Friday, July 1, 2016
Federal Judge Issues Preliminary Injunction Against Mississippi Law Seeking to Protect LGBT Discrimination
In a 60 page opinion in Barber v. Bryant, United States District Judge Carlton Reeves (pictured below) found Mississippi HB 1523, set to become effective July 1, constitutionally problematical under both the Establishment Clause and the Equal Protection Clause, and thus preliminary enjoined its enforcement.
The bill, Protecting Freedom of Conscience from Government Discrimination Act," sought to insulate the specific "sincerely held religious beliefs or moral convictions" that:
(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and
(c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.
Judge Reeves characterized HB 1523 as a predictable overreaction to the Court's same-sex marriage opinion in Obergefell v. Hodges a year ago. In discussing the debates around the HB 152 and its texts, Judge Reeves also noted that the challenges to HB 1523 were also predictable, providing his rationale for consolidating the four cases.
Judge Reeves then considered standing of the various plaintiffs as well as Eleventh Amendment immunity, followed by the established preliminary injunction standards which have at their heart the "substantial likelihood of success on the merits."
On the Equal Protection claim, Judge Reeves relied on Romer v. Evans, and found that the legislative history established animus in intent:
The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were “put in a solitary class with respect to transactions and relations in both the private and governmental spheres” to symbolize their second-class status.
Judge Reeves also found that the law would have a discriminatory effect. Judge Reeves applied the lowest level of scrutiny, but found that even "under this generous standard, HB 1523 fails." He agreed with the State's contention that HB 1523 furthers its “legitimate governmental interest in protecting religious beliefs and expression and preventing citizens from being forced to act against those beliefs by their government" is a "legitimate governmental interest." But concluded that the interest is "not one with any rational relationship to HB 1523." Indeed, the court declared that "deprivation of equal protection of the laws is HB 1523’s very essence."
On the Establishment Clause claim, Judge Reeves rehearsed the history of the Clause before focusing on two conclusions: HB 1523 "establishes an official preference for certain religious beliefs over others" and "its broad religious exemption comes at the expense of other citizens."For this latter point, Judge Reeves interestingly relied on and distinguished the recent controversial Burwell v. Hobby Lobby construing RFRA to confer a religious conscience accommodation to closely-held corporations:
The difference is that the Hobby Lobby Court found that the religious accommodation in question would have “precisely zero” effect on women seeking contraceptive coverage, and emphasized that corporations do not “have free rein to take steps that impose disadvantages on others.” The critical lesson is that religious accommodations must be considered in the context of their impact on others.
Unlike Hobby Lobby, HB 1523 disadvantages recusing employees’ coworkers and results in LGBT citizens being personally and immediately confronted with a denial of service.
Judge Reeves opinion is careful and well-reasoned, but is nevertheless sure to be appealed by Mississippi officials unless they alter their litigation posture.
July 1, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0)
Monday, June 20, 2016
On behalf of Citizens for Trump, the ACLU has filed a complaint against the City of Cleveland for its Event Zone Permit Regulations, arguing that the regulations and the delayed permit processing, violate the First Amendment, as well as the Ohio Constitution and the Due Process Clause.
Central to the First Amendment claim is the contention that the "event zone" is far too large and
apply far beyond the part of the city where the Convention activities will take place, and instead encompass a 3.3-square mile expanse that includes business districts and neighborhoods where people live, sleep and conduct their daily activities.
Additionally, the complaint alleges that the permitting regulations are unduly restrictive, limited in number, space, and time. ("The City will not issue any permits for any kind of public gathering or parade in the Event Zone throughout the Convention period, except for one designated parade route that lies along the southern border of the Zone. The City will only allow permit holders to use that route for 50 minutes each, and only 18 of these 50-minute parade slots are available during the entire four-day Convention."
The Cleveland regulations ban a host of dangerous items within the zone. This includes firearms, and interestingly guns are banned in the convention arena itself, a stance that has attracted some controversy given the Second Amendment interpretations by the RNC. However, the ban in the zone extends beyond explosives, drones, fireworks, and rockets, to other less predictable items such as aerosol cans, locks, ladders, canned goods, and tennis balls. There is an exemption for persons who live or work in the event zone, or are on law enforcement or medical duty.
Nevertheless, the ACLU challenge may be a difficult one. The district judge considering this challenge will undoubtedly be aware that the RNC 2016 convention is predicted to be volatile - - - inside and out. The doctrine on free speech zones and protest zones has been increasingly accepted by the courts with deference to the government. Recall Wood v. Moss in which the United States Supreme Court unanimously if implicitly validated free speech zones used in a Presidential appearance. While it was a Bivens action including a claim of qualified immunity, the Court importantly also rejected the claim of viewpoint discrimination - - - that the Secret Service’s manner of “zoning” the protestors discriminating against anti-Bush demonstrators and in favor of pro-Bush demonstrators. The 2004 RNC convention in New York City also had its share of First Amendment litigation, with the Second Circuit upholding the constitutionality of various arrests, again against a claim for damages.
