Tuesday, December 11, 2012
Is a specialty license plate government speech permissible under the First Amendment? In a 21 page opinion and order in ACLU of North Carolina v. Conti, Senior United States District Judge James Fox held that North Carolina's "choose life" specialty license plate scheme was not protected government speech and therefore enjoined the issuance of such license plates.
Judge Fox described the North Carolina scheme as unique in comparison to other state statutory schemes and likewise noted that the legislature rejected offering other specialty plates that would have expressed an opposing view, such as "respect choice."
The central issue in the case, however, was whether the "choose life" specialty license plate could be described as "government speech" and thus protected under First Amendment doctrine as articulated in Rust v. Sullivan and most recently in the Court's unanimous 2009 opinion in Pleasant Grove City v. Summum.
Judge Fox rejected the state's argument that the degree of government control was "the" single factor test. Instead, Judge Fox relied upon the Fourth Circuit's four factor test:
- the central purpose of the program in which the speech in question occurs
- the degree of editorial control exercised by the government and private parties
- the identity of the literal speaker
- whether the government or private entity bears the ultimate responsibility for the speech
Judge Fox noted that these factors were consistent with Supreme Court precedent and that the Fourth Circuit had employed them recently.
Applying these factors, Judge Fox found that although the state exercised editorial control (despite the fact that the design and idea originated with a national organization outside the control of the state), the other factors weighed in favor of private, or hybrid private-state speech.
Judge Fox's order closed the case; it is sure to be appealed. Meanwhile, North Carolina car owners are not relegated to the standard license plate: Judge Fox's opinion states that there are 150 types of specialty license plates available in the state. More information is available here.
Sunday, December 9, 2012
The Ninth Circuit ruled last week in U.S. v. Keyser that a criminal defendant's hoax anthrax threat was not protected by the First Amendment.
Keyser, in an ill-fated and badly misguided effort to drum up support for his self-published book, Anthrax: Shock and Awe Terror, mailed hundreds of packets of powder labeled "Anthrax." The packets actually contained sugar. (The three mailings at issue in this case went to Congressman Radinovich's Modesto office, a McDonald's restaurant, and a Starbucks.) Keyser was convicted on two counts of mailing threatening communications and three counts of communicating false or misleading information regarding the presence of a biological weapon. We was sentenced to 51 months in prison. He appealed, in part, on the argument that his conviction and sentence violated free speech.
The Ninth Circuit disagreed. The court said that the mailings to McDonald's and Starbucks constituted unprotected true threats:
Given the broad media coverage of actual anthrax being sent through the mail in 2001, a reasonable person would understand that a recipient would perceive a packet of powder with the word "Anthrax" and a biohazard symbol printed on it as a threat. A reasonable person would also understand that the word "sample" would not alleviate that concern--if read and processed at all, the word would likely indicate a small amount of the actual substance, rather than a prop or representation.
Op. at 12.
The court said the mailings were also not protected as a hoax. The court cited and distinguished Alvarez (the Stolen Valor Act case from last term), quoted its own Alvarez ruling, and said that this case involved a false statement plus harm:
False and misleading information indicating an act of terrorism is not a simple lie. Instead, it tends to incite a tangible negative response. Here, law enforcement and emergency workers responded to the mailings as potential acts of terror, arriving with hazardous materials units, evacuating buildings, sending the samples off to a laboratory for tests, and devoting resources to investigating the source of the mailings. Recipients testified to being "scared to death," "petrified," "shocked and appalled," "worried," and feeling "instant concern." . . . Prompting law enforcement officials to devote unnecessary resources and causing citizens to fear they are victims of a potentially fatal terrorist attack is "the sort of harm . . . Congress has a legitimate right to prevent by means of restricting speech." United States v. Alvarez, 617 F.3d 1198, 1215 (9th Cir. 2010).
Op. at 14-15.
Tuesday, December 4, 2012
California's SB 1172, slated to become effective January 1 and prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18. Senior District Judge William Shubb, in an opinion issued late yesterday in Welch v. Brown, has issued a temporary injunction of the statute.
Considering the claims of two therapists and one potential therapist who had undergone SOCE as an adult, Judge Shubb first held that the plaintiffs did not have third party standing to assert the claims of minors or parents. As to the therapists, however, Judge Shubb held that their First Amendment claims were entitled to strict scrutiny which they were unlikely to survive on the merits.
In so doing, Judge Shubb rejected the argument that lesser standards under the First Amendment should apply given that the regulation was directed at a profession. Additionally, the judge rejected the argument that the regulation was directed at conduct rather than speech, holding that because "at least some forms" of SOCE involve "talk therapy," speech was the central issue.
