Friday, April 4, 2014

En Banc DC Circuit to Hear First Amendment Challenge to Mandatory Labeling of Meat Regulation

In an order today, the District of Columbia Circuit Court that American Meat Institute v. United States Dep't of Agriculture will be heard en banc.  Animated_cow

Recall that in its opinion last week, a panel of the DC Circuit upheld a requirement mandating the labeling of meat by country of origin.  Resolving the First Amendment challenge involves a construction of  Zauderer v. Office of Disciplinary Counsel (1985), and the panel itself suggested that the "full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information."

Here's the issue as the court's order for simultaneous supplemental briefs phrases it:

Whether, under the First Amendment, judicial review of mandatory disclosure of "purely factual and uncontroversial" commercial information, compelled for reasons other than preventing deception, can properly proceed under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), or whether such compelled disclosure is subject to review under Central Hudson Gas & Electric v. PSC of New York, 447 U.S. 56 (1980).

The briefs are due April 21. 

 UPDATE: EN BANC OPINION here.

April 4, 2014 in Cases and Case Materials, First Amendment, Speech | Permalink | Comments (1) | TrackBack (0)

Daily Read: E-Book by Collins and Skover on McCutcheon and Campaign Finance

WMS-210x315Published on the same day that the Court rendered its 5-4 decision in McCutcheon v. Federal Election CommissionWhen Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment is an ebook by ConLawProfs Ron Collins and David Skover.

A taste of the authors' analysis is apparent in their "foreward" to the SCOTUSblog symposium on the case, "It's all forward now."  They write that in "the past eight years, since Chief Justice John Roberts and Justice Samuel Alito have been on the Court, the Justices have handed down six First Amendment campaign finance opinions" all of which have declared a campaign finance regulation unconstitutional under the First Amendment, and five of which were 5-4 decisions. They also provide some "takeaways" from the opinion. 

The book will certainly be a must-read for anyone interested in campaign finance and the First Amendment.

April 4, 2014 in Books, Campaign Finance, First Amendment, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2014

Second Circuit Holds NYC Can Ban Religious Services in School Buildings

Does a city policy governing "extended use" of school facilities that excludes permits for the "purpose of holding religious worship services, or otherwise using a school as a house of worship" violate the First Amendment?

The Second Circuit in its opinion in Bronx Household of Faith v. Board of Education of the City of New York answered in the negative, a majority of the panel holding that the policy, Regulation I.Q., does not violate either the Free Exercise Clause or the Establishment Clause.

If this controversy sounds familiar, that would not be surprising.  We discussed it here, and as today's opinion notes, the litigation has been "long-running," citing Bronx Household of Faith v. Bd. of Educ. of City of New York, 650 F.3d 30 (2d Cir. 2011) (“Bronx Household IV”); Bronx Household of Faith v. Bd. of Educ. of City of New York, 492 F.3d 89 (2d Cir. 2007) (“Bronx Household III”); Bronx Household of Faith v. Bd. of Educ. of City of New York, 331 F.3d 342 (2d Cir. 2003); Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207 (2d Cir. 1997). 

800px-Winslow_Homer_-_Country_School
Country School by Winslow Homer circa 1873 via

Today's opinion  - - - Bronx Household V - - - reverses the district judge's grant of an injunction on Free Exercise claims which were arguably not before the courts previously.  The majority of the Second Circuit panel, in an opinion by Judge Pierre Leval joined by Guido Calabresi, carefully refuted the district judge's reasoning.  In short, the panel majority held that Locke v Davey, 540 U.S. 712 (2004) (finding that the exclusion of devotional theology degree programs from eligibility for state scholarships does not violate Free Exercise Clause) was more apposite than Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)(holding that an ordinance "targeting" the Santeria practice of animal sacrifice merited strict scrutiny and violated the Free Exercise Clause). 

The panel rejected the argument that the Regulation I.Q. targets religion generally or targets religions that have worship services.  The panel also rejected the attempt to distinguish the scholarship in Locke v, Davey, noting that under the "extended use" policy, the city subsidizes the use of school facilities since the organizations can use the facilities without cost.  The panel also found that the city's desire not to violate the Establishment Clause was a valid one.  As the panel summarized:

In view of (1) the absence of discriminatory animus on the part of the Board against religion, or against religions that conduct worship services; (2) the bona fides and the reasonableness of the Board’s concern that offering school facilities for the subsidized conduct of religious worship services would create a substantial risk of incurring a violation of the Establishment Clause claim; and (3) the fact that the Board’s policy (a) leaves all persons and religions free to practice religion without interference as they choose, (b) treats all users, whether religious or secular, in identical fashion, and (c) imposes no burden on any religion, leaving all free to conduct worship services wherever they choose other than the Board’s schools; as well as the other reasons recited in this opinion and in Bronx Household IV, we conclude that Reg. I.Q. does not violate Plaintiffs’ rights to free exercise of religion, whether or not it is subject to strict scrutiny.

As to the Establishment Clause, the court rejected Bronx Household's argument that for the city to determine what constituted "religious worship services" would infringe the Establishment Clause.  Bronx Household relied upon Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012) - - - an example of how doctrine has been changing during this protracted litigation - - - but the majority expressed a very different view:

Hosanna-Tabor, moreover, does not merely fail to support Bronx Household’s claim of Establishment Clause violation due to excessive entanglement by the Board; it actively contradicts the argument. This is because in Hosanna-Tabor the Supreme Court itself did precisely what the District Court found a governmental entity prohibited from doing.

In other words, when the United States Supreme Court "undertook to make its own determination whether the plaintiff was a minister subject to the ministerial exception," it engaged in the very same type of determination that Bronx Household argues would violate the Establishment Clause. 

If Senior Judge John Walker, dissenting, has his way, the Court might have a chance to discuss this Establishment Clause rationale again.  Walker contends that this "case presents substantial questions involving the contours of both religion clauses and the Free Speech Clause of the First Amendment, the resolution of which are ripe for Supreme Court review."  Most certainly, Bronx Household will be quoting that language in any petition seeking Supreme Court review.

