Tuesday, October 1, 2013
The First Circuit upheld bans in the City of Providence, Rhode Island, on accepting coupons or otherwise selling tobacco products at a discounted rate and on selling flavored tobacco products (other than cigarettes) against First Amendment and preemption challenges.
The City imposed the "Price Ordinance" and "Flavor Ordinance" in order to reduce youth tobacco use. Tobacco manufacturers and trade organizations sued, arguing that the Price Ordinance violated free speech and that both ordinances were preempted by federal and state law. The First Circuit rejected the challenges and upheld the ordinances in Nat'l Ass'n of Tobacco Outlets v. City of Providence.
The court ruled that the Price Ordinance didn't violate free speech, because the ordinance "'only precludes licensed tobacco retailers from offering what the Ordinance explicitly forbids them to do,' and that offers to engage in banned activity may be 'freely regulated by the government.'" Op. at 13-14 (quoting the district court).
The court also held that the Price Ordinance wasn't preempted by the Federal Cigarette Advertising and Labeling Act. The preemption provision of the Labeling Act says that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes[,] the packages of which are labeled in conformity with the provisions of this chapter." But Congress enacted an exception in 2009 (in response to the Supreme Court's ruling in Lorrilard) that says that a state or locality "may enact statutes and promulgate regulations, based on smoking and health . . . imposing specific bans or restrictions on the time, place, and manner, but not content, of the advertising or promotion of any cigarettes."
The court ruled that the Price Ordinance met the content-neutrality requirement in the exception, because "it merely regulates certain types of price discounting and offers to engage in such price discounting," not the content relating to health claims or warnings. Moreover, the court held that the Price Ordinance met the time, place, manner requirement. The court said that minimum price regulations met that standard (they were common when Congress enacted the exception, and the plaintiffs conceded that they met the standard), and that the Price Ordinance is wasn't materially different.
The court held that the Flavor Ordinance wasn't preempted by federal Family Smoking Prevention and Tobacco Control Act. The preemption clause of that Act prohibits states and localities from regulating "tobacco product standards" and "good manufacturing standards." The Act also includes a savings clause, however, which allows regulations "relating to" the sale of tobacco products. The court said that the Flavor Ordinance fell within the savings clause, because it's not a blanket prohibition (which, the plaintiffs claimed, was more than merely "relating to") but instead allows the sale of flavored tobacco products in smoking bars.
Finally, the court ruled that the Price Ordinance wasn't field-preempted by Rhode Island law, because Rhode Island hasn't occupied the field. The court also said that the ordinances didn't violate the state constitution, which prohibits local licensing measures, because the ordinances aren't licensing measures (and because the plaintiffs didn't challenge the City's licensing measure).
In an unanimous opinion in Marceaux v. Lafayette City-Parish Consolidated Government, a panel of the Fifth Circuit reversed and remanded the district court judge’s protective order requiring that the Plaintiffs, current and former police officers in the City of Lafayette, Louisiana, “take down” their website - - - "http://www.realcopsvcraft.com" - - - used to communicate their cause. (Note: the website is presently not operable).
The underlying lawsuit by the Plaintiff police officers claims that the government Defendants sought to “prevent police officers from reporting certain civil rights abuses and corruption” within the police department and “retaliated against them for objecting to these practices.” The website had “an image of the Lafayette Police Chief, a party in this suit; excerpts of critical statements made in the media concerning the Lafayette PD Defendants; certain voice recordings of conversations between the Officers and members of the Lafayette Police Department; and other accounts of the Lafayette PD Defendants’ alleged failings.” The website seemed to have been once owned by the Plaintiffs’ attorneys, but they “eventually transferred ownership of the website” to one of the police officers.
The appellate court rightly viewed the district judge’s order to cease the website as a prior restraint, but sought to “balance the First Amendment rights of trial participants with our affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity,” citing the classic case of Sheppard v. Maxwell, 384 U.S. 333 (1966).