Supporting the conclusion that strict scrutiny was the correct standard, Judge Shubb focused on the legislative history of SB1172: the "Legislature’s findings and declarations convey a consistent and unequivocal message that the Legislature found that SOCE is ineffective and harmful."
Below is a video of the legislative floor statement of the bill's sponsor, Senator Ted Lieu, and the subsequent vote:
For Judge Shubb, because "a mental health provider’s pursuit of SOCE is guided by the provider’s or patient’s views of homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality." Thus, Judge Shubb concluded that the statute was undoubtedly subject to strict scrutiny.
In addition to Ninth Circuit precedent, Judge Shubb relied heavily upon the Supreme Court's 2011 decision in Brown v. Entertainment Merchants Ass’n, finding unconstitutional California's violent video game sale to minors prohibition. Quoting from Entertainment Merchants, Judge Shubb stressed that SB1172 cannot survive strict scrutiny "unless the state demonstrates an “'actual problem’ in need of solving” and “a direct causal link” between SOCE and harm to minors. While protecting minors was a compelling state interest, Judge Shubb faulted the legislative findings:
evidence that SOCE “may” cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny.
Judge Shubb also faulted the "underinclusiveness" of the statutory scheme:
Here, SB 1172 prohibits only mental health providers from engaging in SOCE and, as defendants have pointed out, unlicensed individuals who do not qualify as “mental health providers” under the bill can engage in SOCE. If SOCE is harmful and ineffective, the harm minors will endure at the hands of unlicensed individuals performing SOCE is equal, if not greater,than the harm they would endure from mental health providers performing SOCE. In fact, the California Legislature has previously “recognized the actual and potential consumer harm that can result from the unlicensed, unqualified or incompetent practice of psychology.” [citation omitted] The limited scope of SB 1172 therefore suggests that it is likely underinclusive in its application only to mental health providers.
Given Judge Shubb's reasoning, it is likely that he will issue a permanent injunction and equally likely that the decision will be appealed to the Ninth Circuit.
In their article, Commercial Expression and Business Regulation in the Shadow of Citizens United and Sorrell, available in draft on ssrn, authors ConLawProf Randy Bezanson (pictured), William O'Hare, and Robert Miller ask "whether the system and market- based flexibility accorded government in its regulatory action will continue to be respected."
In interrogating this question, one of their three case studies of regulation is off-label drug marketing, the subject of yesterday's divided Second Circuit opinion reversing a criminal conviction on the basis of the First Amendment, and an application of Sorrell v. IMS Health, Inc. In their consideration of off-label drug advertising more generally, they write:
the apparent overbreadth of specific applications of a regulation will seem obviously unconstitutional without a perspective that recognizes a speech restriction as part of a broader system of similar speech regulations that, added together, protect the systematic and market justifications of government action. It may be obvious that sophisticated consumers of off-label drug treatments, or sophisticated investors in the new issue market for stock, don’t need the information or the waiting periods or the other regulatory steps that government may impose. But if those steps do help the market system by assuring equal and complete consumer information, even if at some inconvenience to a sophisticated few, there is justification for the looser scrutiny that the Supreme Court has historically accorded regulation of commercial speech.
Worth a read for anyone teaching or writing in the commercial speech area.
Monday, December 3, 2012
Second Circuit On First Amendment Right to Promote Drug for Off-Label Use Without Criminal Consequences
In a sharply divided and long overdue opinion in United States v. Caronia issued today, a panel of the Second Circuit reversed a conviction relying primarily on the Supreme Court's 2011 decision in Sorrell v. IMS Health, Inc.
The conviction, according to the jury verdict, was for "Conspiracy to introduce a misbranded drug into interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2)." However, Judge Denny Chin, writing for the majority, emphasized that Caronia's statements - - - promoting the off-label use of the drug while he was as a pharmaceutical marketer - - - were the basis of the conviction: "Caronia was, in fact, prosecuted and convicted for promoting Xyrem off-label." Thus, because the majority rejected the government's argument that the statements were (merely) evidence of intent, the conviction raised a First Amendment issue. The panel then extensively discussed Sorrell, beginning with an explication of its two-step analysis:
First, the Court considered whether the government regulation restricting speech was content- and speaker-based. The Court held that it was; the regulation was therefore subject to heightened scrutiny and was "presumptively invalid." Second, the Court considered whether the government had shown that the restriction on speech was consistent with the First Amendment under the applicable level of heightened scrutiny. The Court did not decide the level of heightened scrutiny to be applied, that is, strict, intermediate, or some other form of heightened scrutiny.
