Wednesday, November 6, 2013

Oral Arguments in Town of Greece v Galloway: Can the Town Council Ask Those Attending to Bow Their Heads and Pray?

The Court today heard oral arguments in Town of Greece v. Galloway regarding a New York town's practice of opening its council meetings with prayers, the large majority of which have been Christian. 

 

Head of Apollo
Head of Apollo,
Attributed to Kephistodotos the Elder
(active early 4th century B.C.)
Recall that the unanimous panel opinion of the Second Circuit held that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity" and violated the First Amendment's Establishment Clause.  The case has attracted much attention - - - a great PBS  video is here - - -  and in a move that surprised some, the Obama Administration filed a brief in support of the town.

 

Doctrinally, the arguments centered on an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature's employment of a chaplain to lead a legislative prayer.  The majority opinion, authored by Chief Justice Burger, was seemingly not worried that the same chaplain had been employed for almost two decades, and relied upon the historical practice of legislative prayer.  Among the many references to Marsh in the argument and its reliance on history is this one with (ConLawProf) Douglas Laycock, representing the challengers to the prayer, after some laughter:

JUSTICE KENNEDY: I mean, I'm serious about this. This involves government very heavily in religion.

MR. LAYCOCK: Well, government became very heavily involved in religion when we decided there could be prayers to open legislative sessions. Marsh is the source of government involvement in religion. And now the question is how to manage the problems that arise from that.

JUSTICE ALITO: Well, Marsh is not the source of government involvement religion in this respect. The First Congress is the source.

MR. LAYCOCK: Fair enough. The tradition to which Marsh points.

JUSTICE ALITO: The First Congress that also adopted the First Amendment.

Yet another possible distinction from Marsh is the Town of Greece town council is a "hybrid" body which has administrative function and persons appearing before it who are seeking specific relief, as well as being local.  Justice Ginsburg complimented the Deputy Solicitor General, who argued as amicus curiae, supporting the Town of Greece, for being "quite candid" about this quality and stating that it would be proper to have "certain checks" in that setting.   But the nature of those checks preoccupied the arguments.   Does it matter how far the prayer and the "hearing" are separated in time?  Should there be guidelines for those giving the prayers - - - and how much does this involve (entangle) the government in religious matters?  Does it matter if the attendees are asked to show their hands if they personally feel in need of prayer?  (To which Justice Scalia interjected, "That's not a prayer.")   Additionally, there was little satisfaction with either the coercion or endorsement tests, and the (in)famous Lemon test made no appearance at all.

For some Justices, prayer as practiced in the Town of Greece council meetings seemed deeply troubling.  For example, Justice Kagan quickly interrupted Thomas Hungar, arguing on behalf of the town:

JUSTICE KAGAN: Mr. Hungar, I'm wondering what you would think of the following: Suppose that as we began this session of the Court, the Chief Justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators. And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, we acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side. The members of the Court who had stood responded amen, made the sign of the cross, and the Chief Justice then called your case.

During his rebuttal argument, Mr. Hungar's attempt to demonstrate the town was not sectarian in its prayer was less than successful for Justice Sotomayor:

MR. HUNGAR:  Thank you, Mr. Chief Justice. 
First I would like to correct one factual misimpression, the assertion that only non-Christian prayer-givers delivered the prayer after 2008. It's not in the record, but the official web site of the Town of Greece shows that at least four non-Christian prayer-givers delivered prayers thereafter in 2009, '10, '11 and '13.

            JUSTICE SOTOMAYOR:  Counsel.

            MR. HUNGAR:  I'm sorry?

            JUSTICE SOTOMAYOR:  One a year.

            MR. HUNGAR:  I'm sorry, Your Honor?

            JUSTICE SOTOMAYOR: Four additional people after the suit was filed.

            MR. HUNGAR:  Yes, Your Honor.

            JUSTICE SOTOMAYOR:  One a year.

            MR. HUNGAR:  Approximately.

            JUSTICE SOTOMAYOR:  How often does the legislature meet?