In this civil case, theFifth Circuit, however held that there was not sufficient evidence to "establish a nexus between the comments and the potential for prejudice to the jury venire through the entirety of the Website." The panel found that ordering a removal of the website was not sufficiently “narrowly tailored” to "excising maters with a sufficient potential for prejudice to warrant prior restraint."
But the panel stated it did not intend to "tie the hands of the district court" in addressing some of the content of the website. As to the specific content of certain recordings made by the Plaintiffs and placed on the website, the panel did discuss the "ethics" of this, noting both the that ABA position is that a lawyer who records the conversation of another does not necessarily violate the Model Rules of Professional Conduct AND that the recordings were not made by an attorney. Thus, the district judge's conclusion that the recordings had to be omitted from the website because they were "unethically obtained" was disapproved.
This rather brief - - - 12 page - - - opinion is well reasoned and would make an interesting class exercise for First Amendment, especially should the website "go live" again.
[image circa 1900 via]
Monday, September 30, 2013
Yesterday we wrote about the latest case in Kansas challenging evolution in the classroom. In a comment, reader Eli Bortman gave us the heads-up that yesterday's NYT included an article on the same issue in Texas. (Thanks, Eli.)
Here's a bit from the Times piece that helps explain the edu-ese and pseudo-scientific language in COPE's complaint in the Kansas case:
By questioning the science--often getting down to very technical details--the evolution challengers in Texas are following a strategy increasingly deployed by others around the country.
There is little open talk of creationism. Instead they borrow buzzwords common in education, "critical thinking," saying there is simply not enough evidence to prove evolution.
COPE went even further, though, arguing that the Kansas standards (with (secular) evolution as a centerpiece) themselves represent a kind of religious orthodoxy, and that Kansas in imposing this orthodoxy, without balancing it with "origin science," violated the religion clauses, free speech, and the Eqaul Protection Clause. In doing so, COPE adopts the language and legal claims of opponents of creationism and tries to create an equivalence between its position and the position of science--putting itself on par with science, both on the "science" and in its legal positions in relation to science, and casting science as a kind of religion. Then, after creating this topsy-turvey world where religion is science and science is religion, COPE asks the question: If "origin scientists" have an equal claim to the truth, doesn't it violate equality, speech, and religious principles to exclude their position from the curriculum?
This isn't new, but as the COPE complaint and NYT piece suggest, creationism advocates may be getting a little better at clothing their positions in official- and technical-sounding langauge, and in turning the same constitutional claims that proponents of a curriculum based on science have used against creationism right back on them, in support of creationism. The strategy is designed to frame the debate as one scientific theory against another scientific theory, not science against religion, and to put the competing policy and constitutional claims on par in order to gain traction under the religion clauses, free speech, and equal protection.
Sunday, September 29, 2013
Citizens for Objective Public Education, or COPE, last week filed suit in federal court against the Kansas State Board of Education for adopting a science standards that include evolution as a fundamental concept. COPE argued that the standards, The Next Generation Science Standards and A K-12 Framework for Science Education, "will have the effect of causing Kansas public schools to establish and endorse a non-theistic religious worldview" in violation of the religion and speech clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
The complaint alleges that the curriculum indoctrinates impressionable young students by using a concealed "Orthodoxy" known as "methodological naturalism" or "scientific materialism." The Orthodoxy "holds that explanations of the cause and nature of natural phenomena may only use natural, material or mechanistic causes, and must assume that supernatural and teleological or design conceptions of nature are invalid."
The complaint asks the court to enjoin the implementation of the standards, or, alternatively, to order the schools to tell students that science doesn't have all the answers and to give "origins science" equal time.
The Fourth Circuit ruled last week in Educational Media Company at Virginia Tech v. Insley that a Virginia state ban on alcohol advertising in college newspapers violated the First Amendment as applied to student papers at Virginia Tech and U.Va.
The ruling means that the law can't ban these papers from running alcohol ads. But it also means that the law stay on the books and ineffect as to other student newspapers, unless and until they successfully challenge it, too.
Virginia law says,
Advertisements of alcoholic beverages are not allowed in college student publications unless in reference to a dining establishment . . . .
