the Muslim Ban I became irrelevant and the United States dismissed the appeal. Nevertheless, upon the request of a Ninth Circuit judge, a poll was taken to determine whether the Ninth Circuit should hear the case en banc and vacate the panel opinion. Today, the order on this en banc request was rendered, and the "matter failed to receive a majority of the votes of the active
judges in favor of en banc reconsideration."
The order is accompanied by a paragraph concurring opining by Judge Reinhardt:
I concur in our court’s decision regarding President Trump’s first Executive Order – the ban on immigrants and visitors from seven Muslim countries. I also concur in our court’s determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.
The dissenting opinion of Judge Bybee, controversial in many quarters for his expansive views of Executive power, argues that the President's EO was "well within the powers of the presidency." Essentially, the dissent argues that the panel opinion did not sufficiently defer to the Executive and Congressional power over immigration. "The appropriate test for judging executive and congressional action affecting aliens who are outside our borders and seeking admission is set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972)." The dissent faults the panel opinion because it "missed" the Court's 2015 opinion in Kerry v. Din, "in which Din (a U.S. citizen) claimed that the government’s refusal to grant her Afghani husband a visa violated her own constitutional right to live with her husband. A plurality held that Din had no such constitutional right."
Judge Bybee's opinion seems to suggest that the panel misconstrued the law in service of the judge's own personal agendas, even as the opinion criticizes personal attacks on judges:
We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches—and perhaps especially when we disagree—we have to trust that the wisdom of the nation as a whole will prevail in the end.
Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress. We will yet regret not having taken this case en banc to keep those lines of authority straight.
Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.
This dissenting opinion serves as a reminder that the question of the amount of deference to the Executive regarding a "Muslim ban" is a contentious one; this dissenting opinion may also serve as a roadmap to the arguments supporting broad executive power.
[Update: Federal District Judge Theodore Chuang finds the Mandel standard inapplicable in his opinion in International Refugee Assistance Project v. Trump].
United States District Judge Derrick Watson has issued a Temporary Restraining Order in Hawai'i v. Trump against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here. Recall also that Judge Watson allowed Hawai'i to amend its original complaint challenging the previous EO.
Judge Watson's more than 40 page opinion first engages in an explanation of the facts giving rise to the litigation.
Next, Judge Watson concludes there is Article III standing. He finds that Hawai'i has standing based on its proprietary interests (and thus there was no need to reach the parens patriae standing theory). The first proprietary interest is the state's financial and intangible interests in its universities, very similar to the interests the Ninth Circuit found sufficient in Washington v. Trump, involving the previous EO. The second proprietary interest was to the state's "main economic driver: tourism." Additionally, Judge Watson concludes that Dr. Elshikh, added as a plaintiff in the amended complaint has standing, specifically addressing the Establishment Clause claim in which injury can be "particularly elusive." Moreover, his claim is ripe.
As to the likelihood of success on the merits prong of the TRO requirement, Judge Watson concluded that the plaintiffs "and Dr. Elshikh in particular" are likely to succeed on the merits of the Establishment Clause claim (and thus the court did not reach the other claims).
Judge Watson acknowledged that the EO does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order—unlike its predecessor—contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.
Nevertheless, the court can certainly look behind the EO's neutral text, despite the Government's argument to the contrary, to determine the purpose of the Government action. Judge Watson stated that the record before the court was "unique," including "significant and unrebutted evidence of religious animus driving the promulgation" of the EO and its "related predecessor." Judge Watson then provided excerpts of several of Trump's statements, and rejected the Government's caution that courts should not look into the "veiled psyche" and "secret motives" of government decisionmakers:
The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)). Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order:
Rudolph Giuliani explained on television how the Executive
Order came to be. He said: “When [Mr. Trump] first announced
it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a
commission together. Show me the right way to do it legally.’”
SAC ¶ 59, Ex. 8.
On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].” SAC ¶ 74.
In a footnote, Judge Watson lists "many more" examples.
Moreover, Judge Watson engaged with the plaintiffs' arguments that the EO was contextual, including pointing out that the security rationales listed in the EO included an incident involving an Iraqi national when Iraq was no longer included in the EO; the delayed timing of the EO; and the focus on nationality rather than residence. But Judge Watson noted that while such "assertions certainly call the motivations behind the Executive Order into greater question, they are not necessary to the Court's Establishment Clause determination."
Judge Watson does note that context could change and that the Executive is not forever barred, but as it stands the purpose of the EO is one that has a primary religious discriminatory purpose and will most likely not survive the Establishment Clause challenge.
Having found a likelihood of success on the merits of the Establishment Clause claim, Judge Watson easily found there was irreparable harm and that a temporary restraining order was appropriate.