April 3, 2014 in Courts and Judging, Establishment Clause, First Amendment, Free Exercise Clause, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 2, 2014

Court Strikes Aggregate Campaign Contribution Limits

A sharply divided Supreme Court today in McCutcheon v. FEC struck the aggregate federal campaign contribution limits.  The five-justice majority ruled that the limits violated the First Amendment.

Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justice Breyer wrote the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan.

Our most recent post on the case is here.

Recall that aggregate limits restrict the total amount of money an individual can contribute to all candidates, PACs, and parties.  Base limits, which were not at issue in the case, restrict the amount an individual can contribute to an individual candidate.  (The Court said that base limits are still constitutional, as are disclosure requirements.)

The majority said that under aggregate limits

A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance--clear First Amendment harms that the dissent never acknowledges.

It also said that aggregate limits do not control quid pro quo corruption or the appearance of corruption--the reasons that the Court has upheld individual limits.

The Court said that the government had other ways to advance its anti-circumvention interest--the interest in preventing a single donor from circumventing base limits by giving to multiple recipients with the expectation that they funnel the contributions to one candidate.

The ruling deals another major blow, after Citizens United, to efforts to restrict the amount of money in politics.

April 2, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Daily Read: Mother Jones on Hobby Lobby's Investments (in Contraception)

Last week's oral arguments in Hobby Lobby v. Sebelius and the companion case of Conestoga Wood Specialities Corp. v. Sebelius saw discussions about the substantial burden on the companies regarding providing contraceptive coverage and included Chief Justice Roberts noting that Hobby Lobby's religious beliefs included the provision of health insurance and Justice Kennedy specifically asking about why the company could not simply pay any fines or taxes. 

220px-Mother_Jones_1902-11-04
Mary Harris "Mother" Jones via

According to an article by Molly Redden in Mother Jones magazine today, Hobby Lobby does not exercise its religion in quite the same way when in comes to its 401(K) retirement plans.  Based on corporate disclosures, three-quarters of the funds (73 million) have holdings that "clashed" with the owners of Hobby Lobby's stated religious principles.  The corporation apparently did not avail itself of the faith-based investing that is often available. 

Under First Amendment free exercise doctrine as well as the Religious Freedom Restoration Act (RFRA), questioning sincerity is difficult and adherents to a religious belief need not be consistent in their beliefs.  Seemingly the only case in which a "contraceptive mandate" challenge suffered on these grounds is Eden Foods v. Sebelius. 

Nevertheless, this scenario could have served as the basis of an interesting hypothetical regarding the "substantial burden" on its religious beliefs the company and owners claim.

 

April 1, 2014 in Abortion, Current Affairs, First Amendment, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Disparate Views of the Secret Service: The Court and the Realities?

In the oral arguments last week in Wood v. Moss and the Court's 2012 decision in Reichle v. Howards, the Secret Service was center stage.  Recall that both cases involve qualified immunity for Secret Service agents against constitutional claims and raise the specter that the individual agents acted inappropriately.  And in both cases, there is some valorization of the agents and their difficult task of protecting the President (in Wood) and the Vice-President (in Reichle). 

800px-Robert_Warwick_in_Secret_Service

Arguing for the United States Government in Wood v. Moss, the Deputy Solicitor General expressed the fear that not upholding qualified immunity would lead to a "demoralization of the service leaning in the direction of being overly careful and therefore risking the life of the President" and that allowing discovery is "exactly the nightmare scenario that the Secret Service fears" including "
discovery into what the agents were thinking" and "what the Secret Service's policies were." 

And in Reichle, Justice Ginsburg concurring in the unanimous opinion, discusses the difficult facts in the case as well as deference to the agents' role:

Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge. Whatever the views of Secret Service Agents Reichle and Doyle on the administration’s policies in Iraq, they were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security. Retaliatory animus cannot be inferred from the assessment they made in that regard.

But one wonders how positive views of the Secret Service suffer given recurrent scandals involving the Secret Service.  As the United States Supreme Court was considering Reichle, there was the scandal in Colombia involving more than a dozen agents, but a later Homeland Security report (official synposis here) found that there was not "widespread sexual misconduct."  Most recently, at least one agent assigned to protect the President was reportedly "found drunk and passed out in a hotel hallway."  This latest scandal was reportedly not good news for the Secret Service's first woman director who has "tried to implement reforms."  One former Secret Service agent writes in a WaPo op-ed that the problem is not bad agents but bad leadership." 

But whether attributed to bad leadership or what might be called "bad apples," should these revelations about the bad judgments of secret service agents influence the Court's own judgments?  Doctrines such as qualified immunity and strict pleading requirements that prevent discovery serve to protect Secret Service agents from their "nightmares" (as the Deputy Solicitor General phrased it), but might they also insulate the Secret Service from responsibility for the nightmares they cause others. 

[image via]

April 1, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, News, State Secrets | Permalink | Comments (1) | TrackBack (0)

Friday, March 28, 2014

DC Circuit Upholds Meat Labeling Requirement Against First Amendment Challenge

In its relatively brief but potentially exceedingly important opinion in American Meat Institute v. United States Dep't of Agriculture, the District of Columbia Circuit upheld a meat labeling rule requiring increased specificity.  As the court explained, the 2013 rule regarding country of origin newly required the "production step," so that

instead of saying, “Product of the United States,” a label for Category A meat will now read, “Born, Raised, and Slaughtered in the United States.” Similarly, Category B meat might now have to be labeled, “Born in X, Raised and Slaughtered in the United States,” and Category C meat “Born and Raised in X, Slaughtered in the United States.”

511px-Cowicon.svgThe meat producers argued that the new rule exceeded statutory authority and that it violated the First Amendment.  They sought a preliminary injunction which the district judge denied. 