Student newspapers at Virginia Tech and U.Va. sued, arguing that the ban violated free speech. In a first round of litigation, the Fourth Circuit ruled that the ban didn't violate the First Amendment on its face. But the court remanded the case to determine whether the ban violated the First Amendment as applied to these two papers.
The court ruled last week that it did. In particular, the court held that the ban isn't appropriately tailored to the state's aim--that is, that the ban isn't more extensive than necessary to serve the government's interest--and thus violated the fourth prong of the Central Hudson test for regulations of commercial speech.
The problem was that the ban was designed to reduce under-age drinking, but the majority of the newspapers' readers were over 21. "Thus, the College newspapers have a protected interest in printing non-misleading alcohol advertisements, just as a majority of the College Newspapers' readers have a protected interest in receiving that information." Op. at 21.
As to the state's interest in preventing alcohol abuse by those over 21, the court said that the ban did exact what the Supreme Court prohibited in Sorrell v. IMS Health, Inc.: it sought to "keep people in the dark for what the government perceives to be their own good." Op. at 22 (quoting Sorrell).
Tuesday, September 24, 2013
According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard.
"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”
While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.
There is also the question of the lack of due process accorded to Professor Guth, as some have noted.
But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin. Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee. On this view, his speech should be protected under the First Amendment. Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.
Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).
Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.
Thursday, September 19, 2013
The Fourth Circuit's opinion in Bland v. Roberts addresses whether Sheriff Roberts violated the First Amendment rights of the six plaintiffs by terminating their employment in retailiation for their support of his opponent in an election, and whether Roberts has immunity. The court reverses in part the grant of summary judgment to the sheriff by the district judge.
As the panel notes, the applicable doctrine is a merging of public employee speech doctrine, especially their rights to speak as private citizens which was clearly the case here, and "the established jurisprudence governing the discharge of public employees, because of their political beliefs and affiliation," as in Elrod v. Burns (1976) and Branti v. Finkel (1980).
An important question for some of the plaintiffs was whether some of their actions "on Facebook" met the First Amendment threshold of "speech." The district court had concluded that “merely ‘liking’ a Facebook page was insufficient speech to merit constitutional protection,” but the Fourth Circuit panel disagreed. Its discussion of Fabeook's "like" - - - citing the amicus brief of Facebook, Inc. and posts on the Facebook site such as "What is a Facebook Page?" - - - led to its conclusion that once one understands the nature of what one of the plaintiffs
did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
Moreover, the importance of Facebook was clear, given that Sheriff Roberts "specifically warned his employees not to support [his rival] Adams through Facebook." Roberts also seemingly specifically "threatened that Adams supporters would not be reappointed."
Nevertheless, the Fourth Circuit panel found that three of the six plaintiffs did not present sufficient evidence to create a jury question. Additionally, the panel found that the defendant was entitled to qualified immunity given the state of the law and Eleventh Amendment immunity as to money damanges, but not on the issue of reinstatement.
Judge Ellen Lipton Hollander, a Maryland District Judge sitting by designation, wrote separately to dsisagree on the issue of qualified immunity on the state of the law.
The majority concludes that, at the relevant time, “a reasonable sheriff could have believed he had the right to choose not to reappoint his sworn deputies for political reasons,” and, on this basis, it determines that Sheriff Roberts is protected by qualified immunity with respect to his discharge of [the three plaintiffs]. In my view, when these deputies were discharged in December 2009, the law was clearly established that a sheriff’s deputy with the job duties of a jailer could not be fired on the basis of political affiliation.
This case will most likely be cited and known for its finding of "like" on Facebook as speech. But in addition, with its interweaving First Amendment issues and its questions of qualified immunity, Eleventh Amendment and otherwise, this case could be the basis of an interesting in-class exercise - - - or even exam question - - - for ConLawProfs.
