Thursday, April 19, 2018
In its opinion in Planned Parenthood of Greater Ohio v. Himes, a unanimous Sixth Circuit panel, affirming the district judge, found Ohio 's Revised Code § 3701.034 unconstitutional under the unconstitutional conditions doctrine. The Ohio statute prohibited all funds it receives through six non-abortion-related federal health programs, such as the Violence Against Women Act, from being used to fund any entity that performs or promotes nontherapeutic abortions, or becomes or continues to be an affiliate of any entity that performs or promotes nontherapeutic abortions. The statute was aimed at Planned Parenthood and similar organizations.
The state relied upon cases such as Maher v. Roe and Rust v. Sullivan, but the court's opinion, authored by Judge Helene White, stated:
Plaintiffs do not claim an entitlement to government funds. They acknowledge the government’s right to define the parameters of its own programs, and have complied with all program requirements. What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs.
Instead, Judge White wrote, the correct precedent was Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI) (2013). Recall that in the "prostitution-pledge" case, the United States Supreme Court held unconstitutional under the First Amendment a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. For the Sixth Circuit, AOSI "reiterated that the government may not require the surrender of constitutional rights as a condition of participating in an unrelated government program." In short,
the government cannot directly prohibit Plaintiffs from providing and advocating for abortion on their own time and dime, [ and thus ] it may not do so by excluding them from government programs for which they otherwise qualify and which have nothing to do with the government’s choice to disfavor abortion.
The Sixth Circuit found that the Ohio statute violated unconstitutional conditions based on constitutional infringements of both the Due Process Clause and the First Amendment. On the due process issue, the court found that the due process right to an abortion was at issue. The court rejected the "importation" of the undue burden standard into this analysis, but also reasoned that even under the undue burden analysis, especially in the United States Supreme Court's most recent abortion ruling in Whole Woman's Health v. Hellerstedt (2016), the statute violated due process.
On the First Amendment claim, relating to the Ohio statute's denial of funds to any organization that promotes abortions, again the Sixth Circuit quoted Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI): the government does not "have the authority to attach ‘conditions that seek to leverage funding to regulate speech outside the contours of the program itself.’ "
While there is some potential for a circuit split given the Seventh Circuit's opinion in Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013), the Sixth Circuit extensively analyzes the Seventh Circuit's opinion and concludes that because it was decided before Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI), it is no longer persuasive.
Tuesday, April 17, 2018
Whose privacy counts? Whose privacy should count?
While these questions could be asked across many doctrines, one intersection occurs in the origins of privacy, including the tort remedies for its invasion. In his article Privacy's Double Standards, available on ssrn and forthcoming in Washington Law Review, Professor Scott Skinner-Thompson argues for the necessity of equal protection standards in privacy protection torts. Centered on the tort of public disclosure of private facts, Skinner-Thompson rightly observes that it has been applied unevenly, with privileged and celebrity plaintiffs prevailing (think: Hulk Hogan v. Gawker) when more marginalized plaintiffs (such as victims of revenge porn) have not, noting that this is perhaps not surprising given the origins of the tort in "Brahman society." Skinner-Thompson discusses these cases and numerous others to support this observation (and provides a nice appendix of his research methodology).
Yet rather than simply detail the disparities evinced in the cases, Skinner-Thomson argues that just as the First Amendment has shaped the doctrines of torts, so too should constitutional equality principles be applied to the inequalities in tort remedies for invasions of privacy. He argues that "to better comply with constitutional equality principles, the substance of privacy tort law must be relaxed so as to ensure that individuals in marginalized communities are able to bring claims on the same terms as privileged individuals."
His specific recommendations for reshaping the tort doctrine of public disclosure of private facts:
- All plaintiffs, and not just well-known ones, should be able to prevail in public disclosure tort claims" even if they have shared the information at issue (for example, their HIV status, sexual orientation, or intimate photographs) within certain confines."
- All plaintiffs should be able to prevail in public disclosure tort claims even if the defendant has not shared the information with the world at large (for less well-known plaintiffs, the interest of the world can be limited, but, for example, disclosure of one's sexual orientation to one's small community church can be equally devastating).
As Skinner-Thompson makes clear, he is not arguing that a privacy tort plaintiff " will be able to successfully bring an equal protection challenge to the way the public disclosure tort is operating," but it is to argue that this tort could be - - - and should be - - - inflected with equal protection concerns.
[image: Edgar Degas, Mrs Jeantaud in the Mirror, circa 1875 via]
Saturday, April 14, 2018
In her opinion and Order in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington has reaffirmed her previous preliminary injunction (December 2017) on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims in their challenge to the President's ban on transgender troops in the military, and further decided that the military ban is subject to strict scrutiny. (Recall that previous to Judge Pechman's preliminary injunction, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions and United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures).
The government's motion for summary judgment and to dissolve the preliminary injunction relied in large part on the President's new policy promulgated in March 2018. As Judge Pechman phrased it, the 2018 Presidential Memorandum
purports to "revoke" the 2017 Memorandum and “any other directive [he] may have made with respect to military service by transgender individuals,” and directs the Secretaries of Defense and Homeland Security to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”
Rejecting the government defendants' argument that the controversy was now moot, Judge Pechman concluded that the 2018 Memorandum and Implementation Plan "do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place." The judge acknowledged that there were a few differences, but was not persuaded by the government defendants' argument that the 2018 policy did not now mandate a “categorical” prohibition on service by openly transgender people.
Similarly, Judge Pechman found that the individual plaintiffs, the organizational plaintiffs, and the plaintiff State of Washington continued to have standing.
Most crucial in Judge Pechman's order is her decision that transgender people constitute a suspect class and thus the ban will be subject to strict scrutiny. (Recall that in the previous preliminary injunction, Judge Pechman ruled that transgender people were at a minimum a quasi-suspect class). In this opinion, she considers four factors:
- whether the class has been “[a]s a historical matter . . . subjected to discrimination,”
- whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,
- whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,"
- whether the class is “a minority or politically powerless.”
After a succinct analysis, she concludes that suspect class status is warranted and because the "Ban specifically targets one of the most vulnerable groups in our society," it "must satisfy strict scrutiny if it is to survive."
However, Judge Pechman did not decide on the level of deference the government defendants should be accorded. Instead, she concluded that
On the present record, the Court cannot determine whether the DoD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which Courts typically should defer.
However, she did agree with the government defendants that President Trump was not subject to injunctive relief, but did remain as a defendant for the purpose of declaratory relief.
Thus, Judge Pechman directed the parties to "proceed with discovery and prepare for trial on the issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates equal protection, substantive due process, and the First Amendment."