The DC Circuit's First Amendment analysis rejects the meat producers' arguments that Zauderer v. Office of Disciplinary Counsel (1985) should not be dispositive.  The panel opinion noted that Zauderer held that  mandated disclosures do not violate an advertiser’s First Amendment rights,  “as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.”  But it rejected the meat producers' argument that the DC Circuit's opinion in Reynolds v. FDA held that Zauderer should be "applied only to disclosure mandates aimed at correcting deception" (emphasis in opinion).  The court noted that this interpretation also avoided a disagreement with other circuits, and also noted that "reasonable judges" could read Reynolds as so limiting Zauderer and thus suggested that the

full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information.

However, the panel provided its conclusion that other government interests were adequately served by the mandated labeling, including enabling

a consumer to apply patriotic or protectionist criteria in the choice of meat. And it enables one who believes that United States practices and regulation are better at assuring food safety than those of other countries, or indeed the reverse, to act on that premise.

Certainly the labeling of meat is not the other type of labeling currently being litigated in the courts as the opinion itself discusses.  (I've elsewhere argued that mandating clothes be labeled sweat-free or not should survive a First Amendment challenge).  The DC Circuit might do well to take the suggest for en banc consideration given the issue's likelihood of recurring.

[image via]

UPDATE: The DC Circuit has granted en banc review.

UPDATE: EN BANC OPINION here

March 28, 2014 in First Amendment, Speech | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 26, 2014

Oral Arguments in Wood v. Moss: The Complaint by the Anti-Bush Protestors

At the heart of this case is a very simple complaint: During a campaign stop by then-President Bush in Portland, Oregon, the Secret Service treated anti-Bush protestors differently from pro-Bush demonstrators, relocating the former while allowing the latter to remain. 

But the complaint raises a host of legal issues that ricocheted through the oral arguments {transcript} in Wood v. Moss at the United States Supreme Court today.

Portland_No_war_pdx
image from later protest in Portland via

The first issue is whether the complaint satisfied Ashcroft v. Iqbal, with Chief Justice Roberts specifically referring to the opinion during the oral argument of Steven Wilker, representing the Respondents, who were the protestors:

In Iqbal, and just quoting here from page 681, the Court goes on to consider the factual allegations in the complaint to determine if they plausibly suggest an entitlement, and they go on to say, but given more likely explanations, they do not plausibly establish this purpose.

Roberts returned to Iqbal, stating that the Government's alternative explanation in its motion to dismiss the complaint "doesn't have to be so compelling.":

It simply has to be more likely, is the quote from Iqbal on 681, and it has to be an obvious alternative explanation. And that's enough, no matter what you've alleged.

There was certainly some concern expressed that without Iqbal, the district judge might have fewer "weapons" available to curb discovery, but there was also not uniform preoccupation with Iqbal, with Justice Breyer posing a hypothetical about discovery and saying "Forget Iqbal for the moment."

Yet another procedural barrier discussed by the Court is the doctrine of qualified immunity, requiring that the constitutional infringement be "clearly established" at the time it occurs in order to hold government agents accountable. The Government's best case in this regard is Reichle v. Howards, which counsel mentioned repeatedly, decided in 2012, which held that Secret Service agents had qualified immunity and rejected the claim of retaliatory arrest for a man at a Dick Cheney shopping mall appearance.

But there seemed to be an "aha" moment for Justice Scalia - - - who had previously accused the attorney for the government, Ian Gershengorn, Deputy Solicitor General, for not sufficiently raising such arguments - - - during Wilker's argument.  Scalia asked " how can it be  clearly established if we have never held that there is a Bivens cause of action for a First Amendment violation? We've never held that, have we? How can you possibly say that the violation here is clearly established."

MR. WILKER: Well, I think it's different to say whether or not there is a remedy for the violation as to whether the violation was clearly established.

JUSTICE SCALIA: Well, okay.

MR. WILKER: The violation was clearly established. Whether or not there is a remedy for that violation under Bivens - - -

JUSTICE SCALIA: That's a good point.

MR. WILKER:  - - - is a different question.

JUSTICE SCALIA: That's a good point.

Yet Scalia might not be convinced that there would actually be a First Amendment violation, given his repeated references to the Fourth Amendment in which motivation should not be considered. 

At several points, the oral argument did focus on the question of viewpoint discrimination under the First Amendment, such as in the Deputy Solicitor's exchange with the Justice Ginsburg:

JUSTICE GINSBURG: Mr. Gershengorn, suppose it's originally set up by the police, the motorcade is coming down, each side has equal access. Then the Secret Service comes along and said: Clear the anti­Bush demonstrators. Suppose that, that ­­ those were the facts. Would there be a valid Bivens claim?

MR. GERSHENGORN: Your Honor, the question would depend on whether there was a valid security rationale. I think in the context of a motorcade ­­

JUSTICE GINSBURG: The rationale is it's more likely that the people who are against the President would be harmful to him than the people who are for him.

Prätorianer
Roman Praetorian Guard via

Yet whether this case will be decided on the First Amendment issues - - - or more properly, whether the Court will decide that the First Amendment issue can be decided by the lower courts in spite of Iqbal and the qualified immunity doctrine - - - is balanced between two concerns expressed in the oral arguments. 

On the one hand, there is a concern for ability of the Secret Service to make security decisions to protect the President without being subject to second-guessing by possible plaintiffs and the courts themselves. 

On the other hand, there is the concern that there might develop a "Praetorian Guard" - - - as Justice Breyer stated - - - and that the trampling of First Amendment rights on the basis of viewpoint might be accepted.

As one of the cases on this Term's heavy First Amendment docket, its importance may be overshadowed, but it should not be underestimated.

March 26, 2014 in First Amendment, Fourth Amendment, Interpretation, Oral Argument Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Upholds San Francisco's Gun Regulations

Affirming the federal district judge, a panel of the Ninth Circuit in its opinion in Jackson v. City of San Francisco found that San Francisco's gun regulations likely survived the Second Amendment challenges and therefore the denial of the preliminary injunction was proper.