Judge Watson's injunction against Sections 2 and 6 of the EO applies "across the Nation." Should an emergency appeal be sought, Judge Watson's order already denies a stay of the TRO, but does direct the parties to submit a briefing schedule for further proceedings.
Monday, March 6, 2017
The President's revised Executive Order (March 6, 2017), entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," has substantial changes from the previous EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here.
This new EO, signed without the fanfare of the previous one, acknowledges that the previous EO "has been delayed by litigation" and does seek to remedy some of the problems with the EO. For example, the scope is much narrower and the suspension of entry excludes "any lawful permanent resident" as well as some other categories. This will make the applicability of constitutional protections less clear. While the Constitution protects non-citizens, it does not have global applicability.
The new EO avers that the previous EO was not a "Muslim Ban":
Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP [US Refugee Admissions Program] in light of their particular challenges and circumstances.
Nevertheless, this new EO does not mention otherwise religion. Of course, omitting references to "religion" or stating that an act is not motivated by animus does not end the inquiry. Instead, there will most certainly be arguments that courts can consider the new EO as religiously-motivated under either First Amendment or Equal Protection Clause doctrine.
The new EO also changes the seven nations to six - - - omitting Iraq as a "special case." This could also give rise to a national origin classification - - - is Iraq, with its "active combat zones" so different from Libya and Yemen which are described similarly? The omission of Iraq is also problematical because the new EO recites as part of its justification this specific incident: "For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses."
That relatively brief paragraph, §1(h), ends by stating that "The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation." Issues with the Attorney General and counterterrorism aside, the objections of other government officials regarding the efficacy of the travel ban would certainly figure in any judicial measurement of the fit between the travel ban and the government purposes.
In terms of litigation and constitutional challenges, the first order of business will be procedural questions regarding whether the new EO can be substituted for the previous EO through amended complaints and other pleadings or will there need to be new cases.
Sunday, March 5, 2017
Reversing the district judge, the D.C. Circuit's opinion in United States v. Bronstein upheld the prohibition of certain speech in the United States Supreme Court against a challenge that it was unconstitutionally vague and thus violated the Fifth Amendment's Due Process Clause.
The statute, 40 U.S.C. § 6134, entitled “Firearms, fireworks, speeches, and objectionable language in the Supreme Court Building and grounds,” provides:
It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.
The district judge had found that “harangues” and “orations” are terms that “cannot be determined without reference to subjective perceptions and individual sensitivities," and thus the statute was not sufficiently precise. The unanimous D.C. Circuit panel found that the statute's
core meaning is delivering speeches of various kinds to persons within the Supreme Court’s building and grounds, in a manner that threatens to disturb the operations and decorum of the Court. In the context of the Supreme Court’s building and grounds, the terms’ core meaning proscribes determinable conduct.
Moreover, the court found that "while “harangue” and “oration” may not roll off the average person’s tongue today," this "does not alter their possession of a settled meaning around public speeches." The general sense is "making a speech to a public assembly," and based on the title of the statute, the sense is clear that this pertains to "noises" intended to "disrupt the court's operations."
In its application, the opinion by Judge Janice Rogers Brown somewhat oddly includes a cinematic reference:
Turning to the facts here, a person of ordinary intelligence could read this law and understand that, as a member of the Supreme Court’s oral argument audience, making disruptive public speeches is clearly proscribed behavior—even in staccato bursts, seriatim. And yet, in a coordinated fashion, each Appellee is alleged to have directed a variation of the same message to the Justices of the Supreme Court and the assembled audience. Their coordinated standing, facing the bench, and messaging indicate the Appellees were addressing the Court and gallery. Cf. MY COUSIN VINNY (20th Century Fox 1992) (Judge Chamberlain Haller: “Don’t talk to me sitting in that chair! . . . When you’re addressing this court, you’ll rise and speak to me in a clear, intelligible voice.”). Viewed objectively, these alleged acts could easily be considered speeches to a public assembly that tended to disrupt the Court’s operations—conduct covered by § 6134’s prohibition of “make a harangue or oration.”
Earlier in the Bronstein opinion, joined by Judge Srinivasan and Senior Judge Williams, Judge Brown does provide more of the substance of the speeches which included objections to Citizens United and the legal construction of money as speech. Judge Brown notes that the protest occurred on "April Fools Day of 2015;" the protest group describes the timing as being on the eve of the one year anniversary of McCutcheon v. FEC. (There were no arguments on April 2, the actual anniversary, or the day after).
While a due process decision, Bronstein is consistent with judicial rejection of First Amendment challenges to statutes prohibiting expression in and around the United States Supreme Court. We've previously discussed the "special status" of the United States Supreme Court building, the Supreme Court's efforts to ensure its regulations were constitutional, as well as the D.C. Circuit's opinion in Hodge v. Talkin (2015) which upheld the constitutionality of statutory prohibitions of assembly and display of flags or signs on the United States Supreme Court plaza, and the arrest of a person for wearing a jacket with the word "Occupy" on it.