[image, Revolutionary War era soldier, NYPL, via]
April 14, 2018 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Executive Authority, Fifth Amendment, First Amendment, Gender, Mootness, Opinion Analysis, Sexuality, Standing | Permalink | Comments (0)
Wednesday, March 28, 2018
In oral arguments in Benisek v. Lamone, the United States Supreme Court again confronted the the constitutionality of gerrymandering on the basis of political party. Recall that the Court heard arguments earlier in this Term in Gill v. Whitford involving the state of Wisconsin and centering on the Equal Protection Clause challenge. In Benisek, involving Maryland, recall that a divided three judge court denied the motion for preliminary injunction, but with Fourth Circuit Judge Paul Niemeyer arguing that the redistricting of Maryland's Sixth District diluted the votes of Republicans in violation of the First Amendment.
The Benisek argument before the Supreme Court did center the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause. Arguing for Maryland, Steve Sullivan sought to distinguish the two doctrines, with Justice Kagan responding:
JUSTICE KAGAN: But we would be looking at the same things. We would be looking at the same kind of direct evidence, the same kind of statements. We would be looking at the same circumstantial evidence that has to do with where the lines were drawn and how they were drawn. So it's -- it's all the same kind of evidence, isn't it?
Sullivan sought to distinguish the two doctrines and stated that while there may be similar types of evidence, the Court had not applied "the First Amendment retaliation rubric to that analysis," as the challengers suggested. However, Chief Justice Roberts offered another comparison:
CHIEF JUSTICE ROBERTS: Well, one difference between -- one difference between the race and partisanship is that we've always recognized that a certain degree of partisanship is acceptable. We've never recognized that a certain degree of racial discrimination is acceptable.
The earliest moments of the oral argument offered a possible procedural escape hatch. The three judge court had denied the preliminary injunction and the possibility that any remedy could occur before the 2018 election seemed unlikely. Moreover, the Justices questioned Michael Kimberly, attorney for the plaintiffs-challengers, regarding the lateness of the challenge, with Chief Justice Roberts asking about the elections that have been held in 2012, 2014, and 2016 before the challenge - - - relevant to the preliminary injunction factor of irreparable harm.
Justice Breyer offered a strategy for determining whether there are manageable standards and if so, what the standard should be. (Recall that Justice Breyer outlined a several-step possible standard in the oral argument in Gill v. Whitford). Justice Breyer noted that there are three cases - - - Wisconsin (Gill v. Whitford); Maryland (Benisek); and "the one we are holding, I think, is North Carolina" - - - with different variations. He began by asking the attorney for the challengers what he thought of reargument for the three cases:
JUSTICE BREYER: * * * * What would you think of taking the three cases and setting them for reargument on the question of standard and there we'd have all three variations in front of us and we would enable people who have an interest in this subject generally to file briefs, and we'd see them all together and they could attack each other's standards or they could support each other's standards or they could attack any standard? But there we'd have right in front of us the possibilities as -- as -- as thought through by lawyers and others who have an interest in this subject.
I raise it because I want to think if there's some harm in doing that that I haven't thought of. Is there some reason - would it be harmful to somebody? Because I do see an advantage. You could have a blackboard and have everyone's theory on it, and then you'd have the pros and cons and then you'd be able to look at them all and then you'd be able see perhaps different ones for different variations and, you know, that's -- maybe there are different parts of gerrymandering that rises in different circumstances, dah-dah-dah. You see the point.
Later, in a colloquy with the attorney for Maryland, Justice Breyer again surfaced his proposal:
That's why I was thinking you've got to get all these standards lined up together, you know, and you have to have people criticizing each one back and forth and see if any of them really will work or some work in some cases and some work in other cases and it depends on the type you have.I -- I mean, that isn't squarely addressed by the lawyers because they're focused on their one case, et cetera.
Will there be a reargument? It's difficult to tell. But if there is, one might expect more than one brief that outlines the possible standards, with their advantages, disadvantages, and possible results in different cases, suitable for a "blackboard."
[image: Winslow Homer, Blackboard, 1877, via]
March 28, 2018 in Association, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Oral Argument Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Monday, March 26, 2018
In an amended complaint Stephanie Clifford, better known as Stormy Daniels, has added a count of defamation against President Trump's attorney, Michael Cohen, for defamation.
Recall that Ms. Daniels filed a complaint in state court against Trump and a LLC, Essential Consultants, which mentioned Michael Cohen, seeking a declaratory judgment regarding "hush money" and an agreement not to divulge certain facts. That lawsuit has been removed to federal court. But the day after Ms. Daniels' widely watched interview on the news show "60 Minutes" aired, Daniels' attorney has filed an amended complaint adding Cohen as a defendant and alleging defamation:
On or about February 13, 2018, Mr. Cohen issued a public statement. The entirety of the statement is attached hereto as Exhibit 3. In it, he states in part: “Just because something isn’t true doesn’t mean that it can’t cause you harm or damage. I will always protect Mr. Trump.” (emphasis added). Mr. Cohen’s statement was made in writing and released by Mr. Cohen to the media with the intent that it be widely disseminated and repeated throughout California and across the country (and the world) on television, on the radio, in newspapers, and on the Internet.
It was reasonably understood by those who read or heard the statement that Mr. Cohen’s defamatory statement was about Ms. Clifford.
Both on its face, and because of the facts and circumstances known to persons who read or heard the statement, it was reasonably understood Mr. Cohen meant to convey that Ms. Clifford is a liar, someone who should not be trusted, and that her claims about her relationship with Mr. Trump is “something [that] isn’t true.” Mr. Cohen’s statement exposed Mr. Clifford to hatred, contempt, ridicule, and shame, and discouraged others from associating or dealing with her.
Mr. Cohen’s defamatory statement was false.
Mr. Cohen made the statement knowing it was false or had serious doubts about the truth of the statements.
As a result, Plaintiff Ms. Clifford has suffered damages in an amount to be proven at trial according to proof, including but not limited to, harm to her reputation, emotional harm, exposure to contempt, ridicule, and shame, and physical threats of violence to her person and life.
Unlike any claims against President Trump, there is no question of executive immunity, but the First Amendment contours of defamation will undoubtedly be relevant. Given that Stormy Daniels is clearly a public figure, much more so than Summer Zervos who is suing President Trump for defamation, Daniels will need to satisfy the actual malice standard. (Recall that a state judge has held that Zervos's lawsuit against Trump is not barred by executive immunity.)