At issue were two San Francisco gun-related regulations: one that requires handguns to be stored in a locked container at home or disabled with a trigger lock when not carried on the person and the other that prohibits the sale of hollow-point ammunition within San Francisco.

Handgun-231696_640The panel, as other courts have done, derived its framework from District of Columbia v. Heller, first asking whether the challenged regulations burden conduct protected by the Second Amendment and then applying the "appropriate" level of scrutiny.  Because Heller (and McDonald v.Chicago which incorporated the Second Amendment against the states) left open this second inquiry, the panel - - - again following other circuits - - -then analyzed  ‘how close the law comes to the core of the Second Amendment right’ and ‘the severity of the law’s burden on the right.’   The panel analogized to First Amendment principles and noted that "firearm regulations which leave open alternative channels for self-defense are less likely to place a severe burden on the Second Amendment right than those which do not." The panel applied intermediate scrutiny to the regulations.

The opinion distinguished the San Francisco gun regulation requiring safety measures from those seemingly similar District of Columbia safety measures the United States Supreme Court found unconstitutional in Heller:

Section 4512 does not impose the sort of severe burden imposed by the handgun ban at issue in Heller that rendered it unconstitutional. Unlike the challenged regulation in Heller, section 4512 does not substantially prevent law-abiding citizens from using firearms to defend themselves in the home. Rather, section 4512 regulates how San Franciscans must store their handguns when not carrying them on their persons. This indirectly burdens the ability to use a handgun, because it requires retrieving a weapon from a locked safe or removing a trigger lock. But because it burdens only the “manner in which persons may exercise their Second Amendment rights,” the regulation more closely resembles a content-neutral speech restriction that regulates only the time, place, or manner of speech. The record indicates that a modern gun safe may be opened quickly. Thus, even when a handgun is secured, it may be readily accessed in case of an emergency. Further, section 4512 leaves open alternative channels for self-defense in the home, because San Franciscans are not required to secure their handguns while carrying them on their person. Provided San Franciscans comply with the storage requirements, they are free to use handguns to defend their home while carrying them on their person.

[citations omitted]

As to the sale of hollow point bullets, the panel found that there was standing to challenge the restriction and that such ammunition was protected by the Second Amendment.  But it again applied intermediate scrutiny and found the regulation survived.  It reasoned that the city's regulation "imposed only modest burdens on the Second Amendment right" given "the availability of alternative means for procuring hollow-point ammunition." 

The opinion is firmly rooted in current doctrine, even as that doctrine is in disarray.  Earlier this month the Delaware Supreme Court held a gun restriction in public housing unconstitutional; earlier this year a district judge in Chicago held that city's gun regulations unconstitutional.   The United States Supreme Court this Term has denied certiorari to several petitions seeking review of lower court cases including Fifth Circuit cases upholding a ban of sales of guns to those under 21.

Borrowing from First Amendment doctrine seems especially problematic in these cases, but understandable given the infantile state of the doctrine.

 [image via]

 

March 26, 2014 in First Amendment, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 25, 2014

Justice Kennedy and the Hobby Lobby Contraceptive Mandate Oral Arguments: Is it Simply Administrative Law?

The arguments in the consolidated cases of  Hobby Lobby and Conestoga Wood Specialities v. Sebelius displayed Justices sharply divided on the issues as we discussed.  Whether Justice Kennedy will be the deciding vote in the cases is sure to be the subject of much speculation.  What, if anything, might be derived from his expressions at oral argument?  

He began, relatively early in the oral argument, by making space for Paul Clement to elaborate on his "framework" and by posing a question about RFRA:

JUSTICE KENNEDY: You were beginning by giving us a framework for your argument. Do I think of this as a statutory case? Of course, the First Amendment is on the stage at some point here, but I take it you can prevail just on the question of statutory interpretation, and if that is so, are there any statutory rules that work in your favor, that is to say, avoiding a constitutional question or how do we think about this case, primarily as a statutory case?

Justice Kagan thereafter pointed out that RFRA was a "special kind of statute" that "specifically refers back to a "body of constitutional law."

Justice Kennedy also asked about the relative substantial burden of paying any fines: "Let's assume that the cost of providing insurance is roughly equivalent to the $2,000 penalty. How ­­ how is the employer hurt? He can just raise the wages."

Clement eventually answered that “If they take away the health care insurance, they are going to have to increase the wages to make up for that. And they're going to have to pay the $2,000 penalty on top of it, plus they're going to have to violate their ­­ their own interest which is, we actually ­­ we believe it's important to provide our employees with qualified health care.

JUSTICE KENNEDY: Okay, the last is important. But just assume hypothetically that it's a wash, that the employer would be in about the same position if he paid the penalty and the employer ­­ pardon me, an employee went out and got the insurance and that the employee's wages were raised slightly and then it's ­­ and that it's a wash so far as the employer are concerned, other than the employer's religious objection, but just on the financial standpoint. Can we assume that as a hypothetical. Then what would your case be?

MR. CLEMENT: I think my case would be that in that case the government might be able to sort of support itself on the compelling interest. I think there would still be a substantial burden on their exercise. But again, this all turns on issues that the government hasn't put in issue.

Toward the end of Clement's time, Kennedy posed a different type of query:

JUSTICE KENNEDY: Just before your time starts to go too fast, how would you suggest that we think about the position and the rights of the ­­ of the employees? And you can have hypotheticals about the employer makes them ­­ wants to make them wear burkas and so forth. That's not in this case. 

But in ­­ in a way, the employees are in a position where the government, through its healthcare plans, is ­­ is, under your view, is ­­ is allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious ­­ religious beliefs of the employer. Does the religious beliefs just trump? Is that the way it works?

In Kennedy's extensive colloquy with Solicitor General Verrilli, the subject veered from compelling governmental interest back to the status of RFRA:

JUSTICE KENNEDY:  Is it your position that part of the compelling interest here is that you have to protect the integrity ­­ the operational integrity of the whole Act?

GENERAL VERRILLI: It is part of our argument, absolutely. And ­­ but it ­­ but there is in addition to that, much more ­­

JUSTICE KENNEDY: Does that mean the constitutionality of the whole Act has to be examined before we accept your view?