            MR. HUNGAR:  Once a month.  
            And on the sectarian line  . . . . .

It was clear that several of the Justices found this as unacceptable as the Second Circuit had.  Yet how and where to draw the lines engendered little agreement.
 

November 6, 2013 in Establishment Clause, First Amendment, Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Friday, November 1, 2013

Weekend Read: The Circle by Dave Eggers

Circle-290Dave Eggers' new novel, The Circle, is a thought-provoking read for anyone working on surveillance, state secrets, corporate governance, privacy, or First Amendment issues as broadly defined.  There are have been some questions raised, as in the review in Wired, whether the book is technologically sophisticated - - - I'd say it's not - - - or whether it works as literature - - - again, I'd lean towards not.  I also think there are some gender and sexual politics that merit further analysis and mar the novel.    But even with these faults, it is one of those books that gives expression to the way one sees daily life in our connected age.

Margaret Atwood has a terrific review of the book in New York Review of Books that gives a good overview of the themes, laced with literary references that the novel itself lacks. Discussing the book over at the New Yorker Blog, Betsy Morais contextualizes the novel, including some of the criticisms and analogues. There's a good rundown of reviews and the divisions about the book in The Atlantic "Wire." 

The book lingers after it is read because it raises interesting questions about the relationships between corporate power and government, as well as our complicity in this internet and social age.  And it's a quick read - - - especially electronically.

 

UPDATE: And here's the NYT Sunday Book Review by Ellen Ullman, who concludes the novel "adds little to the debate" : "Books and tweets and blogs are already debating the issues Eggers raises: the tyranny of transparency, personhood defined as perpetual presence in social networks, our strange drive to display ourselves, the voracious information appetites of Google and Facebook, our lives under the constant surveillance of our own government."

November 1, 2013 in Books, First Amendment, Interpretation, Privacy, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

DC Circuit Finds Corporate Shareholders' Religious Freedom Burdened by ACA's Contraceptive Mandate

In a divided opinion including two senior judges, the Court of Appeals for the District of Columbia Circuit in Gilardi v. HHS  entered the fray regarding corporate rights under RFRA and the First Amendment regarding the requirement that an employer include contraceptive coverage in its health care insurance.   Recall that just last week, the Sixth Circuit denied the claim of Eden Foods, following the decision of another panel of the circuit in Autocam Corp. v. Sebelius, decided in September, that agreed with the divided panel of the Third Circuit's July opinion in Conestoga Wood Specialties  that a for-profit secular corporation cannot assert a claim to religious freedom under RFRA, the Religious Freedom Restoration Act.  This is contrary to the holding of the divided  en banc Tenth Circuit's June majority opinion in Hobby Lobby v. Sebelius presently before the United States Supreme Court on a petition for writ of certiorari filed by the Solicitor General on behalf of Sebelius.

In Gilardi, the divisions by the DC Circuit judges  - - -  Janice Rogers Brown, Harry Edwards, and A. Raymond Randolph - - - reflect the divisions expressed in the other opinions.  Judge Brown's main opinion is joined in various parts by only one of the other two judges, both of whom wrote separate opinions.  Judge Randolph's opinion is a few pages, while Judge Edwards' opinion, concurring in part and dissenting in part is longer than the majority opinion.

The case involves Francis and Philip Gilardi, adherents of Catholicism, who oppose contraception for women.  They are owners of Freshway Foods and Freshway Logistics, closely-held corporations that employ approximately 400 employees.  Important for the analysis, the corporations "have elected to be taxed under Subchapter S of the Internal Revenue Code."  Judge Randolph's brief opinion has a good explication of the relevance of Subchapter S.

Freshway Foods

 

The judges, excepting Randolph, first decide that the corporations do not possess a right of religious freedom.  The majority finds that RFRA's "person" language does not solve the issue, and turns to First Amendment doctrine.  The court notes that perhaps the "constitutional arithmetic" of "Citizens United plus the Free Exercise Clause equal a corporate free exercise right" might "ultimately prevail, but "for now" there is "no basis for concluding a secular organization can exercise religion," thus agreeing with cases such as Eden Foods.  In the brief concurring opinion, Judge Randolph states this issue need not have been addressed. 