[citations omitted]. The panel concluded "that the government's construction of the FDCA's misbranding provisions imposes content- and speaker-based restrictions on speech subject to heightened scrutiny," and then that "the government cannot justify a criminal prohibition of off-label promotion even under Central Hudson's less rigorous intermediate test." The majority seems especially troubled that the crime, at least as the court has constructed it, is "speaker-based because it targets one kind of speaker -- pharmaceutical manufacturers -- while allowing others to speak without restriction."
In a vigorous dissent, Judge Debra Ann Livingston stressed that speech acts are often evidence of intent and that "the majority calls into question the very foundations of our century-old system of drug regulation." She provides a literary analogy to refute Caronia's argument that he "merely discussed “a perfectly lawful practice: the use of a lawful drug, Xyrem, for off-label purposes.”
But the fact that a physician or a patient could legally use Xyrem for an off-label purpose is not enough to make out Caronia’s First Amendment claim. There might be no law forbidding the consumption of arsenic. But this would not endow Abby and Martha with a First Amendment right to offer arsenic-laced wine to lonely old bachelors with the intent that they drink it. See Arsenic and Old Lace (Warner Bros. Pictures 1944). And any statements Abby or Martha made suggesting their intent—even if all of the statements were truthful and not misleading—would not be barred from evidence by the First Amendment simply because arsenic might legally be consumed.
While Judge Chin's opinion could - - - taken to its logical conclusion - - - have a dramatic effect, it seems limited to the pharmaceutical arena.
Thursday, November 29, 2012
The First Circuit ruled in Newton v. LePage that the Maine governor did not violate free speech by removing and relocating a mural from the state Department of Labor offices that he said was pro-labor.
Governor LePage ordered the mural's removal from the waiting room at the Maine DOL offices because he said he wanted the state to convey neutrality as between labor and employers. He said the mural, commissioned by the state and paid for by state and federal funds, didn't cut it. Five Maine residents sued, arguing that the removal amounted to viewpoint discrimination in violation of the First Amendment.
The First Circuit disagreed. It said that government has wide latitude in determining what art to display, or not to display, especially in a non-public forum (like a government office waiting room), and that it has a sufficient justification in appearing neutral. Moreover, the court noted that the government didn't propose to remove the mural entirely; instead, it will relocate it to an alternative location.
The court said that this case was easier for the government than Pleasant Grove City v. Summum:
Here, unlike Summum, the issue does not involve a public park, nor does it involve the government's decision whether or not to accept a private donation. It is also clear that no Equal Protection or Establishment Clause concerns are raised by the case. This case does not involve the suppression of private speech.
The government reiterated its commitment to relocate the mural at oral argument. After all, it said, this is now the most famous piece of art in Maine.
Chief Judge Royce C. Lamberth (D.D.C.) ruled today in Act Now to Stop War and End Racism Coalition v. D.C. that the District of Columbia's regulation governing the posting of signs on city lampposts violated the First Amendment on its face. Judge Lamberth granted summary judgment to the plaintiffs and thus ended this latest chapter in this long-running dispute over D.C. signs. But the ruling also invites the city to come back with a new sign regulation, maybe leading to the next chapter in this case.
The regulation--after five years of litigation and four changes--now reads,
108.5 A sign, advertisement, or poster shall be affixed for no more than one hundred eighty (180) days.
108.6 A sign, advertisement, or poster related to a specific event shall be removed no later than thirty (30) days following the event to which it is related. This subsection is not intended to extend the durational restriction in subsection 108.5.
108.11 Within twenty-four hours of posting each sign, advertisement, or poster, two (2) copies of the material shall be filed with an agent of the District of Columbia so designated by the Mayor. The filing shall include the name, address, and telephone number of the originator of the sign, advertisement, or poster, and if the sign is for an event, the date of the event.
108.13 For purposes of this section, the term "event" refers to an occurrence, happening, activity or series of activities, specific to an identifiable time and place, if referenced on the poster itself or reasonably determined from all circumstances by the inspector.
The court ruled that city lampposts were a designated public forum and that the reg created a content-based distinction (between signs for events and all other signs). But the court said that the city failed to provide a content-neutral justification for the distinction. It wasn't enough, the court said, that the city's attorney represented that the reg was designed to reduce litter and enhance aesthetics. The city had to produce more (like some actual proof of the city's actual purpose).
The court also said that the reg was unconstitutionally vague. Judge Lamberth ruled that 108.13 allowed an inspector to determine which signs qualified as "event" signs without sufficient criteria or guidance.
This is only the latest ruling in this long-running dispute and may lead to more reg changes and more litigation, especially if the District insists on its distinction between signs for events and all other signs.