Wednesday, September 18, 2013
The Sixth Circuit's succinct and unanimous opinion in Autocam Corporation v. Sebelius sided with the Third Circuit's July opinion in Conestoga Wood Specialties and against the en banc Tenth Circuit's June majority opinion in Hobby Lobby on the issue of whether a for-profit secular business has a free exercise of religion right (as a person) under RFRA, the Religious Freedom Restoration Act. There is some intertwining of the First Amendment free exercise of religion claim, but the Autocam decision rests on RFRA.
Autocam, like Conestoga Wood and Hobby Lobby, and its owners, argue that the regulations under the Patient Protection and Affordable Care Act of 2010 (“ACA”) requiring employers cover contraceptive methods for their employees - - - often called the contraceptive mandate - - - infringes on their religious rights. Autocam, like the others, is a large corporation. And a quick look at Autocam's "mission" on its website indicates no expression of a religious purpose, but only providing superior products.
The Sixth Circuit interestingly found that while Autocam as a corporation had standing to assert its claims, the Kennedy family as members (owners?) of a "closely held corporation" did not have shareholder standing: "Generally, shareholders of a corporation cannot bring claims intended to redress injuries to a corporation, even when the corporation is closely held." The Kennedys argued that this rule should not apply in RFRA claims, but the court found nothing in RFRA to support their view. Further, the court rejected their claims they were individually harmed or that a "pass through" theory could be applied.
As to the merits of the corporation's assertion of personhood under RFRA, the court found that RFRA did not support such an interpretation, and moreover, "Reading the term “person” in the manner suggested by Autocam would lead to a significant expansion of the scope of the rights the Free Exercise Clause" protected prior to Employment Division v. Smith and the enactment of RFRA.
By affirming the denial of the preliminary injunction by the district judge, the Sixth Circuit panel has entered the fray of a circuit split on the issue. With its unamious opinion, it does tilt the "count" toward a nonrecognition of religious rights of secular for proft corporations (recall that the en banc Tenth Circuit opinion was closely divided and the Third Circuit panel opinion was also split; additionally earlier this month a senior district judge in the Tenth Circuit applied applied Hobby Lobby to a for-profit nursing home chain.) However, the Sixth Circuit opinion adds little new to the analysis of this issue increasingly ripe for Supreme Court review.
September 18, 2013 in Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Medical Decisions, Opinion Analysis, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, September 17, 2013
May a defendant in a crminal case wear a niqab, a full face veil, to testify? That's the question a UK judge answered largely in the negative, although making some accomodations in his opinion in Queen v. D.
Recall that the U.K. does not have a First Amendment free exercise of religion- - - as Judge Murphy explains in his opinion:
The jurisdiction of England and Wales is essentially (though not formally) a secular democracy. I recognise that the jurisdiction is in the rather odd position that part of it (England) has an established church, while the other part (Wales) does not. But in neither part does the church interfere with the working of the courts.
Indeed, as a BBC analysis notes about the case in "The Crown Court at Blackfriars," "faith has long been part of the fabric of the state - so much so that the court at the heart of the veil case is named after a medieval religious order."
Nevertheless, the UK is bound by the European Convention on Human Rights, including Article 9, section 2 of which provides:
Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.
The judge balanced the freedom to manifest religion against the interests of public order (and fair trial), finding that the defendant must remove her niqab in order to testify, although she need not testify in open court and her image would not be disseminated.
For further analysis of the case, see Dressing Constitutionally Blog here.
Mary Beth Tinker - - - of Tinker v. Des Moines Independent Community School District (1969) - - - is going "on tour" to promote "to promote youth voices, free speech and a free press" and the First Amendment. On the Tinker Tour blog, Mary Beth Tinker writes, "I made a difference with just a simple, black armband. Can you imagine what a shy 13-year-old could do today with all of the extraordinary speech tools available? We look forward to encouraging her — and sharing real-life stories about how students are keeping the First Amendment alive today." (italics and bold in original).
The iconic photo of Mary Beth Tinker shows her and her brother holding the black armbands they wore to school that were at issue in Tinker:
For a recent controversy involving students' First Amendment rights to wear expressive items to school, see our recent post regarding the en banc Third Circuit's decision on students' First Amendment rights to wear breast cancer awareness bracelets to school.