 This "leaves the Gilardis," as the court phrases it, and finds that they suffer an injury "separate and distinct" from the corporation.  The majority - -  this time without the agreement of Judge Edwards - - - finds that the religious freedoms of the individual men are burdened under RFRA.  It applies strict scrutiny, as required by RFRA, but interestingly quoting from Fisher, last Term's equal protection case involving racial classifications in affirmative action programs at the the University of Texas.  The majority then rejects as compelling the government interests in safeguarding public health, protecting women's autonomy, or promoting gender equality, finding these interests both too broadly formulated and even if satisfactory, not being served by the least restrictive means.  In short, the majority concludes, even without the contraceptive mandate, the "statutory scheme will not go to pieces."

Judge Edwards' lengthy opinion finds that while the Gilardis may be sincere, the legal claim that the mandate imposes a substantial burden on their individual rights of free exercise of religion because "their companies are required to provide health insurance that includes contraceptive services" is "specious."  Judge Edwards argues that while the individuals may have Article II standing to pursue their claim, this does not mean that they have a valid one.  Judge Edwards extensively rehearses the Supreme Court's free exercise doctrine, intertwined with RFRA, and discusses the burden on the Gilardis.  In a paragraph that captures the disagreement over whether individuals are burdened by the acts of corporations, he argues:

Amici also contend that the difference between the Mandate and paying wages is akin to the difference between a person who opposes the death penalty being required to pay taxes that fund executions, and being required to “purchase the drugs for a lethal injection and personally deliver them to the facility where the execution will take place.” Br. of 28 Catholic Theologians and Ethicists at 19. The problem with this rather extraordinary example is that the Mandate does not require the Gilardis to have nearly this degree of personal involvement in providing contraceptives. The Mandate does not require the Gilardis to transfer funds from Freshway’s accounts directly to the manufacturers or retailers of contraception. Nor are the companies required to deliver or distribute contraception to employees. Under the Employee Retirement Income Security Act, 29 U.S.C. § 1132(d)(1), Freshway is a distinct legal entity from its self-insured group health plan. The plan is operated by a third-party administrator, and, pursuant to health privacy regulations, the Gilardis are actually prohibited from being informed whether individual employees purchase contraceptive products, or about any other information regarding employees’ health care decisions. See Br. of Americans United for Separation of Church and State, et al., at 29-30 (citing 45 C.F.R. § 164.508; 45 C.F.R. § 164.510). Moreover, the Gilardis are free to procure Mandate-compliant coverage for their employees through an entirely independent, third-party insurance carrier, rather than administering their own group health plan. Id. This is a far cry from personally purchasing contraceptives and delivering them to employees.

Further, Judge Edwards would find that even if there were a substantial burden, there are compelling governmental interests supporting the contraceptive mandate provisions, including "promoting public health, welfare, and gender equality."  He would find the exemptions narrow and, analogizing to the Social Security tax upheld by the United States Supreme Court, the scheme cannot function if persons are allowed to opt-out because money is being spent in a manner that violates their religious beliefs.

Because the district court found as a matter of law that the Gilardis did not have a substantial likelihood of prevailing on the merits, it denied the prelimiary injunction.  Having reversed that conclusion of law, the majority remands for a determination of the other considerations for a preliminary injunction.

But most certainly the Gilardis case - - - or this issue - - - will not simply end there.  It may be determined by what the Court does in Hobby Lobby, even as Freshway Foods is distinguished by being a different type of corporation.

November 1, 2013 in First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Religion, Reproductive Rights, Sexuality | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 29, 2013

Catholic Media Corporation, Alabama Sue Over Contraception Mandate

The Eternal World Television Network, a Catholic media corporation, and the State of Alabama filed suit against the government yesterday, seeking to halt the contraception mandate in the Affordable Care Act. 