GENERAL VERRILLI: Well, I think it has been examined, Your Honor, is my recollection.

(Laughter.)

GENERAL VERRILLI: But ­­ but with respect to ­­ but with respect to the ­­ there is a particularized interest here in that what we are talking about is a question of whether 14,000 employees and their families get access to this contraceptive coverage.

JUSTICE KENNEDY: You ­­ you have exempted a whole class of corporations and you've done so under your view not because of RFRA.

GENERAL VERRILLI: So let me ­­ let me go to that ­­

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court.

But when we have a First Amendment issue of ­­ of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

 Kennedy later continued on the issue of compelling governmental interest:

JUSTICE KENNEDY: I still don't understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA.

GENERAL VERRILLI: I don't think ­­

JUSTICE KENNEDY: Then it must have been because the health care coverage was not that important.

GENERAL VERRILLI: It didn't grant an exemption to any nonreligious organizations, Justice Kennedy. It granted an exemption to churches, and that was it. . . .

And later, Justice Kennedy, whose opinions on abortion are certainly complex, asked Verrilli what seemed a version of a particular "slippery slope" that had not been extensively considered:

JUSTICE KENNEDY: Under your view, a profit corporation could be forced ­­ in principle, there are some statutes on the books now which would prevent it, but ­­ could be forced in principle to pay for abortions.

GENERAL VERRILLI: No. I think, as you said, the law now ­­ the law now is to the contrary.

JUSTICE KENNEDY: But your reasoning would permit that.

GENERAL VERRILLI: Well, I think that ­­ you know, I don't think that that's ­­ I think it would depend on the law and it would depend on the entity.

 Finally, during Verrilli's argument, Justice Kennedy expressed interest in a hypothetical posetd by Justice Alito about a law requiring humane treatment of animals and therefore prohibiting kosher and halal slaughter.

Justice Kennedy asked no questions during Clement's rebuttal, but Clement gave the last word to Kennedy:

 . . . . If I could have just one second more to say that the agency point that Justice Kennedy has pointed to is tremendously important, because Congress spoke, it spoke in RFRA. Here the agency has decided that it's going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear.

Certainly Clement's articulation is simplistic, but it could satisfy Kennedy's initial search for some statutory construction principles that might make the answer to the divisive issues also seem simple.

[image: Justice Kennedy by Donkey Hotey via]

March 25, 2014 in Abortion, Courts and Judging, First Amendment, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Supreme Court Hears Oral Arguments in Hobby Lobby and Conestoga Wood Specialties on RFRA and the "Contraceptive Mandate"

Should corporations (or their owner/shareholders) be able to interpose a religious objection to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? 

Simplified, that's the question at the heart of the oral arguments today in the consolidated cases of Hobby Lobby v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius in which the Court granted certiorari in November.  The legal issues are complex (our primer is here and another here), but given the basic conflict, it's no wonder the case has attracted so much attention. Another good overview is Lyle Denniston's preview of the arguments for SCOTUSblog.

Recall that the Tenth Circuit's divided en banc opinion in Hobby Lobby essentially split 5-3 over the issue of whether a for-profit secular corporation has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.

Recall also that the Third Circuit's divided panel opinion in Conestoga Woods rejected the contention that the corporation could raise a claim under RFRA, either as a corporation possessing free exercise of religion rights or under a "pass through" theory allowing the beliefs of the owners to pass to the corporate form.

Moreover, Hobby Lobby and Conestoga Woods are not the only two opinions on these issues.  A digest of some previous circuit court cases and some discussion of the controversy is here; the divided Seventh Circuit opinion is discussed here; and the ACLU has a helpful running tab on all the cases here. So, the Court's ultimate conclusion will impact a number of cases.

Today's 90 minute oral argument {transcript} in the consolidated cases began with Paul Clement representing the "private parties," Hobby Lobby and Conestoga Wood and then Solicitor General Donald Verrilli  representing the federal government, including Kathleen Sebelius as Secretary of Health and Human Services.  Not surprisingly, the questions to Clement largely came from Justices Kagan, Sotomayor, and Ginsburg, and the questions to Verrilli came from Justices Alito and Scalia, as well as Chief Justice Roberts.   Also not surprisingly, the arguments were peppered with slippery slopes, other analogies, questions of Congressional intent in passing RFRA, RFRA's relationship with First Amendment doctrine, and the relevance of the corporate form. 

The question as to the cost of not complying with the mandate (part of the substantial burden on the corporations under RFRA) was the subject of this rather interesting exchange during Paul Clement's argument:

JUSTICE KAGAN:  . . . .

And so the question is, why is there a substantial burden at all?

MR. CLEMENT: Well, just to be clear, we were talking about the same thing. So the option, the choice, is between paying a $475 million a year penalty and a $26 million a year penalty.  That's what Hobby Lobby faces.  So $2,000 per person - - -  ­­

JUSTICE KAGAN: No, between paying $2,000 per employee per year if Hobby Lobby does not provide ­­- - -

MR. CLEMENT: That's $26 million.

JUSTICE KAGAN: You know, Hobby Lobby is paying something right now for the - - -­­ for the coverage. It's less than what Hobby Lobby is paying for the coverage. There are employers all over the United States that are doing this voluntarily because they think that it's less.

CHIEF JUSTICE ROBERTS: I thought - - -­­ I thought that part of the religious commitment of the owners was to provide health care for its employees.

MR. CLEMENT: That is true, Mr. Chief Justice. It is also true that this ­­- - -

JUSTICE SOTOMAYOR: Well, if they want to do that, they can just pay a greater salary and let the employees go in on the exchange.

MR. CLEMENT: Exactly, which is, by the way, why comparing the $2,000 penalty to the cost of the health care is a false - - - ­­ it's a false comparison.

JUSTICE SOTOMAYOR: It's not called a penalty. It's called a tax. And it's calibrated ­­ - - - and it's calibrated ­­

CHIEF JUSTICE ROBERTS: She's right about that.