[Image: Stormy Daniels via]
The Sixth Circuit ruled last week that Ohio's single-subject rule for ballot initiatives doesn't violate the First Amendment. The ruling upholds a state Ballot Board order requiring the plaintiffs to split their initiative--which includes one question on term limits for state supreme court justices and another to apply all laws "that apply to the people" of the state "equally to the members and employees of the General Assembly"--into two.
The case, Committee to Impose Term Limits v. Ohio Ballot Board, arose when the state Ballot Board rejected the plaintiffs' request to include a ballot question with two parts--one to impose term limits on Ohio supreme court justices, and the other to apply laws equally to members of the General Assembly. The Board ruled that state single-subject rule for ballot initiatives required the plaintiffs to split the questions. The plaintiffs sued, arguing that the Board's ruling violated the First Amendment.
The Sixth Circuit disagreed. The court rejected the plaintiffs' argument that the single-subject rule was a content-based restriction on speech and instead applied the Anderson-Burdick balancing test for "minimally burdensome and nondiscriminatory regulations." Under the balancing test, the court said that the single-subject rule amounted to only a minimal burden on the plaintiffs, but that it was justified by multiple state interests (avoiding confusion at the ballot box, promoting informed decision-making, preventing logrolling).
The ruling aligns with every other circuit that addressed the question post-Buckley v. Valeo.
Tuesday, March 20, 2018
The United States Supreme Court heard oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra in which the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act).
The California law requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California. The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”
The California law is not unique, but as we previously discussed when certiorari was granted, other courts have consider similar provisions with mixed conclusions.
The arguments raised several questions but one that recurred was the relevance of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) in which the Court upheld the informed consent provisions of a state law mandating "providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion." Justice Breyer's invocation of the maxim "sauce for the goose, sauce for the gander" pointed to the question of why California could not also mandate that CPC's provide notice. Arguing for the challengers, Michael Farris argued that the distinction was that the CPC's were not medical, although there was much discussion of this including the definition of medical procedures such as sonograms and pregnancy tests.
Appearing for neither party, Deputy Solicitor General Jeffrey Wall nevertheless strongly advocated against the California law. Near the end of Wall's argument, Justice Alito raised the subject of professional speech proposed by the United States brief, stating that it "troubles me" and seemed inconsistent with United States v. Stevens (2010) regarding not recognizing new categories of unprotected speech. (Recall that Alito was the lone dissent in the Court's conclusion that criminalizing "crush porn" violated the First Amendment). Alito also referenced the Fourth Circuit's "fortune teller" case, in which the court upheld special regulations aimed at fortune tellers. For Wall, laws that mandate disclosures by historically regulated professions such as doctors and lawyers should be subject only to minimal scrutiny.
The main issue raised regarding California's position was whether or not the statute was targeted at pro-life clinics, especially given the "gerrymandered" nature of the statute's exceptions. The Justices also directed questions to Deputy Solicitor of California Joshua Klein regarding the advertising requirements and disclaimers: must a facility state it is not licensed even if it is not advertising services, but simply has a billboard "Pro Life"?
Will it be sauce for the goose as well as for the gander?
The intersection of First Amendment principles and abortion jurisprudence makes the outcome even more difficult to predict than notoriously difficult First Amendment cases.
In her opinion in Zervos v. Trump, New York County Supreme Court Justice Jennifer Schecter ruled that the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.
Recall that Summer Zervos filed the law suit a few days before Trump was inaugurated. Recall also that one of the major issues was whether or not a sitting president was amenable to suit in state court: In other words, did the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to suit in federal court extend to state court?
Justice Schecter's first paragraph answers the question without hesitation, beginning with a citation to Clinton v. Jones and stating that the case left open the question of whether "concerns of federalism and comity compel a different conclusion for suits brought in state court," but adding "they do not." Her analysis is relatively succinct, beginning with a simple statement: "No one is above the law" and concluding that "In the end, there is absolutely no authority for dismissing or staying a civil action related purely to unofficial conduct because defendant is the President of the United States."
Justice Schecter also denied the motion to dismiss for failure to state a claim and thus discussed the defamation claim which obliquely raises First Amendment issues. (The first 8 pages of the 19 page opinion detail the allegations of the complaint.) The motion to dismiss had essentially argued that Mr. Trump's statements were mere hyperbole. Justice Schecter disagreed:
Defendant--the only person other than plaintiff who knows what happened between the two of them--repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told "phony stories" and issued statements that were "totally false" and "fiction," he insisted that the events "never happened" and that the allegations were "100% false [and] made up.”
A reader or listener, cognizant that defendant knows exactly what transpired, could reasonably believe what defendant's statements convey: that plaintiff is contemptible because she "fabricated" events for personal gain. . . . . Defendant used "specific, easily understood language to communicate" that plaintiff lied to further her interests . . . His statements can be proven true or false, as they pertain to whether plaintiff made up allegations to pursue her own agenda. Most importantly, in their context, defendant's repeated statements--which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by defendant- -cannot be characterized simply as opinion, heated rhetoric, or hyperbole. That defendant's statements about plaintiff's veracity were made while he was campaigning to become President of the United States, does not make them any less actionable. . . .
Thus, it seems that the lawsuit against the President, now joined by a declaratory judgment suit by Stormy Daniels which we discussed here and since removed to federal, will proceed apace. Assuming, of course, that the President's lawyers do not attempt an interlocutory appeal.
image: Hans Makart, Allegory of the Law and Truth of Representation, circa 1881 via
Friday, March 16, 2018
The Fourth Circuit ruled this week in Kenny v. Wilson that a group of primary and secondary school students had standing to lodge a facial First Amendment challenge against South Carolina's "Disturbing Schools Law" and "Disorderly Conduct Law." The ruling says nothing about the merits, however; that's for remand. (Although it's kind of hard to see how these laws aren't unconstitutionally vague.)
The laws are basically what their titles imply. The Disturbing Schools Law makes it unlawful
(1) for any person willfully or unnecessarily (a) to intefere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) or loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or
(2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.
The Disorderly Conduct Law says:
Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church . . . shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.
Plaintiffs-students lodged facial vagueness challenges to the laws, after they were disciplined for violations. But they sought declaratory and injunctive relief, not damages, so standing became an issue.
The court said that they had standing, for two independent reasons. First, the court said that they had standing under Babbitt v. Farm Workers, because "[t]hey attend school without knowing which of their actions could lead to a criminal conviction," and "there is a credible threat of future enforcement" that's not "imaginary or wholly speculative." Next, the court said they had standing because the plaintiffs alleged an "ongoing injury in fact" based on a "sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression."
Tuesday, March 13, 2018
A divided panel of the Eleventh Circuit ruled today that officers enjoyed qualified immunity against First and Fourth Amendment claims after arresting an Atlanta Ferguson protestor for wearing a "V for Vendetta" mask. The ruling ends the protestor's civil-rights action against the officers.