Monday, February 27, 2017
The Court heard oral argument in Packingham v. North Carolina in which the North Carolina Supreme Court upheld the constitutionality of a state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access certain commercial social networking sites. Packingham was convicted of a felony for his facebook page on which he wrote " Thank you Jesus. God is good" regarding a result on his parking ticket.
Justice Kagan distilled the importance of the issue in her questioning of the North Carolina Deputy Attorney General, Robert Montgomery:
JUSTICE KAGAN: So --so a --so a person in this situation, for example, cannot go onto the President's Twitter account to find out what the President is saying today?
JUSTICE KAGAN: Not only the President. I mean, we're sort of aware of it because the President now uses Twitter. But in fact, everybody uses Twitter. All 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucial --crucially important channel of political communication. And a person couldn't go onto those sites and find out what these members of our government are thinking or saying or doing; is that right?
Montgomery answered both queries in the affirmative, but suggested that Packingham could go onto the websites of government officials to learn their views.
The possibility of ample available alternatives, the question of narrow tailoring, and the overbreadth of the statute were the linchpins of the First Amendment argument, as David Goldberg representing Packingham explained when Justice Kennedy inquired about the "doctrinal choices" supporting an argument that the statute was unconstitutional. There were analogies to felon disenfranchisement and felons restricted Second Amendment rights, but Goldberg insisted that the First Amendment was different.
Prompted by this distinction based in part on originalist invocations, Chief Justice Roberts seemed to eschew originalism, given that the issue involves "access to websites and all the sort of things we're dealing with here." For his part, Justice Alito tried "to translate this into terms that would be familiar at the time of the adoption of the First Amendment," analogizing to a state law prohibiting anyone convicted of kidnapping children from visiting a nursery school. Goldberg first noted that the First Amendment did not apply to the states at the time of the Framers, but then stated that there was not a First Amendment right to visit a nursery school.
The notion that internet social sites are "virtual places" like playgrounds was one advanced by the state attorney, but one that the Justices did not seem to accept. Yet even if the virtual-spatial analogy was pertinent, the type of prophylactic rule upheld in Burson v. Freeman (1992) regarding a prohibition of campaigning within 100 feet of a polling place, seemed unpersuasive. Montogomery seemed to contend this was North Carolina's best case, to which Justice Kennedy replied that it "does not help you at - - - at all." The conversation continued:
JUSTICE KENNEDY: That was --number one, it was applied to everyone. It was 100 yards. You could have all the political speech in the world outside the --was it 100 yards or 100 feet, whatever it was. It seems to me that --do you have --do you have any better case than that?
MONTGOMERY: Well, the only --the reason -
JUSTICE KENNEDY: If you cite Burson, I think --I think you lose.
MONTGOMERY: The reason that that case is the one that I mentioned is because the rationale for that was that these kinds of crimes that happened in that zone often go undetected -
JUSTICE KAGAN: Mr. Montgomery, I agree with you. That's your closest case. It's the one that I asked Mr. Goldberg about, because it's the only case that I know of where we've permitted a prophylactic rule where we've said not all conduct will have these dangerous effects, but we don't exactly know how to separate out the dangerous --dangerous speech from the not-dangerous speech, so we're going to have a prophylactic rule. That is like one out of a zillion First Amendment cases that we've decided in our history.
And as Justice Kennedy says, there are many reasons to think it's distinguishable from this one.
MONTGOMERY: Well, the fact that it applied to all in Burson, I believe, makes our case a better case because it doesn't apply to all. It applies to sex offenders who have committed crimes, who have shown that they cannot conform to the law and are likely to be recidivists. So the fact that it's a narrower group is not --does not make it more problematic, but makes it --makes it better than Burson.
JUSTICE KENNEDY: Well, that was --that was not the rationale of Burson v. Freeman. Under that rationale, you --you could have said that it applies only to members of a political party and it would have been narrower. That would make it worse. The Petitioner here is saying you are singling me out and saying that I can't have the First Amendment rights that everybody else does. That's exactly the opposite of what was happening in Burson.
MONTGOMERY: But it wouldn't be like singling out a political party. These are people who have committed sex offenses. So, again, they have had certain disabilities already, civil disabilities. . . .
While making predictions of outcomes based on oral arguments is always fraught, the fact that Mr. Montgomery did not have a better "best case" than Burson to support the constitutionality of the North Carolina statute strongly suggests the case will be reversed.
Wednesday, February 22, 2017
In a brief Order in IMBD v. Becerra, federal district judge Vince Chhabria enjoined California AB 1687, added as §1798.83.5, stating that "it's difficult to imagine how AB 1687 could not violate the First Amendment."