Wednesday, November 28, 2012
The Seventh Circuit ruled this week in Embry v. City of Calumet that city aldermen did not violate free speech when they vowed not to ratify the mayor's nominee to be city department commissioner based on the nominee's support of the mayor in the prior election.
The case arose when Embry, the Commissioner for the Department of Streets and Alleys in Calumet City, a position appointed by the mayor, supported the mayor and a group of aldermen running as a team in the city's election. The aldermen defected from the team of candidates, however, and pressured Embry to support a rival candidate for another alderman slot. After Embry declined, the aldermen said they'd oppose ratification of Embry's appointment as Commissioner of a new, consolidated city department (that included Embry's old Department of Streets and Alleys). The mayor then nominated someone else, the council approved, and Embry lost the job.
Embry sued the aldermen, arguing that their opposition to his appointment violated free speech. He claimed that his case was governed by the public-employee speech rule in Connick v. Myers and Pickering v. Board of Education.
The Seventh Circuit disagreed. The court ruled that Embry's position was a policy-making position, subject to the Elrod-Branti rule that says that for policy-making jobs the "government employer's need for political allegiance . . . outweighs the employee's freedom of expression[.]" Op. at 4 (quoting Bonds v. Milwaukee Cnty., 207 F.3d 969 (7th Cir. 2000). In other words: political appointees can be removed for political reasons.
Moreover, the court said that Embry failed to allege any particular speech unconnected to political affiliation or policy views that led to his non-confirmation. Embry only alleged that he publicly supported the team, and that he was fired "based on [his] political allegiance to [the mayor]."
The ruling is consistent with rulings in other circuits and likely ends this case.
Monday, November 26, 2012
The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit. The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.
Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim. The Supreme Court declined to review that case, Liberty University v. Geithner. But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.
The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others). (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.)
The district court ruled against the plaintiffs on all counts and dismissed the case. The Fourth Circuit dismissed the case under the AIA and didn't reach the merits.
The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause. Thus after NFIB these issues appear to remain open on remand:
- Whether the mandates violate the Religion Clauses or the RFRA;
- Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
- Whether the mandates violate equal protection;
- Whether the mandate violates free speech and associational rights.
As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).
As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.
If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.
But then again, that's what many of us said about NFIB.
November 26, 2012 in Abortion, Association, Cases and Case Materials, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Religion, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Thursday, November 22, 2012
The relationship between Thanksgiving and the First Amendment's religion clauses, as well as to the economy, is a recurrent topic of constitutional conversation at this time of year.
President Obama's Thanksgiving Proclamation for 2012 includes several references to "God," such as:
"On Thanksgiving Day, individuals from all walks of life come together to celebrate this most American tradition, grateful for the blessings of family, community, and country. Let us spend this day by lifting up those we love, mindful of the grace bestowed upon us by God and by all who have made our lives richer with their presence."
The President has been criticized in the past for not including sufficient mentions of "God" in conjunction with Thanksgiving.
When President George Washington marked our democracy's first Thanksgiving, he prayed to our Creator for peace, union, and plenty through the trials that would surely come. And when our Nation was torn by bitterness and civil war, President Abraham Lincoln reminded us that we were, at heart, one Nation, sharing a bond as Americans that could bend but would not break.
The current President does not mention FDR, the president responsible for Thanksgiving being the second to last Thursday - - - rather than the last - - - for economic reasons. According to the National Archives:
In 1939, however, the last Thursday in November fell on the last day of the month. Concerned that the shortened Christmas shopping season might dampen the economic recovery, President Franklin D. Roosevelt issued a Presidential Proclamation moving Thanksgiving to the second to last Thursday of November. As a result of the proclamation, 32 states issued similar proclamations while 16 states refused to accept the change and proclaimed Thanksgiving to be the last Thursday in November. For two years two days were celebrated as Thanksgiving - the President and part of the nation celebrated it on the second to last Thursday in November, while the rest of the country celebrated it the following week.
Meanwhile, there is controversy about so-called "blue laws" banning the opening of stores on Thanksgiving day itself. Recall that the United States Supreme Court, in an opinion by Chief Justice Earl Warren, rejected the First Amendment challenges and upheld a criminal conviction under a Sunday blue law in McGowan v. Maryland, 366 U.S. 420 (1961).
Tuesday, November 20, 2012
District Judge to Hobby Lobby: No Substantial Burden on Religious Beliefs re: ACA Contraception Compliance
The contraception provision requirement of the ACA continues to foment litigation. However, unlike last week's decision by a federal district judge granting the preliminary injunction in favor of Tyndale House Publishers, a small Christian publishing house, yesterday a federal district judge denied a preliminary injunction sought by Hobby Lobby, a privately held corporation operating 514 arts and crafts stores in 41 states regarding the so-called "morning after" or "Plan B" contraceptive pill.