The case, Gates v. Khokhar, arose when officers arrested Austin Gates for wearing the mask during the Atlanta protest, and failing to take it off when so ordered by police. Officers charged Gates with a violation of Georgia's Anti-Mask statute, which, with certain exceptions not relevant here, makes it a misdemeanor for a person to "wear a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer" while he is "upon any public way or public property." Gates sued, arguing that his arrest violated the First and Fourth Amendments.
The Eleventh Circuit ruled that the officers enjoyed qualified immunity and dismissed Gates's federal constitutional claims. The court said that the Georgia Supreme Court had narrowed the Anti-Mask statute to cases where (1) the mask is worn with the intent to conceal the identity of the wearer and (2) the wearer of the mask "knows or reasonably should know that [his] conduct provokes a reasonable apprehension of intimidation, threats, or violence."
Under this standard, the court said that the officers didn't violate any clearly established First or Fourth Amendment right. In particular, the majority held that under the circumstances the officers could have reasonably believed that Gates wore the mask to cover his entire face and with an intent to intimidate, and that they therefore had "arguable" probable cause for his arrest. (The court reminded us that "arguable" probable cause--the standard for qualified immunity from a Fourth Amendment claim--is a pretty low standard and doesn't require an officer to have specific evidence of intent. In any event, as to intent, the court said that the circumstances of the protest, the fact that officers previously ordered mask-wearers to remove masks on threat of arrest (even if Gates didn't hear this), and the symbolic threat behind the Guy Fawkes mask all suggested that an officer could infer intent to intimidate.)
Judge Williams dissented. She argued that the majority "fail[ed] to adequately address the First-Amendment implications of the conduct and statute at issue here." In particular, she wrote that "the specific right at issue here--whether individuals can be subject to arrest for wearing a mask during a peaceful protest--was "clearly established" at the time of Gates' arrest."
The panel unanimously held that the officers enjoyed absolute immunity against Gates's state-law claims.
The Eighth Circuit today rejected a common-law and First Amendment claim to information relating to the professional qualifications of two members of a Missouri execution team. The ruling means that this information will stay under seal.
The case arose during the course of an omnibus Eighth Amendment challenge to Missouri's execution protocol. Larry Flynt successfully intervened in that litigation and sought information from depositions and other documents relating to the professional qualifications of two medical members of the execution team, which the court refers to only as "M2" and "M3." Flynt argued that common law and the First Amendment compelled disclosure. The district court disagreed, and the Eighth Circuit affirmed.
As to Flynt's common-law claim, the court ruled that the district court didn't abuse its discretion in concluding that "[t]he personal and professional safety of one or more members of the execution team, as well as the interest of the State in carrying out its executions, were sufficiently in jeopardy to overcome the common-law right of public access to the records."
As to the First Amendment claim, the court, drawing on circuit law, said that there was no "historical tradition of accessibility" of this kind of information, and that release of the information wouldn't play any "role for public access in the functioning of the judicial process," because "it would effectively eviscerate the State's ability to carry out executions by jeopardizing its ability to have medical professionals on the execution team."
Finally, the court ruled that the district court didn't err in denying Flynt's motion to review the state's in camera briefing on the issue of release. The court said that Flynt didn't object in a timely manner, and that in any event in camera review was the best way to accomplish the district court's mandate to consider whether redaction was possibly a less restrictive means (than sealing in the entirety) of protecting the information." The court noted,
At the bottom line, this dispute is about the identity of medical members of the execution team. Flynt's stated rationale for wanting this information--to check the professional credentials of these members--is in direct and perilous conflict with the State's superior rationale of protecting the identity of these parties. The district court thus did not abuse its discretion in electing to review the supplemental briefing in camera, and denying Flynt's subsequent request to review it.
Monday, March 12, 2018
The Tenth Circuit last week ruled that officers enjoyed qualified immunity against an open-carrying-plaintiff's claims that they detained him in violation of the Second Amendment and prevented him from recording their actions in violation of the First Amendment.
While the ruling goes only to qualified immunity, it underscores that there's no clearly established right to open carry under the Second Amendment, and no clearly established right of a detainee to record police officers in public. More generally, the ruling also illustrates just how stingy qualified immunity can be in protecting officers from constitutional tort claims.
The case, Sandberg v. Englewood, Colorado, arose when officers responded to a 911 call in which a caller reported "some form of workplace violence" after observing Westin Sandberg openly carrying his 9-millimeter Ruger on the streets of Englewood. The officers detained Sandberg and determined that there was no basis for the "workplace violence" allegation. But they continued to detain him--for four hours total--while they determined whether they could charge him with anything else. Finally, the officers wrote a summons for disorderly conduct. (Colorado's disorderly conduct statute says: "A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly . . . displays a deadly weapon . . . .") They also took his gun, holster, bullets, and magazine. Four months later, the prosecutor dropped the charge, and, a month after that, returned Sandberg's property to him.
Sandberg sued, alleging violations of his First, Second, and Fourth Amendment rights, and gun-rights under the Colorado Constitution.
The Tenth Circuit rejected the federal constitutional claims, holding that the officers and prosecutor enjoyed qualified immunity. As to Sandberg's Second Amendment claim, the court said that there was no clearly established right to carry a gun in public. The court said that Justice Thomas's dissent to a denial of cert. in Peruta v. California and the Seventh Circuit ruling in Moore v. Madigan weren't enough, given that Justice Thomas's dissent carries no legal weight, and that the Seventh Circuit is the only circuit to hold that the Second Amendment encompasses a right to carry in public.
As to Sandberg's First Amendment claim, the court said that while some other circuits have held that the First Amendment protects the act of recording police officers' public conduct, they either post-dated the events in this case or involved a third-party recording the police (and not, as here, the detainee himself filming the police). Because there's no case-law on all fours, the court ruled that the law wasn't clearly established, and that the officers therefore enjoyed qualified immunity.
Lacking federal question jurisdiction, the court sent Sandberg's Colorado Constitutional claim back to the district court with instructions to dismiss.
While the case isn't (directly) a ruling on the merits, it does illustrate just how hard it can be to succeed on a constitutional tort claim against officers' qualified immunity. The qualified immunity doctrine allows courts to look first (and only) at whether a right is "clearly established" (without ever actually engaging the right itself). Moreover, in judging the "clearly established" question, the doctrine practically requires circuit precedent, or precedent from a majority of sister circuits, on all fours with the rights claim in the particular case. Because this is so hard to show--especially in cases involving relatively new rights claims, as here, which, because of their newness, simply haven't been litigated a lot--there's a weighty thumb on the scale in favor of qualified immunity, and against civil rights plaintiffs.