 (Laughter.)

 The laughter arises from Chief Justice Roberts' decision in NFIB v. Sebelius that the ACA was constitutional under Congress' power to tax, but it is worth noting that Roberts jumped in to assert the corporation's exercise of religion as including the provision of health insurance.  Justices Ginsburg and Kagan later come back to this point:

JUSTICE GINSBURG: There was a point made earlier, and I think you didn't mean to say this, that provision of health care is not part of their religious belief. Covering their employees for health care, that is not a religious tenet, right?

MR. CLEMENT: No, it actually is.  Again, it hasn't been the principal theory been litigated. But see, if you complaints and you go back to our briefs, you know, it's part of the religious beliefs that both the Hahns and the Greens have. They think it's actually important ­­- - -

JUSTICE KAGAN: But, Mr. Clement, you're not saying, are you, that their religious beliefs mandate them to provide health care? I thought that you were never making that claim.

MR. CLEMENT: I didn't have to make that claim in the course of this litigation. What I'm pointing out, though, is for purposes of the substantial burden analysis, it is perfectly appropriate to take into account that the 2,000 ­­ the $26 million in fines they would pay would not be the only thing that they would lose out if they are on that horn of the dilemma. They would also lose out all the additional wages they would have to pay, and they would be in this position of not offering health care, which is something they believe is important for their religion as well.

JUSTICE KAGAN: You know, I'm sure they seem like very good employers. And I'm sure they want to be good employers. But again, that's a different thing than saying that their religious beliefs mandate them to provide health insurance . . . .

If the "substantial burden" under RFRA is the most difficult element that the corporations to meet, then the strict scrutiny test applicable to any substantial burden is surely the government's most difficult task.  The questioning noted that the "least restrictive means" test in RFRA was clearly more difficult to meet than even the pre-Smith cases that RFRA explicitly sought to restore - - - and there did not seem to be even a glimmer that RFRA should be held unconstitutional (which would, of course, require a departure from O Centro Espirita Beneficiente Uniao Do Vegetal v. Gonzales). 

 Justice Breyer, asking his first question of the argument, requested that Verrilli provide a "precise answer" to the "least restrictive" argument that the government should simply pay for the contraceptive coverage.  Verrilli's argued that this suggestion by the corporations was not properly before the Court, but even if it was, that even the accommodation would be subject to a RFRA challenge.   Justice Alito suggested that Clement be asked about whether this would hapen, and indeed Clement was asked (by Justice Sotomayor).  Clement's reply:

We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that. But it's important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that.

 Whether Justice Kennedy will be the deciding vote in this case is certain to be subject to much speculation and his questions will be closely read; our extended discussion is here.  But without question, the Justices seem sharply divided.

 

March 25, 2014 in Courts and Judging, Current Affairs, First Amendment, Gender, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Supreme Court Declines Review of Arbitration Open Access Case

Today the United States Supreme Court denied review of Strine v. Delaware Coalition, a case in which a Third Circuit panel held that arbitration proceedings cannot be confidential under the First Amendment. 

As we previously discussed, the judges in the Third Circuit were quite divided; there were three opinions in the case.  But the majority conclusion requiring these high stakes commercial arbitrations allowed by Delaware law and performed by Delaware judges to not remain secret seems the correct one.  Especially if the First Amendment access to "trials" should continue to have substantive meaning.

450px-Le_secret
"le secret" via

 

It's always dangerous to speculate why the Supreme Court declines to enter the fray, but  it's worth noting that Delaware's secrecy scheme protecting commercial arbitration is rather unique.

March 24, 2014 in Courts and Judging, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 20, 2014

Eleventh Circuit Finds Private Property Loitering Buffer Zone Violates First Amendment

In its relatively brief opinion in today in Bell v. City of Winter Park, a panel of the Eleventh Circuit found the portion of an ordinance allowing a 50 foot buffer zone around a private residence related to loitering violated the First Amendment. 

The ordinance provision, amending § 62-77, provided:

A person regularly residing in a ‘dwelling unit’, as that term is defined in Section 62-79, may post a ‘no loitering’ sign on the property of such residence in which the person regularly resides, and an officer of the City may enforce this section against any person remaining in a public area, including a park, sidewalk, street, public right-of-way, after the sign is posted, who loiters, stands, sits, or lies before or about the dwelling unit on which property the ‘no loitering’ sign is posted, or remains on public property within a buffer area as defined in Section 62-79, of fifty (50) feet from the property line of such residence.

The opinion by Judge Gerald Tjoflat (who has been a circuit court judge since 1975) reasoned that while the provision may look content neutral, it allowed private persons to prohibit speech in public fora for content or viewpoint reasons. 

800px-Jack_Kerouac_House_-_Winter_Park_Florida
Jack Kerouac's House, near [in] Winter Park, Florida via

Further, there was "immense discretion." 

The amount of discretion § 62-77 provides is alarming. Private citizens are permitted to have the City regulate speech on traditional public fora for any reason. Additionally, § 62-77 provides no standards for enforcement, leaving City officers free to enforce the prohibition on the basis of the content or viewpoint of an individual’s speech. We therefore hold that § 62-77 is unconstitutional.

While reversing the district judge on this issue, the court did affirm the judge and uphold the constitutionality of another subsection of the ordinance, prohibiting "any person or persons to picket, protest or conduct any picketing or protesting activity within a buffer area of 50 feet from the property line of any dwelling unit in the City of Winter Park."  As the Eleventh Circuit panel correctly noted, this provision of the ordinance was "nearly on all fours" with Frisby v. Schultz, (1988). The Court in Frisby valued the "well-being, tranquility, and privacy of the home” and construed the law as a valid time, place, and manner regulation.

The court's distinction between "loitering" and "picketing" is a careful and noteworthy one.