In a 28 page opinion, Judge Joe Heaton of the Western District of Oklahoma, denied Hobby Lobby's claims, as well as the claims by Mardel, a Christian supply and bookstore chain; both corporations are owned by the Green family through a management trust. Interestingly, much of the judge's analysis revolves around the identity of the plaintiffs as it relates to whether their First Amendment and RFRA are being violated.
Denying the preliminary injunction, Judge Heaton concluded:
Plaintiffs have not demonstrated a probability of success on their First Amendment claims. Hobby Lobby and Mardel, secular, for- profit corporations, do not have free exercise rights. The Greens do have such rights, but are unlikely to prevail as to their constitutional claims because the preventive care coverage regulations they challenge are neutral laws of general applicability which are rationally related to a legitimate governmental objective.
Plaintiffs also have failed to demonstrate a probability of success on their Religious Freedom Restoration Act claims. Hobby Lobby and Mardel are not “persons” for purposes of the RFRA and the Greens have not established that compliance with the preventive care coverage regulations would “substantially burden” their religious exercise, as the term “substantially burdened” is used in the statute. Therefore, plaintiffs have not met their prima facie burden under RFRA and have not demonstrated a probability of success as to their RFRA claims.
The applicability of free exercise rights and RFRA rights to corporations is resoundingly rejected by Judge Heaton. His analysis as to the persons involved does, in part, depend upon their attentuated relationship to the entities subjected to the ACA requirements.
In an excerpt published in Slate this morning, from his e-book, Camp Justice, journalist Mattathias Schwartz writes compellingly of covering the ongoing trial United States v. Khalid Sheikh Mohammed, et al. We most recently discussed Khalid Sheikh Mohammed (KSM), the so-called "mastermind" of 9-11 and the onlgoing legal proceedings, when KSM was arraigned.
Recall that whether or not KSM would have a trial - - - and where - - - were hotly contested matters. Now, Schwartz states that although the KSM trial at Guantanamo is an “open” and “public” proceeding [his quotes], accepting the Pentagon’s “invitation” to cover the proceedings, meant signing the 13-page Media Ground Rules document:
Among other things, I agreed not to disclose any Protected Information. The definition of Protected Information makes ample use of the word includes and sets no upper limit on what Protected Information might be.
The geographical restraints also limit reportial opportunities:
For the most part, News Media Representatives are confined to a few acres of Guantánamo, an area known as Camp Justice. Cut off from the town and the detention camps, Camp Justice is carved up into a jigsaw of designated zones by every conceivable type of wall: interlocking traffic barriers, chest-high, made of orange plastic; chains hanging between yellow stanchions; retractable fabric bands stretched airport-style between flimsier black stanchions; chain-link fences veiled in black tarps and topped with spools of concertina wire; chain-link blocks wrapped in green tarps and filled with rubble; “no photography” signs; “restricted area” signs; gates that swing on hinges; gates that pop up from the ground.
And then there is the trial itself, with the imposition of a 40 second sound delay.
This first hand journalistic account provides a useful context for any constitutional analysis of a "public trial," as well as for the ongoing discussions of national security and constitutionalism.
Sunday, November 18, 2012
Judge Reggie Walton (D.D.C.) on Friday granted plaintiffs a temporary injunction in Tyndale House Publishers, Inc. v. Sebelius stopping the Secretary from enforcing HHS regs under the Affordable Care Act that require health insurance plans to provide contraception coverage against a self-insured Christian publishing house. Judge Walton wrote that the plaintiffs were likely to succeed on their Religious Freedom Restoration Act claim and that they met other requirements for a temporary injunction. The ruling, should it stand, paves the way for self-insured plaintiff-corporations to challenge the contraception requirement under the RFRA.
Tyndale House Publishers is a small Christian publishing house that operates under a Christian "statement of belief and policy" outlining its religious beliefs. It doesn't offer its employees an outside health insurance plan; instead, it's self-insured and thus pays directly for its employees' health benefits. Mark Taylor, the other named plaintiff, is Tyndale's president and CEO.
The plaintiffs balked at HHS regs, enacted under the ACA, that, with certain exemptions for religious organizations, require employers to provide contraception as part of their employee health insurance plans. Importantly, they complained only about "drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo." They filed suit, arguing that the regs violated the RFRA; the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment; the Fifth Amendment Due Process Clause; and the Administrative Procedures Act.
The RFRA forbids the government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the government can "demonstrate that application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest." 42 U.S.C. Sec. 2000bb-1(a), (b).