Wednesday, February 28, 2018
The Court heard oral argument in Minnesota Voters Alliance v. Mansky, a First Amendment challenge to Minn. Stat. §211B.11, entitled "Soliciting near polling places," and includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day." The argument tracked many of the issues in our preview here.
Important to the argument was the relevance of Burson v. Freeman (1992), in which the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place. Early in the argument, Justice Sotomayor asked J. David Breemer, counsel for the petitioners, whether he was asking the Court to overrule Burson. Breemer distinguished Burson as "active campaigning" speech while the Minnesota statute governing attire and buttons was directed at "passive speech," but this did not seem satisfactory to the Justices.
The slippery slope inherent in overbreadth challenges was traversed multiple times. How could the lines be drawn? Several Justices at different points pressed counsel for Minnesota Voters Alliance on whether the statute would be constitutional if narrowed to "electoral speech" (vote for candidate X), but while counsel eventually agreed this might be constitutional, Justice Sotomayor then asked about ballot measure issues. During Daniel Rogan's argument on behalf of the State of Minnesota, Justice Alito pressed with any number of examples after stating that political connotations are in the "eye of the beholder": rainbow flags, Parkland Strong, the text of the Second Amendment, the text of the First Amendment, and "I miss Bill." And what about the very notion of entitlement to vote itself? In Breemer's rebuttal, Justice Sotomayor returned to some of the facts that had prompted the First Amendment challenge:
Let's not forget who these people were and what they were wearing, "Please ID me," which for some people was a highly charged political message, which was found, on remand, was intended to intimidate people to leave the polling booth . . . .
For Alito, the focus was not on voters who may be intimidated but on the humiliation of a voter who might be forced to cover up a political shirt with "a bathrobe."
As for the government interests supporting the statute, the question of dignity and decorum were paramount, inviting the comparison to the courtroom, which Justice Kagan raised. Although Breemer stated there was no constitutional right to vote free from being bothered, C.J. Roberts asked why a state could not make a determination that there should be such a policy.
The on-the-ground enforcement of the statute, with a potential for viewpoint discrimination, was a focus of Justice Alito's questions, but other Justices were also interested in what actually happened at the polling place. For Alito,but Rogan stressed the process and repeatedly noted that for one hundred years the statute has not been a problem and that Minnesotans know not to wear political slogans to go vote. If there are issues, Rogan stated, they are rather expeditiously solved in a bipartisan process at the polling place.
While one can assume their positions from their questions in oral argument from a few Justices - - - Alito seemed rather obvious - - - it is always risky to venture a guess about the outcome, especially when there is a conflict of constitutional interests. Indeed, this case may be most like Williams-Yulee v. The Florida Bar in which a closely-divided Court in 2015 upheld an ethics rule prohibiting judicial candidates from solicitation; Chief Justice Roberts wrote the majority opinion.
Monday, February 26, 2018
There were no surprises today at oral arguments in Janus v. AFSCME, the case testing whether a state law that permits a public-sector collective-bargaining agreement to require non-union-members to pay a "fair share" fee violates the First Amendment. The justices seemed to divide along predictable (and conventional political) lines, given their votes in other recent cases. The only one we haven't heard from on this issue--and didn't hear anything today--is Justice Gorsuch. If previous positions hold, as expected, the case will turn on his vote.
The case asks whether a state can require non-union members to pay the union for its collective-bargaining work (but not its outside political work) in a public-sector agency shop. The Court held in Abood v. Detroit Board of Education (1977) that it could. In particular, the Court said that the state's interests in avoiding free-riders in the agency shop and promoting and protecting labor peace justified any intrusion into First Amendment rights.
Janus tests whether the Court should overrule Abood and strike mandatory public-sector fair-share fees.
Recall that the issue has come to the Court, directly or indirectly, three times in recent years. In the first two cases, Knox v. SEIU and Harris v. Quinn, the Court sent strong signals that a majority thought fair share fees violated the First Amendment. Then, in 2016, the Court deadlocked 4-4 on the issue in Friedrichs v. California Teachers Association. Justice Scalia participated in oral arguments in Friedrichs--and indicated his position against fair share--but passed away before the Court issued its ruling.
Arguments today largely rehearsed the points made in Friedrichs and that have by now become familiar: on the one side, mandatory fair share represents compelled speech on public issues that a non-union-member (like Janus) may disagree with; on the other side, the interests in Abood justify any mild intrusion into First Amendment rights represented by a fee (and not actual compelled speech). Lurking just below the surface is the political wrangling over public-sector unions and the reality that a ruling against fair share will strike a serious blow to them.
If prior positions hold among the eight justices who participated in Friedrichs, as expected, the case will then turn on Justice Gorsuch. He revealed no cards today, though, staying quiet throughout the arguments.
On February 28, 2018, the United States Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky, a First Amendment challenge to Minn. Stat. §211B.11, entitled "Soliciting near polling places," and includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day."
The Eighth Circuit, in a brief opinion affirming the district judge's grant of summary judgment to the government defendants, upheld the statute against an as-applied First Amendment challenge.
The plaintiffs sought to wear Tea Party apparel and part of their argument was that the Tea Party was not a political party and that they had been subject to selective enforcement. The Eighth Circuit rather summarily rejected both of these arguments finding that they were not supported by the record. In a previous opinion, the Eighth Circuit had allowed plaintiffs to develop this record by reversing the district judge's initial dismissal of the complaint on the First Amendment as-applied claim, while affirming the dismissal of the First Amendment facial challenge and an equal protection challenge. One judge dissented on the First Amendment facial challenge claim. And it this facial challenge that is before the United States Supreme Court, the question presented by the petition for certiorari is: "Is Minnesota Statute Section 211B.11(1), which broadly bans all political apparel at the polling place, facially overbroad under the First Amendment?"
Undoubtedly the political attire at issue is expressive speech that the government could not ordinarily ban under the First Amendment. Thus, the status of the polling place on election day as an exception will be the centerpiece of the arguments. In Burson v. Freeman (1992), the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place. The plurality opinion by Justice Blackmun applied strict scrutiny, finding that 100 feet parameter involved a public forum and that the speech was being regulated on the basis of its content. However, confronted with a "particularly difficult reconciliation" of rights: "the accommodation of the right to engage in political discourse with the right to vote - a right at the heart of our democracy," the plurality found that this was a "rare case" in which a statute survived strict scrutiny.