Wednesday, June 8, 2016
Daniel McGowan was incarcerated in the federal Bureau of Prisons (BOP), but had been transferred to the Brooklyn House Residential Reentry Center (“RRC”) near the end of his sentence with work passes and other privileges. McGowan is well known as an environmental activist and featured prominently in the 2011 documentary, If a Tree Falls: A Story of the Earth Liberation Front.
While at RCC in April 2013, McGowan published an article on Huffington Post entitled "Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech." This article caused the RCC manager to essentially revoke the RRC status and remand McGowan back to the Bureau of Prisons - - - in solitary confinement - - - for an infraction of a regulation that provided “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.”
But this "byline regulation" had been declared unconstitutional by a federal district court, Jordan v. Pugh, 504 F. Supp. 2d 1109, 1124 (D. Colo. 2007). Soon thereafter, the BOP had instructed staff not to enforce it. In 2010, the BOP issued an interim regulation rescinding the byline regulation; in 2012 it issued the final rule.
McGowan's lawyers soon figured out the byline regulation under which he had been charged was no longer in force and McGowan was returned to the RRC.
McGowan sued the RCC personnel for a violation of the First Amendment, but the Second Circuit, affirming the district judge, rejected the claim in its opinion in McGowan v. United States, concluding that the BOP was insulated by qualified immunity. Qualified immunity protects the government from liability for violation of a constitutional right unless that right was "clearly established" at the time of the violation. Here, despite the conclusion of a district judge six years prior that the byline regulation was unconstitutional and the rescission of the byline regulation by the BOP, the Second Circuit held that the right the byline regulation infringed was not clearly established:
We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article. The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).
In short, the " only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding."
The court also rejected claims sounding in tort regarding the BOP's failure to follow its own regulations.
Thus, McGowan has no remedy for the BOP enforcing a rescinded and it seems unconstitutional regulation that caused his removal from a work program to solitary confinement.
Saturday, June 4, 2016
In Clay, the Court reversed Ali's conviction for "willful refusal to submit to induction into the armed forces."
The Department of Justice had asserted that Ali's claim for conscientious objector status did not meet the "religious" requirement, even as it had previously been expanded in the now-classic cases of United States v. Seeger (1965) and Welsh v. United States (1970). The Department of Justice had stated:
‘It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant's claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.’
However, the Department of Justice abandoned that argument before the United States Supreme Court:
In this Court the Government has now fully conceded that the petitioner's beliefs are based upon ‘religious training and belief,’ as defined in United States v. Seeger, ‘There is no dispute that petitioner's professed beliefs were founded on basic tenets of the Muslim religion, as he understood them, and derived in substantial part from his devotion to Allah as the Supreme Being. Thus, under this Court's decision in United States v. Seeger, his claim unquestionably was within the ‘religious training and belief’ clause of the exemption provision.' [quoting the DOJ Brief]. This concession is clearly correct. For the record shows that the petitioner's beliefs are founded on tenets of the Muslim religion as he understands them. They are surely no less religiously based than those of the three registrants before this Court in Seeger. See also Welsh v. United States.
[citations and footnote omitted]
A unanimous Supreme Court thus reversed the conviction in a per curiam opinion. (Thurgood Marshall, who had been Solicitor General, recused himself).
Justice William Douglas, in his inimitable style, concurred separately with a discourse on the Koran and the meaning of “jihad.” Douglas concluded:"What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust."
Thursday, June 2, 2016
The Ninth Circuit yesterday revived a student group's First Amendment retaliation complaint against the Arizona Board of Regents for pulling the plug on the group's funding in response to the group's public advocacy.
The ruling keeps this free speech case alive and sends it back to the district court.
The case arose when the Arizona Students' Association used its student-generated fees to push a ballot initiative that would increase funding for public education. In response, the state Board of Regents, which collected the fees and distributed them to the ASA, decided to withhold the fees that it already collected for the Spring 2013 semester and to make it harder for the ASA to collect future fees.
The ASA sued, but the district court dismissed the case. The court said that the Board enjoyed immunity under the Eleventh Amendment and, in any event, the complaint failed to state a claim.
The Ninth Circuit reversed. The court ruled that the ASA could (and did) state a Young claim for injunctive relief, but that the group failed to name individual Board members, as required under Young. The court said that the lower court should have granted ASA's motion to amend its complaint in order to name individuals and to comply with Young.
As to the merits, the appeals court ruled that ASA stated a plausible First Amendment retaliation claim. The court rejected the arguments that the Board had no obligation to pay for ASA's speech in the first place and that the fees were not a valuable government benefit:
ABOR had no affirmative obligation to collect or remit the ASA fee, but having done so for fifteen years at no cost, ABOR could not deprive the ASA of the benefit of its fee collection and remittance services in retaliation for the ASA's exercise of its First Amendment rights. ABOR's fee collection falls within the range of government benefits we have previously recognized as sufficiently valuable to give rise to a retaliation claim. Indeed, the ASA alleged that its student fees were allocated to its efforts to exercise core political speech. As we have previously held in other First Amendment retaliation cases, and as we now hold in this case, the collection and remittance of funds is a valuable government benefit, and a change in policy undertaken for retaliatory purposes that results in the deprivation of those funds implicates the First Amendment.