EWTN argues that the mandate violates the Religious Freedom Restoration Act and the religion clauses, among other claims.  Alabama says that the mandate intrudes on its "sovereign prerogative to regulate the insurance market in accordance with its own law and policy, without being contradicted by unlawful federal regulations."

The case is just the latest religious-based challenge against the contraception mandate.  We posted most recently just yesterday, on the Sixth Circuit's ruling in Eden Foods.  If Eden Foods seemed more political than religious-based--the plaintiff's "deeply held religious beliefs" "more resembled a laissez-faire, anti-government screed," according to the court--this case seems more political than religious-based for a different reason: EWTN is exempt under HHS regs, and if the mandate is valid Alabama simply has no claim.  In other words: the plaintiffs don't seem to have much to complain about.  We posted on the government's proposed regs exempting religious employers here; and we posted on the then-developing circuit split on the issue here.

EWTN says this about its accommodation under the regs:

This is a mere fig leaf.  It would still require EWTN to play a central role in the government's scheme by "designating" a fiduciary to pay for the objectionable services on EWTN's behalf.  This would do nothing to assuage EWTN's objections to the mandate.

The so-called "accommodation" also continues to treat EWTN as a second-class religious organization, not entitled to the same religious freedom rights as the Church it exists to serve.  It also creates administrative hurdles and other difficulties for EWTN, forcing it to seek out and contract with companies willing to provide the very drugs and services that EWTN speaks out against.

As to Alabama, the State apparently seeks to protect itself and its citizens from the "immediate and continuing burdens" of the mandate.  The State points out that its law expressly says that insurers do not have to provide contraception coverage in their plans.  The claim sounds in federalism, but the complaint doesn't say why or how the federal mandate violates federalism principles.  (Maybe that's because it doesn't.)

The plaintiffs also raise free speech, due process, and APA claims.

October 29, 2013 in Cases and Case Materials, Congressional Authority, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)

Monday, October 28, 2013

Sixth Circuit: Eden Foods Corporation Cannot Assert a Religion Under RFRA

The continuing question of whether a for-profit secular corporation can assert a religious belief against contraception sufficient to exempt it from the ACA's provision requiring an employer to include contraceptive coverage in its health care insurance was again addressed by the Sixth Circuit in its opinion in Eden Foods v. Sebelius.

Interestingly, a footnote in the opinion cast doubt on whether Eden Foods and its founder and sole shareholder Michael Potter could past the requirement of having a sincerely held religious belief:

Potter’s “deeply held religious beliefs,” see Complaint ¶ 83, more resembled a laissez-faire, anti-government screed.  Potter stated to Carmon [in an article in salon.com]  “I’ve got more interest in good quality long underwear than I have in birth control pills.” Carmon then asked the Eden Foods chairman why he didn’t seem to care about birth control when he had taken the step to file a lawsuit over the contraceptive mandate. Potter responded, “Because I’m a man, number one[,] and it’s really none of my business what women do.” The article continued:

So, then, why bother suing? “Because I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” He added, “I’m not trying to get birth control out of Rite Aid or Wal-Mart, but don’t tell me I gotta pay for it.”

 

Eden Foods 2


But the panel opinion rested on different grounds, following the decision of another panel of the circuit in Autocam Corp. v. Sebelius, decided in September, that agreed with the divided panel of the Third Circuit's July opinion in Conestoga Wood Specialties  that a for-profit secular corporation cannot assert a claim to religious freedom under RFRA, the Religious Freedom Restoration Act. 

This is contrary to the holding of the divided  en banc Tenth Circuit's June majority opinion in Hobby Lobby v. Sebelius presently before the United States Supreme Court on a petition for writ of certiorari filed by the Solicitor General on behalf of Sebelius, the Secretary of Health and Human Services.   In its response brief filed October 21, 2013, Hobby Lobby agrees that the Court should grant the writ and hear the case.   With the split in the circuits, numerous district court cases in litigation, and both parties contending it is a matter of great public importance, odds are that the Court will grant certiorari for the current Term. 