Judge Walton first concluded that the plaintiffs had standing. He wrote that Tyndale had standing under EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), which held that a corporation has standing to assert the free exercise rights of its owners. Alternatively, Tyndale had third-party standing to assert its primary owner's free exercise rights.
As to the substance, Judge Walton wrote that Tyndale showed a "substantial burden," because
the contraceptive coverage mandate similarly places the plaintiffs in the untenable position of choosing either to violate their religious beliefs by providing coverage of the contraceptives at issue or to subject their business to the continual risk of the imposition of enormous penalties for its noncompliance.
Op. at 22. Judge Walton distinguished O'Brien v. HHS (E.D. Mo. 2012) (holding that the plaintiff did not suffer a substantial burden, because it provided employee health insurance through a group plan), because here the self-insured plaintiff, Tyndale, would pay directly for its employees' contraception (and not indirectly, through a group plan). Judge Walton explained:
The court dismissed the plaintiffs' RFRA claim [in O'Brien], holding that the plaintiffs had failed to show that the contraceptive coverage mandate substantially burdened their religious exercise. Describing the burden at issue as the "funds, which plaintiffs will contribute to a group health plan, [that] might, after a series of independent decisions by health care providers and patients covered by [the company's] plan, subsidize someone else's participation in an activity that is condemned by plaintiffs' religion," the court reasoned that the burden on the plaintiffs' religious exercise was simply too attenuated to qualify as "substantial." . . .
Here, the plaintiffs provide direct coverage to Tyndale employees through a self-insured plan in which "Tyndale acts as its own insurer." This difference in the manner in which coverage is provided is significant because while the company in O'Brien contributes to a health insurance plan which ultimately pays for the services used by the plan participants, Tyndale itself directly pays for the health care services used by its plan participants, thereby removing one of the "degrees" of separation that the court deemed relevant in O'Brien.
Op. at 23-24.
Judge Walton also concluded that the government's compelling interests in promoting public health and providing employed women with access to health care on par with employed men wouldn't be undermined by exempting Tyndale (and therefore weren't necessary here), because the government already exempts a number of other employers. He noted that Tyndale objected only to certain kinds of contraception--Plan B, ella, and intrauterine devices--and provided some other contraceptive coverage through its health plan, and that requiring Tyndale to provide the full range of contraceptives wasn't necessary to achieve public health and equality between female and male employees.
Thursday, November 15, 2012
Proposed Ordinance 120984 banning public nudity, scheduled for vote by the San Francisco Board of Supervisors on November 20, is already the subject of a constitutional challenge filed in federal court.
This pre-enforcement - - - indeed, pre-adoption - - - challenge suffers from a lack of Article III ripeness, but an adoption of the ordinance and the passage of 30 days for the ordinance to become effective would cure that defect.
On the merits, the complaint alleges that the proposed ordinance violates the First Amendment and the Equal Protection Clause. One of the more interesting arguments flows from one of the proposed ordinance's two exceptions: any person under the age of five years, and "any permitted parade, fair, or festival held under a City or other government issued permit."
The more generalized First Amendment challenge to a law banning nudity is not likely to suceed under the federal constitution. However, the California constitution could certainly be construed to protect nude expression. And even more compelling are the political and social arguments presented to the San Francisco Board of Supervisors that focus on San Francisco's identity as a haven for free expression, including nudity.
UPDATE: Federal District Judge Edward Chen granted the defendants' motion to dismiss the complaint in his Order (January 29, 2013).
Tuesday, November 13, 2012
For those following the British BBC scandal, the issue of Lord McAlpine's possible legal actions for defamation or libel - - - and against whom - - - raise comparative free soeech doctrines and theories.
An excellent discussion of the BBC controversy is over at Inforrm, including this useful background:
On 2 November 2012 the BBC Newsnight programme broadcast an item about sexual abuse at children’s homes in North Wales. One victim, Steve Messham told the programme that the inquiry uncovered just a fraction of the abuse. He said that his abusers included “a leading Tory politician of the Thatcher era”.
The fact that the programme was going to make these allegations was widely reported before transmission and the “leading Tory politician” was identified on Twitter before broadcast as Lord McAlpine. His name was widely disseminated on the internet after transmission but was not mentioned in the mainstream media.
On 8 November 2012, the “Guardian” reported that “Mistaken Identity” had led to the abuse claims against the “Top Tory”, and named Lord McAlpine as the Tory in question. Lord McAlpine then issued a statement denying the allegations Mr Messham apologised to Lord McAlpine over mistaken identity. The BBC apologised for the Newsnight report and, on 10 November 2012, the Director General, George Entwistle, resigned.