Tuesday, May 10, 2016
The D.C. Circuit ruled in Jankovic v. International Crisis Group that a supporter of former Serbian Prime Minister Zoran Djindjic failed to make out a defamation case against the International Crisis Group for critical statements in an ICG report.
The ruling means that plaintiff Milan Jankovic's case against the ICG is dismissed. (Jankovic is also known as Philip Zepter.)
Zepter, a prominent Serbian businessman, sued the ICG for defamation after the organization published a report that said that Zepter was a member of the "New Serbian Oligarchy" and that he was "associated with the Milosevic regime and benefited from it directly." The ICG report also said that individuals like Zepter continued to be in positions of power and to enjoy access to public resources, and that few of the "crony companies" had been subject to legal action, despite promises by post-Milosevic reformers. The district court concluded that a reasonable reader could construe the statements as saying that Zepter was a crony of Milosevic and supported the regime in exchange for favorable treatment.
As an initial matter, the D.C. Circuit applied its three-part rule and concluded that Zepter was a limited-purpose public figure. The court said that (1) the controversy was public, (2) Zepter played a significant role in it, and (3) the defamatory statement was germane to Zepter's participation. As to (2), the court said that "[t]he evidence . . . shows that [Zepter] was an outspoken supporter, financial backer, and advisor of Prime Minister Djindjic [who] paid over $100,000 to a lobbyist to support [Djindjic's] effort to improve relations between the United States and Serbia." "The evidence shows that Zepter had voluntarily thrust himself into ensuring that Serbia underwent reforms in the post-Milosevic era."
If there seems to be a disconnect between Zepter's role as a Djindjic supporter and a Milosevic crony, here's what the court said: "Yet even if Zepter was an important figure in the Serbian reform effort mainly due to his relationship with Prime Minister Djindjic, his relationship to Milosevic is relevant to Zepter's role in the controversy. Linking Zepter to Milosevic would be relevant to understanding Zepter's role and why he wanted to be involved in the reform effort led by Prime Minister Djindjic."
The court went on to say that Zepter failed to show evidence of actual malice. "What is still missing is evidence that ICG had 'serious doubts' about the truth of the defamatory statement or that it published the statement with a high degree of awareness of its probable falsity, such that ICG acted with reckless disregard for the statement's truth."
The ruling ends Zepter's case against the ICG.
Wednesday, April 27, 2016
The D.C. Circuit ruled today in Holmes v. FEC that a lower court erred in not certifying a challenge to federal base contribution limits to the en banc D.C. Circuit.
The ruling means that the full D.C. Circuit will take up the question whether federal base contribution limits violate the First Amendment.
The case arose when the plaintiffs challenged the federal base contribution limit of $2,600 "per election" as violating free speech. They wanted to contribute $5,200 to a congressional candidate in the general election, but the "per election" limit prohibited this. (They could have contributed $2,600 in the primary, then another $2,600 in the general, but they didn't want to contribute in the primary.) They argued that language in the plurality opinion in McCutcheon supported their claim: "Congress's selection of a $5,200 base limit [the combined limit for a primary and general election, according to the plaintiffs] indicates its belief that contributions of that amount or less do not create a cognizable risk of corruption."
The district court declined to certify the question to the D.C. Circuit, because the plaintiffs' argument contradicted "settled law," that is, Supreme Court precedent.
The D.C. Circuit reversed. The court said,
We therefore do not think a district court may decline to certify a constitutional question simply because the plaintiff is arguing against Supreme Court precedent so long as the plaintiff mounts a non-frivolous argument in favor of overturning that precedent. That the plaintiff will be fighting a losing battle in the lower courts does not necessarily make the question "obviously frivolous," or "wholly insubstantial," or "obviously without merit." The plaintiff has to raise the question to ensure that it is preserved for Supreme Court review. And certifying the question fulfills Section 30110's evident purpose of accelerating potential Supreme Court review.
At the same time, the court declined to order certification for a related Fifth Amendment claim against base limits. The court said that this claim was based on regulations, not the Act, and therefore not subject to certification.
Tuesday, April 26, 2016
Supreme Court Decides First Amendment Protects "Mistaken" Perception of Political Activity by Public Employee
In its relatively brief opinion in Heffernan v. City of Paterson, NJ, the Court decides that the First Amendment is applicable when a government employer takes an adverse employment action against an employee for perceived (but not actual) political activity. Heffernan, a police officer, was demoted for his perceived political activity: he had decided to stay neutral but was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn" and was therefore demoted.
The majority opinion, authored by Justice Breyer, began by noting that the First Amendment "generally prohibits"government officials from "dismissing or demoting an employee because of the employee’s engagement in constitutionally protected political activity" and posing the question of whether "the official’s factual mistake makes a critical legal difference."
In determining that the factual mistake is not a critical legal difference, Breyer's 8 page opinion for the Court concludes that it is the "government's reason" that "counts." Supporting this conclusion is the language of the First Amendment itself:
Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.”
(This point was made by Justice Ginsburg in oral argument). Additionally, the conclusion focusing on the government's rationale supports the underlying rationale of the rule:
The constitutional harm at issue in the ordinary case consists in large part of discouraging employees—both the employee discharged (or demoted) and his or her colleagues—from engaging in protected activities . . . . The upshot is that a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.