Sunday, September 15, 2013
The image is from an architectural brochure linked in Glenn Greenwald's article this morning in The Guardian, "Inside the mind of NSA chief Gen. Keith Alexander," subtitled "A lavish Star Trek room he had built as part of his 'Information Dominance Center' is endlessly revealing."
Worth a look - - - and read - - - for anyone working on national security, state secrets, or surveillance issues.
Thursday, September 12, 2013
Michigan, like most states, has a vanity license plate program under which residents can apply for a "personalized" letter or number combination rather than being randomly assigned one, upon the payment of an additional fee. Under M.C.L. § 257.803b(1), the secretary of state "shall not issue a letter combination that might carry a connotation offensive to good taste and decency."
In the complaint filed in Matwyuk v. Johnson, the plaintiff, represented by the ACLU of Michigan, alleges that the secretary of state's office denied his application for "INFIDEL" (or some variation) because it was "offensive to good taste and decency." The plaintiff claims the "offensive to good taste and decency" provision on its face and as applied violates the First Amendment as overbroad and the Due Process Clause of the Fourteenth Amendment as vague.
Matwyuk's factual allegations are especially compelling:
Mr. Matwyuk is a retired U.S. Army sergeant who was deployed as an American soldier in Iraq during the height of hostilities in that country. He and his fellow troops were constantly under attack by insurgent extremists whose word for the American soldiers was “infidel.” Seeking to reclaim or reappropriate this term as a source of American pride and patriotism, Sergeant Matwyuk and other soldiers came to embrace their identity as “infidels.” He and other American veterans proudly refer to themselves as “infidels” as a reminder of the bond they share as survivors of a bloody war in a hostile part of the world.
To honor the sacrifices of his fellow soldiers and to express his pride and patriotism as a veteran of the war in Iraq, Sergeant Matwyuk wishes to obtain a personalized Michigan license plate that reads “INFIDEL" . . . .
Unlike other license plate cases involving compelled speech in the usual license plate design or speciality license plate design schemes, here the issue is the very letters and numbers that individualize the identification of the license plate. Nevertheless, some of the same doctrines will be at issue, including the license plate being a "forum" that the government has opened for speech. Additionally, doctrines regarding interpretations of "decency" - - - as opposed to the established meanings of obscenity - - - will also be at issue. These doctrines tend to support the plaintiff's case.
Wednesday, September 11, 2013
Judge Ketanji Brown Jackson (D.D.C.) today denied the American Meat Institute's motion for a preliminary injunction against new meat labeling rules of the Agriculatural Marketing Service. The AMI argued in American Meat Institute v. USDA that the new country-of-origin, or COOL, rules violated the First Amendment, the Agriculture Marketing Act, and the Administrative Procedures Act. When the AMI sought a preliminary injunction, Judge Jackson ruled that it failed to demonstrate a likelihood of success on any of the claims.
The AMS's COOL rule, final and published in May 2013, requires meat labels that designate the country where the animal was born, raised, and slaughtered, in three categories: Category A, "Born, raised, and slaughtered in the United States"; Category B, "Born in Country X, raised and slaughtered in the United States"; Category C, "Born and raised in Country X, slaughtered in the United States"; and Category D, "Product of Country X." In so designating, the 2013 rule does not allow "commingling of muscle cut covered commodities of different origins"--that is, it doesn't allow meat from different countries to be commingled in the same labeled package. (The 2009 rule did allow commingling, but the AMS changed it in 2013 in order to comply with a WTO ruling and to "let consumers benefit from mor especific labels.")
The AMI alleged that the 2013 COOL rule violated free speech, but Judge Jackson disagreed. The court wrote that Zauderer rationality rule applied (and not the Central Hudson intemediate scrutiny test), because the COOL rule is a disclosure requirement that deals with only "purely factual and uncontroversial" disclosures about where the animal was born, raised, and slaughtered, and because the 2013 rule targeted "deceptive speech" insofar as the earlier rule would have caused confusion about the origin of commingled meat.