For ConLawProfs interested in the free speech aspects of the BBC/McAlpine "affaire," a good place to start is Marin Roger Scordato's 2007 article, The International Legal Environment for Serious Political Reporting Has Fundamentally Changed: Understanding the Revolutionary New Era of English Defamation Law, published in Connecticut Law Review and available on ssrn. After analyzing a landmark 2006 case, Scordato argues that while the definition of protected speech in England “is more direct and very likely more accurate than its American counterpart, it fails to meaningfully distinguish among plaintiffs who arguably are in significantly different circumstances as possible victims of defamatory publications.” Moreover, although the English standard “looks more broadly and thoroughly at the journalistic practice of the defendant, it does not ultimately provide to the valued speech the same level of protection from liability as the American actual malice standard.”
The status of the BBC as a governmental - - - or quasi-governmental - - - entity also complicates the "free speech" issues.
Monday, November 12, 2012
Some people in more than a few states have begun to "petition" to secede from the United States. Secession does come up from time to time; Texas has been a notable candidate, and in the intrastate context, there were even rumors (and humor) that Long Island might secede from New York.
The most recent "attempts" occur on the White House House website, on its "We The People: Your Voice in Government" page. The page quotes the First Amendment, including the petition clause (Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances). The page explains:
The right to petition your government is guaranteed by the First Amendment of the United States Constitution. We the People provides a new way to petition the Obama Administration to take action on a range of important issues facing our country. We created We the People because we want to hear from you. If a petition gets enough support, White House staff will review it, ensure it’s sent to the appropriate policy experts, and issue an official response.
Among the petitions, this one from Missouri seems drafted from a common template:
As the founding fathers of the United States of America made clear in the Declaration of Independence in 1776:
"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."
"...Governments are instituted among Men, deriving their just powers from the consent of the governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and institute new Government..."
However, the one from Arizona alters the second paragraph to state that the
citizens of the great state of Arizona have the right to stand for their principles. That man is granted unalienable rights, which are not the dispensations of the government, but find their beginnings in God and come from God alone. These are the principles that our forefathers stood for, the principles upon, which our Constitution is based, and those in which we firmly place our belief and resolve.
And the one from Tennessee simply reads "Helping the people of Tennessee."
Predictably, there is one from Texas and it stresses Texas:
The US continues to suffer economic difficulties stemming from the federal government's neglect to reform domestic and foreign spending. The citizens of the US suffer from blatant abuses of their rights such as the NDAA, the TSA, etc. Given that the state of Texas maintains a balanced budget and is the 15th largest economy in the world, it is practically feasible for Texas to withdraw from the union, and to do so would protect it's [sic] citizens' standard of living and re-secure their rights and liberties in accordance with the original ideas and beliefs of our founding fathers which are no longer being reflected by the federal government.
Not all the petitions are from "red" states with electoral votes going to the losing Republican candidate in last week's election: there are petitions from residents of Delaware, Pennsylvania, and New Jersey.
The constitutional significance of such petitions is dubious at best, but the goal seems to be provoking a response from the President.
Sunday, November 11, 2012
In its opinion in United States v. Hamilton, the Fourth Circuit rejected First Amendment arguments and upheld the conviction of a veteran for the wearing a military uniform without authorization, in violation of 18 U.S.C. § 702; and the wearing military medals and other insignia (military medals) without authorization, in violation of 18 U.S.C. § 704(a) and (d).
Hamilton is a veteran, honorably discharged in 1962 from the Marine Corp. because of an accidental injury during training, but as the Fourth Circuit described, he "served a total of nine months and twelve days of active duty. During his active duty, Hamilton did not serve in combat or receive any awards, was not commissioned as an officer, and was not deployed outside the United States." Two of the charges against Hamilton involved fraudulent claims of disability, exceeding the original disability; the Fourth Circuit affirmed these convictions over arguments of insufficient evidence.
The First Amendment challenges to what the Fourth Circuit labels the "insignia convictions" arose from Hamilton's appearance at a local Vietnam Veteran's Association "recognition ceremony." Hamilton, invited to speak as a last-minute substitute, and uncompensated, wore "the uniform of a United States Marine colonel, including an officer’s sword and belt, and white gloves," and adorned with many medals, including " two Navy Crosses, four Silver Stars, one Bronze Star, and seven Purple Hearts, among many other awards displayed on the uniform." While the Fourth Circuit noted that Hamilton's speech contained false statements, such as his purported combat experiences, it stated that "the content of that speech has no impact on Hamilton’s insignia convictions."