Finally, Breyer's opinion for the Court noted that the recognition of mistaken employer beliefs will not open the floodgates (or as the Court phrases it "impose significant costs on the employer"), because "the employee will, if anything, find it more difficult to prove that motive, for the employee will have to point to more than his own conduct to show an employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities."
In remanding the case, the Court did recognize that Heffernan may have been dismissed under a "different and neutral policy," but did not express its views on that issue.
Dissenting, Justice Thomas joined by Justice Alito - - - in an opinion as long as the one for the Court - - - stressed that Heffernan did not have a constitutional right that had been violated: "The mere fact that the government has acted unconstitutionally does not necessarily result in the violation of an individual’s constitutional rights, even when that individual has been injured."
In oral argument, Justice Alito had described the issue as being "like a law school hypothetical." The Court, however, has decisively answered the question in favor of construing the First Amendment to prohibit government "wrongs" rather than requiring the actual exercise of individual "rights."
Monday, April 18, 2016
In its relatively brief but important opinion in In re William Goode, the Fifth Circuit found that Western District of Louisiana Local Criminal Rule 53.5 (“L. Crim. R. 53.5”), violated the First Amendment as applied to Goode.
The rule provides:
During the trial of any criminal matter, including the period of selection of the jury, no lawyer associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial, for dissemination by any means of public communication, except that the lawyer may quote from or refer without comment to public records of the court in the case.
In Goode's situation, he was an attorney "associated" with the defense although not defense counsel in the criminal case. Instead, he was assisting the two defendants, both of whom were also attorneys.
During the trial, one of the defendant attorneys "suffered from a self-inflicted gunshot wound." The prosecution stated it would not oppose a mistrial, but before the judge ordered a mistrial, Goode "gave interviews to two media outlets." Goode contended he was under the belief that a mistrial would be granted and that a reporter had promised to hold the story until the mistrial was granted, although the story ran online before the mistrial was granted. The Chief Judge of the district later suspended Goode from practice in the district court for six months.
The Fifth Circuit discussed Gentile v. State Bar of Nevada (1991) as well as Fifth Circuit precedent that held that "prior restraints on trial participants must be narrowly tailored to only prohibit speech that has a “meaningful likelihood of materially impairing the court’s ability to conduct a fair trial.” and that the "prior restraint must also be the least restrictive means available." The unanimous Fifth Circuit panel found that the application of the "expansive" Rule 53.5 that was applied to Goode was a prior restraint and was neither narrowly tailored nor the least restrictive means possible.
While the Fifth Circuit did not address the facial challenge and while Goode's situation has unique features, the Fifth Circuit's opinion casts the shadow of unconstitutionality on the local Rule 53.5.
Tuesday, April 12, 2016
The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints. In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot.
Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:
- (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
[emphasis added]. Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot. Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse." The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”
The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed.
Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases. The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy. The court stated:
The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.
Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.
In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness. The Nevada move is discussed in the video below featuring some of the children involved.
April 12, 2016 in Courts and Judging, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Mootness, Opinion Analysis, Religion, Sexuality, Standing, Television | Permalink | Comments (1)
Tuesday, March 29, 2016
An equally divided Supreme Court today affirmed the Ninth Circuit's ruling upholding public-sector union fair-share fees against a First Amendment challenge. The one-sentence per curiam ruling said nothing on the merits.
The case, Friedrichs v. California Teachers Association, almost surely represented the end of public-sector union fair-share fees. The Court had sent a couple signals in recent Terms that it was prepared to overturn Abood v. Detroit Board of Education, the 1977 case upholding fair-share fees, and oral arguments earlier this year suggested that this was the case to do it.
But with Justice Scalia's passing (after oral arguments in the case), the Court divided four to four, upholding the lower court, which upheld fair-share fees.
The ruling today leaves fair-share fees on the books--at least for now, unless and until Justice Scalia's replacement votes with the four traditional conservatives to overturn it in a future case. But the Court's more recent cases--the ones that teed up the challenge in Friedrichs--also stay on the books. So Abood and the Ninth Circuit ruling in Friedrichs still represent the law, but under Harris and Knox, Abood is still hanging by a thread.
The new justice will be the swing vote on this issue, and will say whether public-sector union fair-share fees stay, or go.
Friday, March 11, 2016
The Eighth Circuit ruled today that the ACLU lacked standing to bring a case against the director of the Missouri Department of Corrections to stop him from enforcing the state's ban on revealing the identities of execution team members. The ruling is a set-back for the ACLU and its efforts to disclose information about the state's executions, and, in particular, who provides the drugs. (Publicizing the providers has been an effective strategy by anti-death-penalty advocates to get those providers to stop providing.)