The court held that Zauderer's rationality was easily met here: "there is clearly a reasonable relationship between the government's interest in preventing consumer confusion about the origins of muscle cut meat, on the one hand, and the required disclosure of specific production step information, on the other."
The ruling comes on the heels of two cases from the D.C. Circuit addressing when Zauderer or Central Hudson applies. In one, R.J. Reynolds Tobacco Co. v. FDA, the D.C. Circuit held that Central Hudson applied to FDA regs requiring certain textual warnings and graphic pictures on cigarette packages, because the pictures weren't designed to correct consumer confusion or otherwise correct deceptive speech. But in the other, Spirit Airlines v. USDOT, the D.C. Circuit held that Zauderer applied to a DOT rule requiring that the total cost of airfare, inclusive of tax, be the most prominent price displayed on airline advertisements and travel websites. The court said that DOT's regs required factual information and was directed at possibly misleading commercial speech.
Relying on the Tenth Circuit's decision in Hobby Lobby v. Sebelius, Senior Judge Wiley Daniel enjoined the enforcement of the ACA's preventative health mandate regarding certain contraceptive methods for employees in his opinion in Briscoe v. Sebelius.
As the judge states, Briscoe is an Evangelical Christian and owns Continuum Health Partnerships, Inc., Continuum Health Management, LLC, and Mountain States Health Properties, LLC. Briscoe’s secular, for-profit companies manage and operate senior care assisted living centers and skilled nursing facilities. Briscoe is the sole member and manager of Continuum Health Management, LLC and Mountain States Health Properties, LLC. Briscoe is also the lone shareholder of Continuum Health Partnerships, Inc.
Given the precedent of Hobby Lobby, the district judge spent little analysis on the underlying issues, but did analyze the requirements for a preliminary injunction. This included finding that the 200 persons employed by the plaintiff companies were much less than the "millions of others" persons exempted under other provisions.
Tuesday, September 10, 2013
Sexual solicitation statutes suffer from challenges based upon overbreadth and vagueness. In its opinion in Bushco, Inc. v. Shurtleff, a panel of the Tenth Circuit upheld amendments to Utah's statute, reversing the district judge on the unconstitutionality of one of the provisions.
1. A person is guilty of sexual solicitation when the person: ... .
c. with intent to engage in sexual activity for a fee or to pay another person to commit any sexual activity for a fee engages in, offers or agrees to engage in, or requests or directs another to engage in any of the following acts:
i. exposure of a person’s genitals, the buttocks, the anus, the pubic area, or the female breast below the top of the areola;
iii. touching of a person’s genitals, the buttocks, the anus, the pubic area, or the female breast; or
iv. any act of lewdness.
2. An intent to engage in sexual activity for a fee may be inferred from a person’s engaging in, offering or agreeing to engage in, or requesting or directing another to engage in any of the acts described in Subsection (1)(c) under the totality of the existing circumstances.
The Tenth Circuit, like the trial judge, rejected the First Amendment challenges, applied the test for expressive conduct from the 1968 case of United States v. O'Brien, and found that all the O'Brien prongs were satisfied. It did note, however, an as-applied challenge to overbreadth was possible.
On the vagueness claim, the panel found that § 1313(1)(c) was not unconstitutionally vague, again affirming the district judge. However, the Tenth Circuit panel disagreed with the trial judge's conclusion that the subsequent provision - - - § 1313(2) - - - was unconstitutionally vague. Instead, the Tenth Circuit panel found that the language "under the totality of the existing circumstances" would constrain a police officer's discretion rather than encouraging arbitrary and discriminatory enforcement as the district judge had reasoned.
The Tenth Circuit's opinion demonstrates how difficult it is to prevail on a challenge to a sex solicitation challenge. Interestingly, it was Bushco, Inc, an escort service company, that appealed from its partial victory in the district court, with the State Attorney filing a cross-appeal.