 [image via]

October 28, 2013 in Family, First Amendment, Medical Decisions, Religion, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Friday, October 25, 2013

Second Circuit Enjoins NY Campaign Finance Provisions

A few days after hearing oral argument, a Second Circuit panel has reversed the district judge and entered an order enjoining the enforcement of New York Election Law §14-114(8) and §14-126(2) in its 14 page unanimous opinion in New York Progress and Protection PAC (NYPPP) v. Walsh.

NYPPP challenged New York's $150,000 individual contribution limit to a PAC alleging that it has a "donor waiting to contribute $200,00 to its cause" and that the contribution limit violates NYPPP's "core First Amendment right to advocate in favor of Joseph Lhota in the upcoming New York mayoral election."  According to the NY Times, that "donor" is none other than Alabama businessman, Shaun McCutcheon - - - the plaintiff in the campaign finance challenge McCutcheon v. FEC heard by the United States Supreme Court earlier this month as we discussed here.

While stating that the court expressed "no opinion on the ultimate outcome," it did hold that there was a substantial likelihood on the merits, citing Citizens United v. FEC for the proposition that the government "has no anti-corruption interest in limiting independent expenditures."  The panel rejected the district court's finding that the "so-called independent expenditure only committees" have "only one purpose - advancing a single candidacy at a single point in time - - - " and are thus "not truly independent as a matter of law."  Instead, the panel concluded that NYCPP was independent and its choices "irrelevant."  Thus, a donor to an independent expenditure PAC such as NYPCCC is "even further removed from the candidate and may not be limited in his ability to contribute to such committees."   The panel noted that this issue has been resolved "consistently" by all the federal courts that have considered it.

Balancing the equities, the panel easily concluded that the hardship faced by NYPPP and its donors was significant: "Every sum that a donor is forbidden to contribute to NYPPP beacuse of this statute reduces constitutionally protected polictical speech."

The Second Circuit's injunction against the enforcement of the NY campaign finance statutes was criticized by the rival of Republican Joe Lhota:  a spokesperson for Democrat Bill deBlasio, reportedly stated the ruling would "empower the right-wing billionaires, like the Koch Brothers, and Tea Party groups who support Joe Lhota  to drown out the voices of New Yorkers."  

 The race between the mayoral candidates remains heated, if not especially close so far.  The question is whether an influx of money can change the outcome on November 5.

Meanwhile, watch the most recent debate between the candidates:

 


 

October 25, 2013 in Campaign Finance, Current Affairs, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

Access to the Courts Includes Arbitration Proceedings, Divided Third Circuit Panel Holds

 The First Amendment includes a right of public (and press) access to trials.  But what is a "trial"?  Or, as the Third Circuit considered in its opinion in Delaware Coalition for Open Government v. Strine, is there a right of public access to a state sponsored arbitration program.  By a divided panel - - - with a separate opinion from each of  the three judges - - - the majority held that the First Amendment requires public access to state arbitration proceedings.

800px-Ferdinand_Brütt_Vor_den_RichternWhile the majority affirmed the district judge, the appellate panel disagreed with the standard the district judge applied.  The correct standard, according to the apellate panel, is the "experience and logic" test.  The test derives from cases applying the open access to a trial principle that the United States Supreme Court enunicated in Richmond Newspapers v. Virginia in 1980, including Press Enterprise v. Superior Court (II), in 1986, considering whether preliminary criminal hearings must be open to the public.  Thus, quoting from Press Enterprise II,  as the majority opinion by Judge Dolores Sloviter phrased it:

A proceeding qualifies for the First Amendment right of public access when “there has been a tradition of accessibility” to that kind of proceeding, and when “access plays a significant positive role in the functioning of the particular process in question.”