The case arose when the ACLU realized that it may have posted information about Missouri's executions (obtained under the Missouri Sunshine Law) that included "the identity of a current or former member of an execution team" in violation of a state law that prohibits revealing this information. The organization only realized the potential violation after it saw how the Department defined the members of the team--to include "anyone selected by the department director who provides direct support for the administration of lethal chemical, including individuals who prescribe, compound, prepare, or otherwise supply the lethal chemicals for use in the lethal injection procedure." So the organization removed the material from its web-site and moved quickly to sue the director for declaratory and injunctive relief, arguing that the law violated free speech, free press, and due process.
The director moved to dismiss, claiming that he was immune under the Eleventh Amendment, that the ACLU lacked standing, and that the claims failed as a matter of law.
The Eighth Circuit today sided with the director on immunity and standing (and didn't say anything on the merits). The court ruled that the director was immune, because under the law he has no role in enforcing the prohibition, even if he has authority to define the members of the execution team. But the court said that defining the members wasn't an enforcement action within the meaning of Ex Parte Young.
The court also ruled that the ACLU lacked standing. That's (again) because the director has no authority to enforce the prohibition. (Instead, the law provides for a civil cause of action by any execution team member against anyone who reveals his or her identity.) The court said that this means that the director's action (defining the execution team) didn't cause the ACLU's injury, and an injunction against the director wouldn't redress it.
But the court did recognize that the ACLU suffered an injury--an objectively reasonable fear of legal action that chills its speech. Because this fear derives from the possibility of a team member's suit, the organization could probably could sue a team member who appears in its materials for the same relief. Or it could post the material, wait to be sued, and then raise the constitutional defenses.
Wednesday, March 2, 2016
The Tenth Circuit ruled today in Coalition for Secular Government v. Williams that burdensome state disclosure requirements as applied to a small-scale issue-advocacy nonprofit violate the First Amendment. The ruling means that Colorado's disclosure requirements cannot apply against the Coalition for Secular Government's small-scale advocacy against a statewide "personhood" ballot initiative in the 2014 general election.
The Coalition for Secular Government is a small outfit (one person) that devotes itself to printing and distributing material against a proposed "personhood" amendment in Colorado each time it comes up for a vote--the last in 2014. Because the Coalition collects donations to support its operations, the state constitution and implementing laws and regulations require the Coalition to register as an "issue committee" and to disclose information about contributors. These turn out to be quite a hassle, especially for a small group, so the Coalition sued, arguing that they violate the First Amendment.
The Tenth Circuit agreed. The court applied "exacting scrutiny" and concluded that "the minimal informational interest [in disclosure] cannot justify the associated substantial burdens [of compliance]." The court noted that the small-scale nature of the Coalition had an impact on both sides of the balance. As to the informational interest, "the strength of the public's interest in issue-committee disclosure depends, in part, on how much money the issue committee has raised or spent," and the informational interest in the Coalition's spending (about $3,500) was nothing like the informational interest in a group that spent, say, $10 million. As to the burden, the court noted that a small-scale organization like the Coalition faces greater challenges in compliance than a large-scale outfit.
At the same time, the court declined to say whether the state constitutional threshold for issue-committee reporting (a mere $200) constituted a facial violation of the First Amendment. As a result, that threshold is still on the books.
In her extensive opinion in Wandering Dago, Inc. v. Desito, United States District Judge for the Northern District of New York Judge Mae D'Agostino granted summary judgment for the government against the First Amendment and Equal Protection claims of "Wandering Dago" resulting from the denial of a permit to operate a food truck at the Empire State Plaza in Albany (pictured below), a facility owned by the state of New York and operated by the state Office of General Services (OGS) under Commissioner RoAnn Desito.
In the summers of 2013 and 2014, OGS administered "The Empire State Plaza Summer Outdoor Lunch Program," permitting vendors to operate food trucks for limited hours on the plaza, intended to provide "lunch options to the approximately 11,000 State employees who work at Empire State Plaza, as well as for visitors to the Capitol, State Museum, performing arts center" - - - known as The Egg - - - and various monuments and memorials in New York's capital city. As the list of applicants was being processed, the name "Wandering Dago" attracted attention of OGS employees, one who "recognized the term 'dago' as 'a highly offensive term for Italians,'" and after conducting a "computer search" to determine whether this was true, his conclusion was not only "confirmed" but it was "revealed" that the term has been "used to refer to people of Spanish and Portuguese descent, as well as Italians." OGS denied the application "on the grounds that its name contains an offensive ethnic slur and does not fit with OGS' policy of providing family-friendly policy." Wandering Dago's application the next year was similarly rejected.
The First Amendment claims were primary; the Equal Protection Clause claims having been previously dismissed and warranting little more analysis when re-plead. On the First Amendment, Judge D'Agostino identified the problem common to so much free speech litigation: this case does not fit neatly into any particular First Amendment "framework." Thus, Judge D'Agostino engaged in several strands of analysis, most prominently being "forum" analysis, but also government speech, employee (contractor) speech, and commercial speech.
As to forum doctrine, Judge D'Agostino rehearses the well-know different types of forum, ultimately deciding that the forum is a "nonpublic forum." Key to this conclusion, as is so often true, is the definition of the forum. For Judge D'Agostino, the forum is not Empire State Plaza, but the lunch program - - - "which happens to take place within the grounds that comprise the Empire State Plaza." That OGS required permits and controlled the "forum" contributes to this view.