Here, the State, as recognized administrator of elections, has asserted that the exercise of free speech rights conflicts with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud. A long history, a substantial consensus, and simple common sense show that some restricted zone around polling places is necessary to protect that fundamental right. Given the conflict between these two rights, we hold that requiring solicitors to stand 100 feet from the entrances to polling places does not constitute an unconstitutional compromise.
Concurring, Justice Scalia disagreed that the case involved a public forum: "Because restrictions on speech around polling places on election day are as venerable a part of the American tradition as the secret ballot," "exacting scrutiny" was inappropriate. Instead, Scalia contended that although the statute was content based, it was "constitutional because it is a reasonable, viewpoint-neutral regulation of a nonpublic forum."
In addition to this precedent, it will be difficult to ignore that the oral argument will be occurring at the United States Supreme Court with its specific instruction to visitors to the argument that "identification tags (other than military), display buttons and inappropriate clothing may not be worn." Additionally, two federal statutes, 40 U.S.C. §6135 and 40 U.S.C. 13k make it unlawful "to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the Supreme Court building or grounds. The Court determined that the prohibition of political speech as applied to the surrounding sidewalk of the Supreme Court was unconstitutional in United States v. Grace (1983) (Mary Grace was displaying a placard with the First Amendment), but stopped far short of declaring the statute unconstitutional. Dissenting in part, Justice Marshall contended that the entire statute should be unconstitutional, noting that it “would be ironic indeed if an exception to the Constitution were to be recognized for the very institution that has the chief responsibility for protecting constitutional rights.”
But after some D.C. courts had upheld the statutes, a D.C. district judge declared U.S.C. §6135 unconstitutional in Hodge v. Talkin (2013), causing the Supreme Court to amend its regulations regarding the term "demonstration" to exclude "casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.," but to nevertheless continue to prohibit "all other like forms of conduct that involve the communication or expression of views or grievances." Nevertheless, a person arrested for wearing a jacket with the words "Occupy Everywhere" as a seemingly casual visitor to the Supreme Court building achieved little success in his attempt to vindicate himself. In other courtrooms, judges have banned spectators from wearing expressions related to the proceedings, for example in the trial of Bei Bei Shuai for ingesting poison to kill herself that harmed her fetus, and in the high-profile criminal trial of Cecily McMillan for assaulting a police officer who she alleged grabbed her breast. The United States Supreme Court obliquely confronted the issue of courtroom spectator in 2006 in Carey v. Musladin, which was decided on other procedural grounds. (For more discussion of spectator attire in courtrooms see Dressing Constitutionally).
The courtroom analogy will most likely surface at some point during the oral argument. In its brief, the Minnesota Voters Alliance relies on Justice Marshall's partial dissenting opinion in Grace, while Manksy's Respondent's brief ventures a specific analogy:
Because voting rights are of such bedrock importance, a polling place—like a courtroom—can reasonably be restricted to reflect the solemn and weighty nature of the function that occurs there.
But it will be interesting to hear how specific comparisons the United States Supreme Court's own practices in banning political t-shirts and similar attire will be. As for the attire of those attending the oral argument, if past practices hold, none of them will be wearing a Tea Party t-shirt or even a button expressing a political viewpoint.
Friday, February 23, 2018
In its opinion in New York State Rifle & Pistol Ass'n v. City of New York, a unanimous panel of the Second Circuit, affirming the district judge, rejected a constitutional challenge to a New York City regulation regarding "premises license" for a handgun. Under 38 RCNY § 5-23, a person having a premises license “may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately.” The definition of "authorized" range/shooting club, however, includes a limit to facilities located in New York City and is the essence of the plaintiffs' challenge. The New York State Rifle & Pistol Ass'n, as well as three individual plaintiffs, argued that this limitation is unconstitutional pursuant to the Second Amendment, the dormant commerce clause, the right to travel, and the First Amendment. Their specific arguments centered on the two instances: that one plaintiff was prohibited from taking his handgun to his second home in Hancock, New York; and that all plaintiffs wanted to take their handguns to firing ranges and competitions outside of New York City.
On the Second Amendment challenge, the opinion for the panel by Judge Gerald Lynch tracked the analytic structure articulated by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. Assuming that the Second Amendment applied, the court concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' " The court found that the prohibition of a plaintiff from taking the handgun to his second home was not a substantial burden: he could have a handgun at his second home if he applied to that county and noted that the plaintiff did not even estimate the money or time it would cost to obtain a second premises license and handgun. Likewise, the court found that limiting their training opportunities to New York City - - - given that there are at least 7 training facilities in New York and one in each borough - - - was not a substantial burden. Moreover, "nothing in the Rule precludes the Plaintiffs from utilizing gun ranges or attending competitions outside New York City, since guns can be rented or borrowed at most such venues for practice purposes."
In applying intermediate scrutiny, the court found that public safety was an important interest served by the regulation. The court referred to a detailed affidavit by the Commander of the License Division who
explained that premises license holders “are just as susceptible as anyone else to stressful situations,” including driving situations that can lead to road rage, “crowd situations, demonstrations, family disputes,” and other situations “where it would be better to not have the presence of a firearm.” Accordingly, he stated, the City has a legitimate need to control the presence of firearms in public, especially those held by individuals who have only a premises license, and not a carry license.
Additionally, the city had an interest in enforcing the premises license - - - which again is distinct from a carry license - - - and under a prior rule allowing transport to ranges outside the city the Commander's affidavit concluded this had made it “too easy for them to possess a licensed firearm while traveling in public, and then if discovered create an explanation about traveling for target practice or shooting competition.”
After finding the regulations survived the Second Amendment, the court's treatment of the dormant commerce clause, right to travel, and First Amendment issues was more succinct. For both the dormant commerce clause and right to travel arguments, one of the most obvious problems in the plaintiffs' arguments was their failure to convincingly allege issues regarding crossing state lines. Under the commerce clause analysis, there was no showing that the city or state was engaging in protectionist measures and, as in the Second Amendment analysis, the plaintiffs were "free to patronize firing ranges outside of New York City, and outside of New York State; they simply cannot do so with their premises-licensed firearm." Similarly, the plaintiffs could travel, they simply could not bring their handgun licensed for a specific premises with them.
On the First Amendment, the court rejected the argument that being "forced" to join a gun club in New York City or not being allowed to join a gun club outside of the city qualified as expressive association. But even if it did, the rule does not mandate or forbid joining a specific club, again, the New York City rule "only their ability to carry the handgun that is licensed for a specific premises outside of those premises."
Thus, the Second Circuit rejected constitutional challenges that essentially sought to broaden a premises-only license into a carry-license for handguns.