Saturday, September 7, 2013
In its opinion in Demers v. Austin, a panel of the Ninth Circuit this week explicitly ruled that First Amendment claims concerning "teaching and writing on academic matters by teachers employed by the state" are not governed by the Court's decision in Garcetti v. Ceballos. Decided in 2006, Garcetti denied First Amendment protections to a prosecutor who testified for the defense regarding his misgivings about the veracity of an affidavit used to obtain a search warrant and then suffered adverse employment actions. Garcetti has made First Amendment claims arising from a course of employment exceedingly difficult to sustain, a situation the Court seems disinclined to revisit.
The Ninth Circuit held that rather than being subject to an analysis under Garcetti, "teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968)."
Under Pickering, the employee's speech must be a matter of "public concern." Professor Demers' speech, for which he alleged he was retaliated against, consisted (at least in part) of a two page pamphlet, "The 7-Step Plan for Making the Edward R. Murrow School of Communication Financially Independent."
Named for the famous journalist (pictured above), the school as part of the Washington State University system, was in flux; Demers distributed the plan while he was a on the Murrow School’s “Structure Committee,” which was actively debating the issues. The Ninth Circuit stated:
protected academic writing is not confined to scholarship. Much academic writing is, of course, scholarship. But academics, in the course of their academic duties, also write memoranda, reports, and other documents addressed to such things as a budget, curriculum, departmental structure, and faculty hiring. Depending on its scope and character, such writing may well address matters of public concern under Pickering.
Because Demers' pamphlet "made broad proposals to change the direction and focus of the School," rather than voicing "personal complaints," and because Demers' widely disseminated the document (including sending it to newspapers [as in Pickering] and posting it on his website), the panel found it was a matter of public concern.
Nevertheless, Demers was entitled to scant relief because the Ninth Circuit panel also held that the Defendants were entitled to qualified immunity: the Defendants certainly reasonably could have believed that their conduct was lawful “in light of clearly established law and the information [that they] possessed.” Indeed, because the panel acknowledged it was breaking new ground, it could not have held otherwise. But the panel did note that qualified immunity did not preclude injunctive relief.
This is an important opinion recognizing academic freedom under the First Amendment. At a relatively brief 26 pages, it is nevertheless closely reasoned both doctrinally and in its application.
And its sure to be at issue should the disciplining of the professor for a political "rant" we discussed earlier this week be litigated.
Thursday, September 5, 2013
As reported in The Detroit News this afternoon, a Michigan State University creative writing professor and novelist, William S. Penn, has been relieved of his teaching duties by administration for his anti-conservative and anti-Republican remarks made during class.
Penn is a highly regarded writer and professor whose work often centers on his Native American/Anglo identity. For example, his 1996 creative nonfiction book, All My Sins are Relatives, won a North American Indian prose award.
Given the current constructions of the Supreme Court's 2006 decision in Garcetti v. Ceballos, Penn will have a difficult time showing he is speaking as a citizen rather than as a government employee and thus entitled to First Amendment protection. Indeed, the Sixth Circuit in Evans-Marshall v. Board of Education of Tipp City, which we discussed when it was decided in 2010, upheld the termination of a high school creative writing teacher who assigned Ray Bradbury's Fahrenheit 451. To explore that book’s theme of government censorship, she also developed an assignment based on the American Library Association's "banned books."
However, when the Sixth Circuit rejected the "academic freedom" argument of Evans-Marshall, it opined that such a concept is limited to universities and does not extend to high schools. As a university professor, Penn may have a better chance at making an academic freedom argument.
This could make a terrific in class exercise for ConLawProfs teaching First Amendment.
UPDATE: Take a look at the new Ninth Circuit opinion regarding academic freedom and Garcetti. This would substantially improve Penn's position if adopted by the Sixth Circuit.
UPDATE 2: Statement of the MSU AAUP Chapter in support of academic freedom (and further fact intvestigation).
Daily Read: Interview with the Authors of Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America
Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America is the just released book that lots of people who have an interest in surveillance and its constitutionality are talking about.