Yet even under a nonpublic forum, the government must be "reasonable" and content/viewpoint neutral. As to the reasonableness, Judge D'Agostino discounted the fact that the policy was not written or even previously articulated. Somewhat confusingly, the judge decided that the owners of Dago did not intend to express anything particular by the name, and therefore there could be no viewpoint/content discrimination and similarly found that there was no problem with unbridled discretion. The judge rejected the applicability of In Re Simon Shiao Tam, in which the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, is unconstitutional because it violates the First Amendment because it did not involve a forum, but an application of strict scrutiny. Judge D'Agostino also distinguished cases in which the proprietor was denied the entire opportunity to sell the goods rather than simply not allowed to participate in a particular program.
The particular program aspect supports the judge's conclusion that "government speech" was at issue, relying on Walker v. Texas Sons of Confederate Veterans in which the Court found that Texas's program of specialty license plates was government speech.
While Judge D'Agostino's opinion is well-structured and comprehensive, the analysis regarding content/viewpoint discrimination, no matter the forum type, will most likely be fertile ground for appeal. On government speech, the case may provide the Second Circuit with an opportunity to clarify the limits of Walker.
Tuesday, March 1, 2016
The D.C. Circuit ruled today in Independence Institute v. FEC that a nonprofit organization's First Amendment challenge to federal electioneering disclosure requirements must go to a three-judge court (and not be dismissed). The ruling keeps alive the nonprofit's challenge to disclosure requirements for its "electioneering communication" under the Bipartisan Campaign Finance Reform Act--even if its constitutional arguments seem, well, weak.
Independence Institute, a 501(c)(3), sought to run a radio ad in favor of a federal statute that would reform federal sentencing, and to encourage citizens to express their support for the law to Colorado's Senator Mark Udall. But Udall was running for re-election at the time, so the radio spot would qualify as an electioneering communication under BCRA. That would trigger disclosure requirements, forcing Independence Institute to disclose its donors to the FEC.
Independence Institute complained, arguing that forced disclosure violated the First Amendment, and sought review by a three-judge court. The district judge denied the request, concluding that the plaintiff's claims were foreclosed by McConnell v. FEC and Citizens United, both of which upheld disclosure requirements against a facial challenge and against one particular as-applied challenge.
A divided panel of the D.C. Circuit reversed. The court said that Independence Institute's arguments passed the low standard the Court recently set in Shapiro v. McManus--denying a three-judge court only when a claim is "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit." In particular, Independence Institute argued that its as-applied claim against the disclosure requirement was different than the as-applied claim that the Court rejected in Citizens United, because Citizens United was a 501(c)(4) organization (not a (c)(3), like Independence), and that Citizens United therefore had a lesser interest in privacy, and that the government had a greater interest in publicly identifying Citizens United's donors. (Independence also argued that the First Amendment bars compelled disclosure unless the electioneering communication is unambiguously campaign-related (not an issue ad, as here). The court didn't address this.)
That seems pretty weak, but not "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit," according to the court.
Judge Wilkins dissented, arguing that the issue's been settled by the Court.
The ruling sends the case to a three-judge court for further proceedings. While this isn't a ruling on the merits--and seems like a poor test case to challenge disclosure requirements--the ruling nevertheless keeps the case alive.
Monday, February 29, 2016
Supreme Court's Oral Argument in Voisine: Does Justice Thomas believe there is a Second Amendment issue?
Today's oral argument in Voisine v. United States centers on the statutory construction of 18 U.S.C. § 921(a)(33)(A) which defines a "“misdemeanor crime of domestic violence” as an offense that is a misdemeanor AND
has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
The relevance of this definitional section is its application to 18 U.S.C. §922(g)(9) which makes is a federal crime for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence," to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
At issue in Voisine is whether the misdemeanor crimes involving family offenses that can be satisfied with a reckless mens rea are included the definition. Virginia Villa, arguing for the petitioners Voisine and Armstrong, stressed statutory definitions but the arguments delved into common law definitions as well. Arguing for the United States, Assistant Solicitor General Ilana Eisenstein stressed Congressional intent, with Justice Ginsburg surfacing the "rule of lenity."
But the argument then took a constitutional turn.
This was prompted by questioning from Justice Thomas (seemingly just as Eisenstadt believed her argument had concluded):
This Court should continue to interpret Section 922(g)(9) in light of that compelling purpose.
If there are no further questions.
JUSTICE THOMAS: Ms. Eisenstein, one question.
Can you give me this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?
Justice Thomas thereafter made a First Amendment analogy, asked whether the Second Amendment was indefinitely suspended, and pointed out that the underlying misdemeanor need not have involved a firearm. In considering possible analogies, Justice Kennedy pointed to SORNA which curtails the interstate travel of registered sex offenders. (Justice Kennedy could have analogized to sex offender cases involving the restrictions on First Amendment rights as well). Justice Breyer asked whether the Congressional statute was a "reasonable regulation of guns under the Second Amendment given Heller and the other cases with which I disagreed?" This provoked laughter but was also a poignant reminder that Heller's author was not on the bench given his unanticipated death. Justice Breyer, however, continued and attempted to make clear that the constitutional question was not clearly before the Court. It may be before the Court as a matter of constitutional avoidance (the statute should be construed to avoid the constitutional question), but, as Justice Breyer stated:
So one answer would be, well, maybe so. We aren't facing the constitutional question. We are simply facing the question of what Congress intended. And if this does raise a constitutional question, so be it. And then there will, in a future case, come up with that question. So we or our point is, we don't have to decide that here.