The statute provides that a commercial online entertainment employment service provider, such as IMBD,
that enters into a contractual agreement to provide employment services to an individual for a subscription payment shall not, upon request by the subscriber, do either of the following:(1) Publish or make public the subscriber’s date of birth or age information in an online profile of the subscriber.(2) Share the subscriber’s date of birth or age information with any Internet Web sites for the purpose of publication.
To be sure, the government has identified a compelling goal – preventing age discrimination in Hollywood. But the government has not shown how AB 1687 is "necessary" to advance that goal. In fact, it's not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all. And even if restricting publication on this one website could confer some marginal antidiscrimination benefit, there are likely more direct, more effective, and less speech-restrictive ways of achieving the same end. For example, although the government asserts generically that age discrimination continues in Hollywood despite the long-time presence of antidiscrimination laws, the government fails to explain why more vigorous enforcement of those laws would not be at least as effective at combatting age discrimination as removing birthdates from a single website. Because the government has presented nothing to suggest that AB 1687 would actually combat age discrimination (much less that it's necessary to combat age discrimination), there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.
Monday, February 20, 2017
In its divided opinion in Bormuth v. County of Jackson (Michigan), a panel of the Sixth Circuit has concluded that the prayer practices of a county commission violate the First Amendment's Establishment Clause.
The constitutionality of legislative prayer has most recently been before the United States Supreme Court in the 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 Sixth Circuit first held that the County of Jackson's Board of Commissioners’ practice strays from the traditional purpose and effect of legislative prayer:
A confluence of factors distinguishes the Jackson County practice from the practices upheld in Marsh and Town of Greece. These factors include the deliverance of the invocations by the Commissioners themselves in a local setting with constituent petitioners in the audience, as well as the Board’s intentional decision to exclude other prayer givers in order to control the content of the prayers.
Additionally, the Sixth Circuit in Bormuth was troubled by the issue of coercion raised by the plaintiff. The facts were not only that the Chair of the Jackson County Commission generally "directs those in attendance to “rise” and “assume a reverent position" before a County Commissioner delivers a Christian prayer, but that a Commissioner "made faces" and "turned his chair around" when Bormuth expressed concern about the prayers. One Commissioner later stated that Bormuth was attacking "my Lord and savior Jesus Christ," and another Commissioner remarked, “All this political correctness, after a while I get sick of it.” As Judge Karen Nelson Moore wrote for the panel majority:
Admittedly, the precise role of coercion in an Establishment Clause inquiry is unclear, especially within the context of legislative prayer. In that sense, both Justice Kennedy’s and Justice Thomas’s opinions involve at least some departure from the state of the law as it existed before Town of Greece. However, given that there is controlling precedent supporting Justice Kennedy’s opinion and no controlling precedent supporting Justice Thomas’s concurrence, Justice Thomas’s concurrence is neither the “the least doctrinally far-reaching-common ground among the Justices in the majority,” nor the “opinion that offers the least change to the law.” [citation omitted]. What is more, when viewed within the context of the majority’s holding, Justice Kennedy’s opinion clearly represents the narrowest grounds. The majority’s holding was that there was no coercion. According to Justice Kennedy, this was because there was no coercion in the record. According to Justice Thomas, this was because there could never be coercion absent formal legal compulsion. Within the context of a ruling against the respondents, therefore, the narrower opinion is Justice Kennedy’s, not Justice Thomas’s. Accordingly, Justice Kennedy’s conception of coercion is the holding of the Court under binding Sixth Circuit precedent.
In finding coercion in Bormuth, Judge Moore noted that Town of Greece ruled that “[t]he analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.” Judge Moore then detailed the presence of all three of these criteria in Bormuth.
Judge Moore discussed Lund v. Rowan County, North Carolina, in which a divided Fourth Circuit held that the identity of the person leading a prayer opening the county Board of Commissioners meeting was irrelevant and upheld a prayer led by a Board member. Dissenting Sixth Circuit Judge Griffin wrote at length and relied heavily on Lund. For her part, Judge Moore specifically stated that Judge Wilkinson’s panel dissent in Lund is much more convincing than the majority opinion, and noted that because Lund has been granted a rehearing en banc, this view is one that "a significant number of Fourth Circuit judges presumably share." Additionally, however, Judge Moore found that there are "significant factual differences" between the practice at issue in the Fourth Circuit and the one before the court in the Sixth Circuit.
The issue of legislative prayer in the context of local government continues to vex the courts; there is almost sure to be a petition for rehearing en banc in the Sixth Circuit mirroring the successful one in the Fourth.
image: Bernardo Strozzi, St Francis in Prayer, circa 1620, via National Gallery of Art