The history prong - - - asking whether there is a tradition of accessibility - - - rests upon a determination of the "kind" of proceeding in question.  Here, the parties disagreed whether the focus should be on "civil trials" or "arbitrations": the court provided an in-depth discussion of both.  The civil trial discussion traversed familiar ground, with the easy conclusion that civil trials and courtrooms are generally open to the public.  The arbitration discussion began with a mention of English arbitrations in the twelfth century, concluding with a finding that the "history of arbitrations reveals a mixed record of openness."  But, the court continued, the history shows that "arbitrations with non-state action in private venues tends to be closed."  This is distinct from the Delaware scheme at issue, "a binding arbitration before a [state] judge that takes place in a courtroom," which is more like a usual civil trial. 

On the logic prong, not surprisingly given the majority's discussion of history, public access was deemed to play a significant positive role.  Judge Sloviter's opinion revealed a pointed disagreement with Judge Jane Roth's dissent:

I agree with Judge Roth on the virtues of arbitration. I cannot help but question why the Delaware scheme limits those virtues to litigants whose disputes involve an amount in controversy of at least a million dollars, and neither of whom is a consumer. One wonders why the numerous advantages set forth in Judge Roth’s dissenting opinion (which apparently motivated the Delaware legislature) should not also be available to businesspersons with less than a million dollars in dispute. I see no explanation in Judge Roth’s dissent for the limitation to rich businesspersons.

In her dissent, Judge Roth states that she believes that I do not appreciate the difference between adjudication and arbitration, i.e., “that a judge in a judicial proceeding derives her authority from the coercive power of the state, while a judge serving as an arbitrator derives her authority from the consent of the parties.” Indeed I do.

Delaware’s proceedings are conducted by Chancery Court judges, in Chancery Court during ordinary court hours, and yield judgments that are enforceable in the same way as judgments resulting from ordinary Chancery Court proceedings. Delaware’s proceedings derive a great deal of legitimacy and authority from the state. They would be far less attractive without their association with the state. Therefore, the interests of the state and the public in openness must be given weight, not just the interests of rich businesspersons in confidentiality.

In his concurring opinion, Judge Julio Fuentes seeks to clarify that it is not the entire arbitration scheme that violates the First Amendment, but only the provision requiring the proceedings to be "confidential" and "not of public record" until they are appealed.

Thus, these high stakes commercial arbitrations allowed by Delaware law and performed by Delaware judges can continue - - - but they are no longer confidential.  This certainly seems the correct outcome if the First Amendment access to "trials" has substantive meaning.

[image via]

October 23, 2013 in Courts and Judging, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, October 21, 2013

Daily Power Point Slides: PRISM, Surveillance, France and the NSA

Many will be considering the new revelations regarding the NSA and France, published in Le Monde today, linked and discussed in this LeMonde editorial, with The Guardian coverage here.

A few Power Point slides are published in Le Monde.   But Journalist Glenn Greenwald and Edward Snowden have also released additional Power Point Slides that are worth a look.  A set of eleven slides have some redactions, but will also seem eerily familiar to anyone who has ever prepared or seen a Power Point presentation:

 

Slide 3
slide 3

 

Slide 5
slide 5



October 21, 2013 in Executive Authority, First Amendment, Foreign Affairs, State Secrets | Permalink | Comments (0) | TrackBack (0)

Sunday, October 20, 2013

Sunday Dress: A Woman's Constitutional Right to "Go Topless"

While the United States Supreme Court has never declared that women possess a First Amendment or Equal Protection or any other constitutional right to be as shirtless as men in public, several state courts have found constitutional protections.  

463px-C_W_Eckersberg_1841_-_Kvinde_foran_et_spejl

Yet even where there is state precedent, the police may not think so; and even when a woman about to be arrested tells the officiersabout a case, they may still not think so.   That's the basis of the allegations in Krigsman v. New York City, a complaint filed earlier this month, that I discuss over at Dressing Constitutionally.