EISENSTEIN: That's correct, Your Honor.
JUSTICE BREYER: Thank you.
EISENSTEIN: If there are no further questions.
Ilana Eisenstein was then excused by Chief Justice Roberts.
Justice Thomas broke his own well-remarked upon habit of not asking questions during oral argument; it's been a decade since he has. But as some Court observers has noticed, he did write notes which were passed to Justice Scalia. It is difficult to not to make a causal connection in this regard. Moreover, Justice Thomas assumed a more active role in a case seemingly involving Second Amendment rights, an issue which a future Court might reconsider.
However, as the Court did in another domestic violence case last term, Elonis v. United States, look for a decision that engages in statutory construction and avoid the constitutional issue.
Thursday, February 25, 2016
Recall the controversy in 2012 regarding the racist and sexist emails of Judge Richard Cebull of the District of Montana reportedly regarding President Obama? Judge Cebull resigned about a year later, as the matter was being investigated by judicial committees. The Ninth Circuit Committee on Judicial Conduct and Disability entered its Decision in January 2014 incorporated the findings of judicial misconduct of other committees, but found that remedial action was "inoperative" given Cebull's retirement.
In Adams v. Committee on Judicial Conduct and Disability, two Montana journalists sought more information than the Committee included in that decision, including additional emails, and brought suit against the Committee and other defendants. In an 25 page Order today, Judge Yvonne Gonzalez Rogers dismissed the complaint without leave to amend. Judge Rogers's decision included several grounds.
First, Judge Rogers concluded that the Committee on Judicial Conduct and Disability was protected by federal sovereign immunity and that the Committee had not waived that immunity.
Second, Judge Rogers considered the Defendants' claim that the plaintiff journalists lacked standing. Citing First Amendment cases such as Branzburg v. Hayes (1972), Judge Rogers found that the plaintiffs did suffer "injury in fact" as journalists. However, Judge Rogers concluded that the plaintiff journalists failed to satisfy another element of standing, the causation inquiry, stating that "Plaintiffs have not alleged that their injury is fairly traceable to any conduct of the Committee, at least not with clarity." She thus dismissed the complaint for lack of standing.
Third, Judge Rogers entertained the Committee's arguments that it was protected by judicial immunity. Judge Rogers found that the Committee had both judicial immunity and quasi-judicial immunity, and granted the motion to dismiss on both these grounds.
Fourth, the Committee sought judicial deliberative privilege regarding Judge Cebull's emails. However, Judge Rogers found that the particular emails sought were not "in pertinent part, communications relating to official judicial business."
Fifth and finally, was the First Amendment claim. The Defendants claimed that the emails were "investigative materials" shielded from First Amendment disclosure by the confidentiality provision of the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C section 360. Judge Rogers framed the issue thusly:
(i) assuming Defendants are correct that the emails are “investigative materials” covered by 360(a), is that confidentiality restriction consistent with the First Amendment?; and alternatively,
(ii) assuming the emails are not “investigative materials” covered by 360(a), does the First Amendment provide any right or claim to compel their disclosure by Defendants?
The Court turns to the Press-Enterprise II framework to determine if, under either formulation, Plaintiffs’ access claim is one that meets the historical experience and logic criteria, such that a qualified First Amendment right of access exists.
Using the experience and policy framework of Press Enterprise II (1986) Judge Rogers concluded that under either formulation of the issue, the press did not sustain a claim for access to the emails. Instead, the "more general rule set forth by the Supreme Court in Houchins [v. KQED (1978) ] — that the First Amendment right of the public or the press does not grant unlimited access to all government information or information within the government’s control—prevails.
Thus, it seems we will never be have an opportunity to read the other (presumably offensive) emails that Judge Cebull sent through his official judicial accounts when he was a sitting judge. Given the multiple grounds on which Judge Rogers relied, and the well-reasoned First Amendment discussion, any appeal would have much to overcome in order to be successful.
In its Motion to Vacate filed today, Apple, Inc. argued that the Magistrate's Order Compelling Apple, Inc. to Assist Agents in Search of an Apple IPhone was not supported by the All Writs Act and is unconstitutional.
The constitutional arguments are basically three:
First, embedded in the argument that the All Writs Act does not grant judicial authority to compel Apple to assist the government is the contention that such would violate the separation of powers. Crucial to this premise is the Communications Assistance for Law Enforcement Act (CALEA), which Apple contends does not apply to Apple and which has not been amended to do so or amended to provide that companies must provide decryption keys. Absent such an amendment, which was considered as CALEA II but not pursued, the courts would be encroaching on the legislative role.