March 20, 2014 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (2) | TrackBack (0)

Minnesota Supreme Court Reverses Conviction for Advising or Encouraging Suicide

The Minnesota Supreme Court yesterday reversed a conviction for advising or encouraging another in committing suicide, ruling that the conviction violated the First Amendment.  At the same time, the court remanded the case to determine whether the defendant "assisted" suicides in violation of Minnesota law.

The case, Minnesota v. Melchert-Dinkel, involved the defendant's prosecution and conviction for violation of Minnesota Stat. Sec. 609.215, which makes it illegal to "intentionally advise[], encourage[], or assist[] another in taking the other's own life."  Melchert-Dinkel, posing as a depressed and suicidal young female nurse, responded to posts on web-sites related to suicide and encouraged two individuals, one in England and one in Canada, to take their own lives.  Melchert-Dinkel gained the trust of the victims and then urged them each to hang themselves, falsely claiming that he (as she) would also commit suicide.

Melchert-Dinkel was charged with violating Minnesota's ban on advising or encouraging suicide.  The trial court convicted him, specifically finding that he "intentionally advised and encouraged" both victims to take their own lives, and concluded that Melchert-Dinkel's speech was not protected by the First Amendment.

The Minnesota Supreme Court disagreed.  The state high court said that the ban swept too broadly to meet strict scrutiny.  In particular, "advise" and "encourage" could include "speech that is more tangential to the act of suicide and the State's compelling interest in preserving life," even "general discussions of suicide with specific individuals or groups."

The court rejected the state's argument that Melchert-Dinkel's speech was unprotected because it was "integral to criminal conduct."  The court noted that suicide is no longer illegal in Minnesota, Canada, or the UK.  With no underlying criminal conduct, the speech couldn't be integral to it.

The court also rejected the state's argument that Melchert-Dinkel's speech was unprotected incitement.  That's because there was no underlying lawless action, imminent or not.

Finally, the court rejected the state's argument that Melchert-Dinkel's speech was unprotected "deceit, fraud, and lies."  The court (citing Alvarez) said that there was no such exception to the First Amendment.

At the same time, the court ruled that the portion of the statute that banned "assisting" another in taking his or her own life survived.  The court remanded the case to the trial court to determine whether Melchert-Dinkel's actions constituted "assisting" in the suicides.

March 20, 2014 in Cases and Case Materials, First Amendment, Fundamental Rights, News, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014

Daily Read: Hurley v. Irish-American Gay, Lesbian, and Bisexual Group

Writing for a unanimous Court in 1995, Justice Souter in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group held that the First Amendment rights of the South Boston Allied War Veterans Council (and its individual member John "Wacko" Hurley) allowed the exclusion of the Irish-American Gay, Lesbian, and Bisexual Group (GLIB) from the St. Patrick's Day Parade, despite the Massachusetts' public accommodation law prohibiting discrimination on the basis of sexual orientation.

Rainbow-shamrockJustice Souter famously opined that although the parade might seem not to have a particularized message that would be inconsistent with GLIB, its message was as particularized as "the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll."

Some St. Patrick's Day parades continue to exclude identified sexual minority groups, including the Boston one - - - in which Boston's mayor will reportedly not participate this year, and the New York City one - - - in which NYC's mayor will likewise reportedly not participate this year.  Other St. Patrick's Day parades do not ban LGBT groups.

March 17, 2014 in Association, First Amendment, Sexual Orientation, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Monday, March 10, 2014

Daily Video: Edward Snowden Speaks

"I took an oath to support the Constitution, and I felt the Constitution was violated on a massive scale," Edward Snowden said in his video conference delivered from his asylum in Russia to the South By Southwest (sxsw) Interactive Festival. 

Here's the video:

 

 Some good analysis at LATimes.  [to be updated]

March 10, 2014 in Current Affairs, First Amendment, Fourth Amendment, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 5, 2014

Government Dismisses Bulk of Indictment Against Barrett Brown

In the controversial indictment by federal government of Barrett Brown (pictured below), one of the most startling First Amendment issues was the protection of "speech" consisting of hyper-linking.

Brown described himself in his court papers as "a thirty-two year old American satirist, author and journalist,"  who "founded Project PM, a collaborative web publication whose contributors conduct research using publically available materials such as information obtained from leakers and hackers" and that "came to focus on the private military and intelligence contracting industry. This transition came amidst a federal crackdown on leaks escaping Washington and an attempt to prosecute whistleblowers."  The indictment focused on the posting of a hyperlink to files from a third party, Stratfor, Strategic Forecasting, Inc., a "global intelligence" company.

Brown's  motion to dismiss the indictment included First Amendment arguments as well as arguments that his conduct did not satisfy the elements of the crime. 

Today the United States Government moved to dismiss  its own indictment, counts 1, and 3-12 - - - all the counts reliant on the hyper-linking.

220px-Barrett_Brown_2007

This leaves count 2 of the indictment: possession of stolen credit card account numbers and their CVVs (Card Verification Values), a count that Brown's own Motion to Dismiss similarly did not address.

This also leaves two other indictments against Brown. 

[image via]

 

March 5, 2014 in Criminal Procedure, First Amendment, Speech, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 4, 2014

Sixth Circuit Upholds Ohio's Dangerous Animals Act

In its  opinion in Wilkins v. Daniels, a panel of the Sixth Circuit affirmed the district judge and affirmed the constitutionality of the Ohio Dangerous Wild Animals and Restricted Snakes Act, which became effective January 1, 2014.  The Act prohibits possession of dangerous wild animals - - - including tigers, lions, bears, alligators, and pythons 12 feet or longer - - - without a permit.  The permit requirements include the implantation of a microchip under the animal's skin.  The Act includes an exemption for individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA).

The exemption in the Act's scheme and the "chipping" requirement give rise to the constitutional challenges.

Circus_Lion_Tamer
First, and perhaps most creatively, the challengers argued that the exemption for "individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA)" constituted compelled speech prohibited by the First Amendment.  This compelled speech argument had two "distinct but interrelated" parts:  a compelled association claim because the Act "forces" them to join either the AZA or ZAA and a compelled speech claim because the Act requires them to "subsidize the speech of their purely private political and ideological rivals,” the AZA or ZAA.