Indeed, the Fourth Circuit distinguished Hamilton's "insignia convictions" from the content of his speech - - - and thus from the Supreme Court's decision last term in United States v. Alvarez - - - by concluding that the "insignia statutes do not regulate pure speech but instead proscribe certain forms of expressive conduct." Thus, it considered the lower standard of intermediate scrutiny as articulated by the United States Supreme Court in the 1968 case of United States v. O’Brien, arising from the burning of a draft card as a protest to the Vietnam War. Yet the Fourth Circuit held that even under a more demanding standard of exacting scrutiny, the insignia statutes were constitutional.
Its conclusion that the government interest was compelling rested on its conclusion that unauthorized wearing of uniforms and medals contributed to a dilution of their worth, citing Alvarez. As to whether the criminal prohibitions were narrowly tailored, the Fourth Circuit distinguished Alvarez, concluding that the alternatives Hamilton suggested were "less applicable to the interests underlying the conduct-based prohibitions of the insignia statutes than the speech-based prohibition of 18 U.S.C. § 704(b)," at issue in Alvarez. The Fourth Circuit's analysis supporting the distinction is less than trenchant: the opinion stressed that:
the wearing of an unearned medal or uniform of an unearned rank is more convincing evidence of such actual attainment than words alone, by constituting ostensible, visual "confirmation" that the wearer earned such honors. As expressed by a familiar adage, "seeing is believing."
Thus, the alternatives approved in Alvarez - - - counter speech and a government database of recipients - - - were less effective. In sum, the panel concluded
that the analyses employed in the plurality and concurring opinions in Alvarez are inapplicable here. Although the governmental interests underlying the insignia statutes and Section 704(b) are similar, those interests are more greatly affected with respect to the conduct-related prohibitions in the insignia stat- utes than the speech-related prohibitions in Section 704(b) [at issue in Alvarez]. Moreover, the less burdensome alternatives identified by the plurality and concurrence in Alvarez, such as counterspeech and the possibility of a government-created database of Congressional Medal of Honor winners, are less feasible and less effective to counter the appearance created by the wearing of military uniforms and unearned military honors at issue in this case.
The panel's rejection of Alvarez on the basis that Hamilton's speech was more effective, rather than a conclusion that Hamilton's speech was less protected, is a rather troubling one.
[image: Bronze Star via]
For those ConLawProfs considering the recent New York tax exemption case regarding different types of artistic dance - - - and thus raising an implicit First Amendment issue - - - The Colbert Report video from last Friday might be enlightening, or at least a provocative, intervention:
Profs considering showing this in class should definitely view the entire video and use their best judgment about whether or not it is suitable.
Friday, November 9, 2012
Anne Applebaum's new book, Iron Curtain: The Crushing of Eastern Europe 1945-1956, is a sequel of sorts to her book Gulag, which won the Pulitzer prize. In a recent interview with Terry Gross on Fresh Air, Applebaum talked about the centrality of controlled media and art to Soviet Communist domination.
For example, there was a government suppression of "abstract art":
The fear of abstract art is that it could be interpreted in many ways, and who knows what you could read into a painting that didn't have a clear message? One of the obsessions that the Soviet Union and the Eastern European communist parties had was always controlling the message — all information that everybody gets has to be carefully controlled and monitored. Art was no exception. Art was supposed to tell a story, it was supposed to have a happy ending, it was supposed to teach, it was supposed to support the ideals of the party. There was no such thing as art for art's sake, and there was no such thing as art reaching into some kind of spiritual, wordless realm. No, art was done in service of the state, and it was something that was going to help mold people and create citizens who do what the state tells them, and who follow the rules.
While her project is not a comparative one, her book demonstrates the centrality of the constellation of rights protected under the United States' Constitution's First Amendment, including expression, media, and religion. Also important would be any rights of habeas corpus, due process, and those pertaining to criminal procedure as a means of resistance to government oppression.
Thursday, November 8, 2012
In a brief order in Doe v. Harris, federal district judge Thelton Henderson has issued a temporary restraining order of the implementation of Proposition 35 that requires sex offenders to disclose their internet providers and identities to law enforcement.
As described by the motion, filed by the ACLU, "the Californians Against Sexual Exploitation Act (“CASE Act” or “Act”), was enacted by voter initiative" Tuesday and is effective Wednesday:
It expressly requires all of the 73,900 current California registrants currently living in the community to “immediately” provide the police with information about their access to and use of the Internet for expressive purposes; they must also document and disclose any additions or changes to such information within 24 hours. A failure to comply with any of these new requirements is a crime, often a felony.
The challengers argue that the law is an unconstitutional infringement on anonymous speech, that its discrimination amongst speakers warrants strict scrutiny, and that its requirements are not sufficiently tailored to meet either strict scrutiny or intermediate scrutiny.
The judge found that there were sufficiently serious First Amendment issues for a temporary restraining order to issue.
The order scheduled an expedited filing schedule with a hearing set for November 20.