For the courts to use the All Writs Act to expand sub rosa the obligations imposed by CALEA as proposed by the government here would not just exceed the scope of the statute, but it would also violate the separation-of-powers doctrine. Just as the “Congress may not exercise the judicial power to revise final judgments,” Clinton v. Jones (1997), courts may not exercise the legislative power by repurposing statutes to meet the evolving needs of society, see Clark v. Martinez (2005)(court should “avoid inventing a statute rather than interpreting one”) see also Alzheimer’s Inst. of Am. Inc. v. Elan Corp. (N.D. Cal. 2013) (Congress alone has authority “to update” a “technologically antiquated” statute “to address the new and rapidly evolving era of computer and cloud-stored, processed and produced data”). Nor does Congress lose “its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution” in times of crisis (whether real or imagined). Youngstown Sheet & Tube Co. v. Sawyer (1952).
[citations abbreviated]. Apple adds that "whether companies like Apple should be compelled to create a back door to their own operating systems to assist law enforcement is a political question, not a legal one," citing Baker v. Carr (1962).
Second, Apple makes a cursory First Amendment argument that commanding Apple to "write software that will neutralize the safety features that Apple has built into the iPhone" is compelled speech based on content and subject to exacting scrutiny. Apple also contends that this compelled speech would be viewpoint discrimination:
When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit. The government disagrees with this position and asks this Court to compel Apple to write new software that advances its contrary views.
Third, and even more cursorily, Apple makes a substantive due process argument under the Fifth Amendment. Here is the argument in full:
In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due process are not . . . subject to mechanical application in unfamiliar territory.”).
Interestingly, there is no Fourth Amendment argument.
The main thrust of Apple's argument is the statutory one under the All Writs Act and the application of the United States v. New York Telephone Co. (1977) factors that the government (and Magistrate) had relied upon. Apple disputes the burden placed on Apple that the Order would place. Somewhat relevant to this, Apple contends that "Had the FBI consulted Apple first" - - - before changing the iCloud password associated with one of the relevant accounts - - - "this litigation may not have been necessary."
February 25, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), First Amendment, News | Permalink | Comments (0)
Wednesday, February 24, 2016
In a relatively brief opinion in Susan B. Anthony List v. Driehaus, a panel of the Sixth Circuit found that Ohio's false campaign statute, Ohio Rev. Code § 3517.21(B)(9), violates the First Amendment.
Recall that the Sixth Circuit had previously decided that the constitutional challenge was not ripe for review, but that the United States Supreme Court unanimously reversed in June 2014. On remand, District Judge Timothy Black concluded that the statute violated the First Amendment.
The Sixth Circuit panel reasoned that any Sixth Circuit precedent supporting the view that falsehoods were categorically excluded from the First Amendment had been abrogated by United States v. Alvarez, (the "stolen valor" case). Instead, the panel found that the Ohio law both targeted core speech and was a content-based regulation, and thus strict scrutiny was applicable. The Sixth Circuit reasoned that
Ohio’s interests in preserving the integrity of its elections, protecting “voters from confusion and undue influence,” and “ensuring that an individual’s right to vote is not undermined by fraud in the election process” are compelling.
However, the means chosen were not narrowly tailored:
in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.
Additionally, the Sixth Circuit noted:
Ohio’s political false-statements laws have similar features to another Ohio election law that the Supreme Court found unconstitutional. In McIntyre [v. Ohio Elections Committee (1995)] , the Supreme Court struck down Ohio’s election law prohibiting anonymous leafleting because its prohibitions included non-material statements that were “not even arguably false or misleading,” made by candidates, campaign supporters, and “individuals acting independently and using only their own modest resources,” whether made “on the eve of an election, when the opportunity for reply is limited,” or months in advance. Ohio’s political false-statements laws have all of the same flaws. Such glaring oversteps are not narrowly tailored to preserve fair elections.
The use of McIntyre is an interesting one because the "right to be anonymous" recognized in McIntyre seemed to rest in part on the government interest in ensuring truthfulness and cited the Ohio campaign falsehoods law in support.
Given that the court did recognize as compelling the government's interests in addressing lies in campaigns, is there any possibility that a government could craft a narrowly tailored regulation? It seems doubtful.
On this anniversary of Marbury v. Madison (decided February 24, 1803), and given the current controversies regarding the appointment of Justice Scalia's successor after his unexpected death, Justice Scalia's views on the political nature of judicial appointments, including those to the United States Supreme Court, is worth a read.
Dissenting in Rutan v. Republican Party of Illinois (1990), Scalia wrote:
Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 1. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.
The Court's majority opinion - - - authored by Justice William Brennan, a Democrat appointed to the United States Supreme Court by the Republican President Dwight Eisenhower - - - held that the Illinois governor's practice of implementing certain austerity measures in state government in accordance with political affiliation violated the First Amendment rights of government employees. Brennan's opinion for the Court notably began:
To the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns (1976), and Branti v. Finkel (1980), decided that the First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Today we are asked to decide the constitutionality of several related political patronage practices — whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not.
What the Constitution does - - - or does not - - - provide regarding the "spoils" of judicial appointment is being hotly contested. And in this, Marbury v. Madison may be relevant as more than illustration should the controversy become subject to judicial review.