The authors, Matt Apuzzo and Adam Goldman, two AP reporters who won a Pulitzer Prize for their reporting on the New York City Police Department's surveillance of Muslims, gave an interview to "The Gothamist" and it's definitely worth a read. For example, the authors say that some police officials essentially said "Hey look we have to think differently about activities that would be protected by the First and Fourth Amendments because they could actually be precursors to terrorism." As one author responds: "That's just an incredible thing, when you think about the fact that a municipal police department is taking it upon itself [to decide] that constitutionally-protected speech is a warning sign for terrorism."
The authors state that their book is well-sourced, and indeed, the book has a companion website with maps and documents.
The authors will be appearing with Don Borelli, Former FBI Assistant Special Agent in Charge of the New York Joint Terrorism Task Force, at the Brennan Center for Justice in NYC on September 16, 2013. Info and rsvp here.
Sunday, September 1, 2013
Texas Penal Code 21.15 seeks to do just that, providing:
A person commits an offense if the person: (1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room: (A) without the other person’s consent; and (B) with intent to arouse or gratify the sexual desire of any person.
While Texas courts had previously upheld the statute, the Texas Fourth Circuit Court of Appeals, sitting in San Antonio, ruled on a pretrial writ of habeas corpus that the statute was unconstitutional in its opinion in Ex Parte Thompson.
In its relatively brief discussion, the unanimous three judge panel held that "the statute not only restricts an individual’s right to photograph, a form of speech protected by the First Amendment, but the statute also restricts a person’s thoughts, which the U.S. Supreme Court has held is 'wholly inconsistent with the philosophy of the First Amendment.'" [citations omitted].
The court, however, rejected the argument that the statute was a content restriction, instead finding that it was "imposing time, place, and manner restrictions that are unrelated to content," and thus merited "intermediate scrutiny" under United States v. O’Brien. While O'Brien - - - the draft card burning case - - - is generally thought to be applicable to expressive conduct, the panel here uses O'Brien's factors to ultimately conclude that the statute is facially overbroad "reaching a substantial amount of constitutionally protected conduct," and relying in part on the Supreme Court's 2010 opinion in United States v. Stevens, declaring the federal "crush porn" statute unconstitutional.The opinion's analysis and use of precedent might trouble some First Amendment scholars and it will be interesting to watch whether the case reaches the Texas Court of Criminal Appeals [thanks to commentator for clarifying Texas court system].
Friday, August 30, 2013
The ACLU earlier this week filed a motion for a preliminary injunction in ACLU v. Clapper, the case in the Southern District of New York challenging the NSA's mass collection of Americans' telephone data. We most recently posted on the NSA program, in EFFs suit against it, here.
The ACLU argues that it has a substantial likelihood of success on its Fourth and First Amendment challenges to the NSA program. The group also argues that the government exceeded its statutory authority under Section 215 of the Patriot Act in collecting telephony metadata.
At the same time, the government filed a motion to dismiss. The government claims that the ACLU lacks standing (under Clapper v. Amnesty International), that Congress impliedly precluded judicial review of the NSA program, that the NSA program is authorized by Section 215 of the Patriot Act, and that the program doesn't violate the Fourth and First Amendments.
Standing will certainly be an important threshold issue in the case, especially after the Court's ruling in Amnesty International. In that case, the Court ruled that a group of attorneys and organizations didn't have standing to challenge the FISA Amendments Act, which allowed the Attorney General and the DNI to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be outside the United States. The Court said that the plaintiffs' alleged injury-in-fact was too speculative--that the plaintiffs couldn't show that they'd be targets of surveillance under this FISA authority, that the FISA court would necessarily approve the surveillance of them, or that the government would succeed in its surveillance of them.
Here, in contrast, the ACLU alleged in its complaint that its telephone communications were and are monitored, that this monitoring would reveal privileged and sensitive information between the ACLU and its clients, and that the monitoring will likely have a chilling effect on the group's communications with clients. In other words, the ACLU tried to navigate the Amnesty International barrier and show with more determinacy that it has suffered a sufficient injury in fact.
August 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)