Friday, February 16, 2018
Check out Garrett Epps's piece in The Atlantic reviewing Eugene Volokh and William Baude's amicus brief in Janus, the case testing whether fair-share fees for public-sector unions violate the First Amendment.
Volokh and Baude argue that mandatory fair-share fees for public-sector unions don't even raise free-speech problems--at least any more than other, familiar forms of government, or government-sponsored, speech.
Still, Epps writes that while "[t]he professors' brief is elegant and probably right . . . I doubt that their counsel will slow the court's stampede to overturn Abood."
Thursday, February 15, 2018
In its opinion in Citizens United v. Schneiderman, the Second Circuit rejected a challenge to the New York Attorney General's regulations requiring non‐profit organizations that solicit donations in NY to disclose their donors on a yearly basis.
The plaintiffs - - - Citizens United Foundation, a 501(c)(3)organization and Citizens United, a 501(c)(4) organization - - -have not been complying with the Attorney General's regulations requiring donor disclosure. Both organizations must submit to the IRS Form 990 with each year’s tax returns, which includes a Schedule B including the organization’s donors, the donors’ addresses, and the amounts of their donations. The Attorney General’s regulations have long required that a charitable organization’s annual disclosures include a copy of the IRS Form 990 and all of its schedules. 13 N.Y.C.R.R. § 91.5(C)(3)(1)(a). But the Citizens United organizations have only ever "submitted the first page of their Schedules B—omitting the parts identifying donors," which apparently went without objection until 2013.
The Citizens United organizations claimed that the New York disclosure requirements violated the First Amendment as chilling donors' speech, both facially and as applied. They also argued that the New York regulations were a prior restraint under the First Amendment. Additionally, they argued that the regulations violated due process and were preempted by the Internal Revenue Code.
The opinion by Judge Rosemary Pooler held that all of these challenges lacked merit. On the chilled speech claim, Judge Pooler's opinion for the unanimous panel found that the plaintiffs' reliance on National Association for the Advancement of Colored People v. State of Alabama ex rel. Patterson (1958) was misplaced. The court applied exacting scrutiny, not the strict scrutiny that the Citizens United organizations advocated, and found the government interests of preventing fraud and self‐dealing in charities were important and the regulations made it easier to accomplish these goals. In the as-applied challenge, the Citizens United charities argued essentially that the current New York Attorney General was hostile to them, but the court stated:
In this case, all we have to go on is a bare assertion that the Attorney General has a vendetta against Appellants. Appellants have not even pled that the Attorney General will turn that alleged bile into untoward interference with the material support for Appellants’ expression. That is a far cry from the clear and present danger that white supremacist vigilantes and their abettors in the Alabama state government presented to members of the NAACP in the 1950s.
While Judge Pooler's opinion noted that it might be a closer case if the donor lists were to be made public, she noted that the IRC mandates that they remain confidential, and the NY regulations incorporate this requirement. The argument that NY might not follow this, or that there have been leaks, was not sufficient.
The court also found that the prior restraint challenge was without merit:
Facially content‐neutral laws that require permits or licenses of individuals or entities engaged in certain forms of expression only constitute prior restraints when they (1) disallow that expression unless it has previous permission from a government official and (2) vest that official with enough discretion that it could be abused.
Here, neither of those circumstances were met.
What Appellants complain of is not a proto‐censorship regime but the inevitability of prosecutorial discretion with finite enforcement resources. Prevention of their solicitation can only arise if they fail to comply with content‐neutral, unambiguous, and narrowly drawn standards for disclosure—they need only submit a document they already prepare and submit to the IRS—and then only after warning and opportunity to cure. It is, in other words, a remedial measure, not ex ante censorship. Moreover, without any indication of bias in application, we cannot view the Attorney General’s discretion to determine which groups receive deficiency notices or face penalties for failing to file Schedule B as anything but a necessary manifestation of the need to prioritize certain enforcement efforts over others.
While the district judge had found the due process challenge was not ripe, the Second Circuit reversed that conclusion, and decided on that the claim had not merit. Affirming the district judge, the Second Circuit found there was no preemption.
Thus, the Citizens United charitable organizations will need to disclose the same information to New York and they do to the IRS or else face penalties. But it may be that they use some of their donations to petition the United States Supreme Court for review.
In its 285 page opinions in IRAP v. Trump, the Fourth Circuit en banc majority has found that the so-called Travel Ban 3.0, Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017, is essentially intended as a Muslim Ban and thus there is a likelihood of success on the merits of the First Amendment Establishment Clause challenge meriting a preliminary injunction.
The majority is composed of nine judges, with four judges (including a Senior Judge) dissenting. Some judges in the majority also wrote concurring opinions that would also grant relief on the statutory claims.
Recall that in October, Maryland District Judge Theodore Chuang has issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion, shortly after Hawai'i District Judge Derrick Watson had issued a nationwide injunction based largely on statutory grounds, which the Ninth Circuit affirmed.
Recall also that SCOTUS granted certiorari to the Ninth Circuit's opinion, adding the Establishment Clause issue to the questions to be considered. Most likely this case will be added to the SCOTUS docket.
The majority opinion by Chief Judge Gregory, after setting out the litigation history and preliminary injunction standard, delves into the Establishment Clause issue. Chief Judge Gregory begins by finding both that there is standing and that the case is ripe.
On the merits, Chief Judge Gregory's opinion first considers whether the proffered reason for the government act is "facially legitimate and bona fide" under Kleindienst v. Mandel (1972). The court assumes without deciding that the reason is facially legitimate, but holds that it is not bona fide:
here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.
The President’s own words—publicly stating a constitutionally impermissible reason for the Proclamation—distinguish this case from those in which courts have found that the Government had satisfied Mandel’s “bona fide” prong.
Chief Judge Gregory then found that the Travel Ban 3.0 failed the Lemon v. Kurtzman (1971) test which requires the government to show that its challenged action has a primary secular legislative purpose, and then, even if it does that its principal or primary effect neither advances nor inhibits religion and which does not foster ‘an excessive government entanglement with religion. Chief Judge Gregory's majority opinion concludes that Travel Ban 3.0 did not have a primary secular purpose but, like its previous incarnations, was motivated by anti-Muslim bias. Chief Judge Gregory noted the government's argument to disregard the President's pre-election statements was a difficult one to make, but stated it did not need to rely on any campaign statements "because the President’s inauguration did not herald a new day."