The panel briefly and accurately set out the doctrine and classic First Amendment cases, but the court's analysis is digestable to its conclusion that there was no compulsion, by association or subsidy: "There are fifteen ways appellants can comply with the Act: the permitting requirement and fourteen exemptions."  As the panel concluded, "[m]ere unwillingness to conform their conduct to the permitting requirements or the other thirteen exemptions does not mean that the Act compels appellants to join the AZA or ZAA."

Second, the challengers argued that microchipping requirement violated the Takings Clause.  The panel found the challenge not ripe because there was no pursuit of state compensation.  But, on the merits, the panel found that there was not a taking, stressing the physical taking (rather than the regulatory taking) aspect that seemed to be the central argument.  The court analogized to other types of "property," accepting the State's argument that if the Act’s microchipping requirement to be ruled a taking, “laws requiring license plates on cars, warning labels on packaging, lighting on boats, handrails in apartment buildings, and ramps leading to restaurants” would be suspect.

The court rejected these constitutional challenges that, while innovative, seemed to have little support in the doctrine.  The arguments also had little political appeal - - - the court notes in its opinion that the Ohio Act was prompted by an incident in which "an Ohio man released over fifty exotic animals before committing suicide."

 [image via]

March 4, 2014 in Association, Cases and Case Materials, Fifth Amendment, First Amendment, Opinion Analysis, Speech, Takings Clause | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

Court Grants Certiorari in Bearded Prisoner Religious Freedom Case

The United States Supreme Court today granted certiorari in Holt [Muhammad] v. Hobbs, later issuing a clarifying order:

The petition for a writ of certiorari is granted limited to the following question: “whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.”

455px-Meister_von_San_Vitale_in_Ravenna_013Recall that the Religious Land Use and Institutionalized Persons Act - - - RLUIPA - - - essentially reinstates the "strict scrutiny" standard of the pre-Smith  [Employment Div. Dep't of Human Resources v. Smith] cases to a more limited set of circumstances than Congress did with RFRA, held unconstitutional as applied to the states as exceeding §5 of the Fourteenth Amendment in City of Boerne v. Flores.   RLUIPA arguably gives prisoners more free exercise of religion protection than the general public, though in cases,  prison security often provides a sufficient compelling governmental interest that is being further by the least restrictive means and thus overcome a prisoner's religious freedom.

Many RLUIPA claims concern grooming as I discuss in Dressing Constitutionally.  For Muslim male inmates, the question of facial hair has been prominent.  While some circuits have rejected RLUIPA claims, crediting the administrative costs of special scissors necessary to not completely shave prisoners, other courts have upheld RLUIPA claims, finding that prison officials did not satisfy the compelling government standard achieved by the least restrictive means.

The Eighth Circuit's opinion in Holt v. Hobbs is typically cursory at three pages.  Here's the court's analysis:

we conclude that defendants met their burden under RLUIPA of establishing that ADC’s grooming policy was the least restrictive means of furthering a compelling penological interest, see Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008) (absent substantial evidence in record indicating that response of prison officials to security concerns is exaggerated, courts should ordinarily defer to their expert judgment in such matters), notwithstanding Mr. Holt’s citation to cases indicating that prisons in other jurisdictions have been able to meet their security needs while allowing inmates to maintain facial hair, see id. at 905 (although prison policies from other jurisdictions provide some evidence as to feasibility of implementing less restrictive means of achieving prison safety and security, it does not outweigh deference owed to expert judgment of prison officials who are more familiar with their own institutions).

The court's reliance on Fegans v. Norris, involving the Arkansas Department of Corrections restriction on hair length for male (but not female) inmates, is not surprising.  Fegans  is a particularly deferential decision by the Eighth Circuit - - - it almost seems as if the court applied rational basis rather than the strict scrutiny required by RLUIPA.

The Court's grant of certiorari in Holt v. Hobbs might bring some clarity to the religious freedom for prisoners in the grooming context.

[image via]

March 3, 2014 in Congressional Authority, Federalism, First Amendment, Religion, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Sunday, March 2, 2014

Fisk and Chemerinsky on the First Amendment and Union Fair Share

Catherine Fisk and Erwin Chemerinsky (both of Cal Irvine) published an American Constitution Society Issue Brief last week that boldly sets out the implications of Harris v. Quinn, on public employee fair-share fees, and blows a hole (or three) in the Court's First Amendment jurisprudence as it continues its attacks on unions.  We posted on Harris here and here; we posted on Knox most recently here.

The Brief, titled Unequal Treatment? The Speech and Association Rights of Employees: Implications of Knox and Harris, pulls no punches in setting out the implications of those cases, starting with the doctrinal time-bombs that Justice Alito planted in Knox, which fed the petitioners' arguments in Harris:

In colloquial terms, the petitioners in Harris seek to have the Supreme Court declare that, as a matter of the First Amendment, all government employment must be on a "right-to-work" basis.

The petitioners' argument in Harris went beyond simply the payment of the employees' fair share of the cost of contract negotiation and administration.  They argued that bargaining on behalf of employees is petitioning the government and "political in nature" even when it addresses wages, and it violates the First Amendment to require dissenting employees to support the union's bargaining.  As the Justices recognized at oral argument, the logical extension of the petitioners' argument is that the First Amendment invalidates any statute allowing employees to bargain collectively on the basis of exclusive representation.

Fisk and Chemerinsky also carefully describe how the Court's approach in Knox, and the petitioners' arguments in Harris, cut against the Court's approaches to compelled speech, associational rights, and speech of government employees in other areas. 

The conclusion: The implications are serious, and Court's approach to fair share union fees is just the opposite of its approach in other cases, suggesting that the Court is just baldly beating up on unions.

March 2, 2014 in Association, Cases and Case Materials, First Amendment, Fundamental Rights, News, Speech | Permalink | Comments (1) | TrackBack (0)