[image: Woman Standing in Front of a Mirror, 1841]

 

 

 

October 20, 2013 in Equal Protection, First Amendment, Gender, Interpretation, News, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, October 11, 2013

Daily Read: The Obama Administration and the Press Leak

An extensive "Special Report" from the Committee to Protect Journalists, CPJ, details and discusses the state of "leaks" including prosecutions of James Risen and Manning.

Banner CPJ
Here's the opening:

 In the Obama administration’s Washington, government officials are increasingly afraid to talk to the press. Those suspected of discussing with reporters anything that the government has classified as secret are subject to investigation, including lie-detector tests and scrutiny of their telephone and e-mail records. An “Insider Threat Program” being implemented in every government department requires all federal employees to help prevent unauthorized disclosures of information by monitoring the behavior of their colleagues.

Six government employees, plus two contractors including Edward Snowden, have been subjects of felony criminal prosecutions since 2009 under the 1917 Espionage Act, accused of leaking classified information to the press—compared with a total of three such prosecutions in all previous U.S. administrations. Still more criminal investigations into leaks are under way. Reporters’ phone logs and e-mails were secretly subpoenaed and seized by the Justice Department in two of the investigations, and a Fox News reporter was accused in an affidavit for one of those subpoenas of being “an aider, abettor and/or conspirator” of an indicted leak defendant, exposing him to possible prosecution for doing his job as a journalist. In another leak case, a New York Times reporter has been ordered to testify against a defendant or go to jail.

This is definitely worth a read, especially for anyone interested in the First Amendment or State Secrets.

 

October 11, 2013 in Current Affairs, First Amendment, Speech, State Secrets | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 9, 2013

Daily Media: Manning Updates (Including Banksy)

Chelsea Manning, convicted as Private Bradley Manning in a controversial military trial for revealing information to WikiLeaks, issued the first statement since her conviction, prompted in part by receiving a peace award.  She stated that although her actions may have had pacficist "implications," she does not consider herself a pacifist.   Rather, she is a "transparency advocate."  The statement also contains specific discussion of gender identity.   Manning's two page statement is worth a read, as is the accompanying article in The Guardian (to whom the statement was released) by Ed Pilkington.

Meanwhile in New York City, the latest and most ambitious project of the British public artist Banksy in his self-proclaimed October artist's residency on the streets of New York, alludes to Manning.  The street art's references might be somewhat illusive to a casual observer:

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But Banksy's site featuring this image (as well as another), also includes an "audio guide."  It derives from some of the materials that Manning disclosed.  Gothamist has a good explanation (and more photos).  The Village Voice has excellent (with continuing) coverage of Banksy's art here and a profile with quoted material here.

 

October 9, 2013 in Current Affairs, First Amendment, State Secrets, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 8, 2013

Court Considers Aggregate Campaign Contribution Limits

The Supreme Court today heard oral arguments in McCutcheon v. FEC, the case testing whether aggregate campaign contribution limits violate the First Amendment.

Aggregate limits, established under the Bipartisan Campaign Reform Act, or BCRA, cap the total amount that a contributor can give to candidates, political parties, and political committees.  Aggregate limits supplement base limits, also in the BCRA, which cap the amount that a contributor can give to a particular candidate.  Aggregate limits are designed to prevent a contributor from circumventing the base limits (and thus to prevent corruption and the appearance of corruption) by funneling total contributions in excess of the base limits through a variety of different recipients and to a particular candidate.  

Here's how it would work: Suppose Congress capped campaign contributions at $5,000 per candidate per cycle, so that a contributor could give only $5,000 to his or her preferred candidate.  Without more, that contributor could easily bypass that base limit by simply contributing $5,000 to a number of different organizations that could, in turn, support or contribute to the contributor's preferred candidate.  The contributor could thus effectively circumvent the base limit and corrupt his or her preferred candidate by funneling contributions through intermediaries.

Congress recognized this circumvention problem and imposed a cap on aggregate contributions in order to avoid it.  The Court in Buckley v. Valeo (1976) upheld both the base contribution limit and an aggregate contribution limit, holding that they work to prevent actual and apparent corruption and circumvention.  Later, in BCRA, Congress restructured and increased previous base and aggregate contribution limits and provided for automatic adjustments for inflation.