Among the incidents Chief Judge Gregory recounts is this one from November 28, 2017 (after the Travel Ban 3.0 September 24, 2017 Proclamation):
President Trump retweeted three disturbing anti-Muslim videos entitled: “Muslim Destroys a Statue of Virgin Mary!” “Islamist mob pushes teenage boy off roof and beats him to death!” and “Muslim migrant beats up Dutch boy on crutches!” The three videos were originally tweeted by an extremist political party whose mission is to oppose “all alien and destructive politic or religious doctrines, including . . . Islam.” When asked about the three videos, President Trump’s deputy press secretary Raj Shah responded by saying that the “President has been talking about these security issues for years now, from the campaign trail to the White House” and “the President has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” The Government does not—and, indeed, cannot—dispute that the President made these statements.
chose not to make the review publicly available and so provided a reasonable observer no basis to rely on the review. Perhaps in recognition of this, at oral argument before us the Government expressly disavowed any claim that the review could save the Proclamation. Instead, the Government conceded that the Proclamation rises and falls on its own four corners.
For the majority, then,
The contradiction between what the Proclamation says—that it merely reflects the results of a religion-neutral review—and what it does “raises serious doubts” about the Proclamation’s proffered purpose, and undermines the Government’s argument that its multi-agency review cured any earlier impermissible religious purpose.
Chief Judge Gregory's majority opinion summed up its reasoning:
Finally, on the scope of the injunction, the majority opinion arguably broadened it:
Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”
To the extent that the district court held that IRAP, HIAS, and similar organizations categorically lack a qualifying bona fide relationship with their clients, we conclude that this would be an abuse of discretion. We see no need to read more into the Supreme Court’s grant of a stay than what it held: that refugees with formal assurances do not categorically enjoy a bona fide relationship with a U.S. entity. Instead, IRAP, HIAS, and other organizations that work with refugees or take on clients are subject to the same requirements as all other entities under the Supreme Court’s bona fide relationship standard: a relationship that is “formal, documented, and formed in the ordinary course, rather than for the purpose” of evading the travel restrictions imposed by the Proclamation.
Nevertheless, the Fourth Circuit stayed its decision, in light of the Supreme Court’s order staying the district judge's injunction pending “disposition of the Government’s petition for a writ of certiorari, if such writ is sought."
Thursday, February 1, 2018
In his opinion in Hand v. Scott, United States District Judge for the Northern District of Florida Mark Walker declared Florida's re-enfranchisement scheme for persons convicted of felonies to be restored their right to vote unconstitutional under both the First Amendment and the Fourteenth Amendment's Equal Protection Clause.
The court's decision was on cross motions for summary judgment and Judge Walker opens his opinion by describing the Florida scheme:
Florida strips the right to vote from every man and woman who commits a felony. To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration. Until that moment (if it ever comes), these citizens cannot legally vote for presidents, governors, senators, representatives, mayors, or school-board members. These citizens are subject to the consequences of bills, actions, programs, and policies that their elected leaders enact and enforce. But these citizens cannot ever legally vote unless Florida’s Governor approves restoration of this fundamental right.
Florida’s Executive Clemency Board has, by rule, unfettered discretion in restoring voting rights. “We can do whatever we want,” the Governor said at one clemency hearing. One need not search long to find alarming illustrations of this scheme in action. In 2010, a white man, Steven Warner, cast an illegal ballot. Three years later, he sought the restoration of his voting rights. He went before the state’s Executive Clemency Board, where Governor Scott asked him about his illegal voting.
“Actually, I voted for you,” he said. The Governor laughed. “I probably shouldn’t respond to that.” A few seconds passed. The Governor then granted the former felon his voting rights.
While the state can deny persons convicted of a felony the right to vote under the Fourteenth Amendment as construed by the Court in Richardson v. Ramirez (1974), the issue before Judge Walker was whether the vote restoration process was constitutional. Seemingly, the state argued it had absolute discretion to restore voting rights. Judge Walker held that such discretion violated the First Amendment rights to free association and expression, and the Fourteenth Amendment's Equal Protection Clause.
On the First Amendment claim, Judge Walker first articulated the right of free political association and then the right to vote as including a First Amendment right, interestingly relying in part on Citizens United. Judge Walker writes that the unfettered discretion in vote restoration cannot survive exacting scrutiny. Even if the government interest in limiting the franchise to responsible persons is valid, "Florida does not use the least-restrictive means to pursue its interests in preventing possibly irresponsible citizens from choosing their leaders."
Florida’s vote-restoration scheme is crushingly restrictive. The scheme crumbles under strict scrutiny because it risks—if not covertly authorizes the practice of—arbitrary and discriminatory vote-restoration. When a scheme allows government officials to “do whatever [they] want,” viewpoint discrimination can slip through the cracks of a seemingly impartial process. [citing record] Such discrimination can lead to a denial of “the fruits of their association, to wit: [former felons’] political impact”—or widespread, insidious bias to benefit the Governor’s political party. Touchston, 234 F.3d at 1154 (Tjoflat, J., dissenting). State officials’ potential political, racial, or religious biases cannot poison the well of vote-restoration.
Judge Walker discussed several instances of possible discrimination and disparities, but ultimately concluded that it was the possibility of discrimination from unfettered discretion that was crucial. Additionally, the Governor as ultimate arbiter was fatal:
[t]he Governor has de facto veto authority over anyone’s restoration. All the component parts of the vote- restoration process that Defendants wave like shiny objects to distract from potential viewpoint discrimination—the investigations, case analyses, and hearings—mean nothing if the Governor alone has final authority to restore Plaintiffs’ rights.
Further, Judge Walker rejected the State's argument that the vote restoration scheme was akin to unreviewable executive clemency:
Executive clemency by its mere existence cannot serve as a legitimate, let alone compelling, state interest. No serious person would argue that an act of executive clemency that, for example, is motivated by race cannot run afoul of the Constitution simply because it is an act of executive clemency. This Court recognizes the novelty of a challenge to an executive clemency scheme. But “it is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And so, if a court finds unconstitutionality in an executive clemency scheme, its role is to strike the acts permitting the constitutional violation—not to declare its hands tied.
On the Equal Protection Clause claim, Judge Walker essentially applied rational basis scrutiny and found that the "violation in this case—the substantial risk of arbitrary and discriminatory vote-restoration based on an applicant’s identity and perceived voting preferences from partisan government officials— is worse than a coin flip." Judge Walker stated that while the state may have a legitimate interest in limiting the franchise to responsible voters, the means chosen failed because it was at best, "arbitrary and disparate," interestingly quoting Bush v. Gore, on which the plaintiffs relied. Judge Walker added that at worst, the scheme would be discriminatory.
Judge Walker ordered additional briefings regarding remedies. Even if the state does not appeal, the question of remedies will be a difficult one.
Meanwhile, a ballot measure to restore voting rights to persons convicted of felonies has just been approved for the November ballot.