McCutcheon, a wealthy contributor, challenged the aggregate limits as violating the First Amendment.  (For more on the background, my ABA Preview piece is here.)

The arguments today focused on whether the current aggregate contribution limits continue to do any work with regard to corruption or circumvention.  The RNC and McCutcheon argued that they don't.  They said that other features of the law already prevent circumvention and corruption, and that the aggregate limits therefore only serve to limit free speech and association.  The FEC, on the other hand, said that they do--that they are necessary to close circumvention opportunities even with the other protective features of federal law, and that they prevent corruption.

The right answer, of course, turns on how money can flow in politics.  There were plenty of hypotheticals today (and in the briefing) designed to illustrate how aggregate limits work to prevent corruption and circumvention (and counter-points on why they don't).  Justices Breyer and Kagan led the charge with hypos showing why aggregate limits were necessary; Justice Kennedy expressed interest, as well.  But for every hypo, the petitioners had an explanation why current law already solved the corruption and circumvention problem, even without aggregate limits.  The lack of context and record on this point led Justices Breyer and Sotomayor to wonder whether the case might benefit from further development at the lower court.  (Don't bet on this outcome.)

Justice Alito turned this line of questions on the government and asked SG Verrilli why other features of federal law don't already solve the corruption and circumvention problems.  SG Verrilli seemed to back away from the circumvention interest and answered that a single contributor's very large contribution, dispersed across like-minded candidates and organizations, is itself a corruption problem, and that aggregate limits address this.  The answer didn't seem to satisfy.

Chief Justice Roberts had a different concern: how the aggregate limits affect a contributor's ability to give the maximum amount to as many candidates as he or she wants--and how this limits a contributor's speech and association rights with regard to, say, the tenth candidate that the contributor wants to support.  He also wondered whether there weren't less speech- and association-infringing ways to prevent corruption and circumvention. 

In short, both the Chief Justice and Justice Alito, who together may well control the outcome of this case, seemed accutely concerned that the aggregate limits weren't the best-tailored way for the government to achieve its interests in preventing corruption and circumvention.  At the same time, though, neither Chief Justice nor Justice Alito (nor anybody else today) directly took on Buckley's holding on base and aggregate contribution limits.  (Justices Kennedy, Scalia, and Thomas are all on record against Buckley's holding that the government can regulate contributions in the interest of preventing corruption.)  Instead, the arguments focused on whether the non-aggregate-limiting features of BCRA can do the work of preventing corruption and circumvention--and therefore whether the aggregate limits only serve to infringe the First Amendment.  So if the arguments today are any indication, we may see a 5-4 Court striking the aggregate limits because they're not sufficiently tailored to prevent corruption or circumvention--and because they limit too much speech and association.

If so, we'll likely see more total money going directly to candidates, political parties, and committees.  But remember that under Citizens United individuals can already spend as much as they want on "independent" electioneering.  This case won't change that, even if it directs some of that "independent" money to candidates, political parties, and committees for better coordinated expenditures.  (Justice Scalia argued today that the anti-corruption purpose of aggregate limits seems as weak as, or weaker than, an anti-corruption purpose for the independent expenditure restrictions that the Court struck in Citizens United.)  At the same time, this case probably won't upset Buckley's holding that the government can cap base contributions in the interest of preventing actual or apparent corruption.  Indeed, it may not even upset Buckley's holding on aggregate contributions.  Instead, it may only say that under BCRA aggregate limits aren't doing the anti-corruption and anti-circumvention work that they were designed to do, and that they're unduly infringing on the First Amendment.

October 8, 2013 in Association, Campaign Finance, Cases and Case Materials, First Amendment, News, Oral Argument Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Video: Stephen Cobert Interviews Emily Bazelon on McCutcheon v. FEC

Worth a watch:

The Colbert Report
Get More: Colbert Report Full Episodes,Video Archive

Here's our take on today's oral arguments in the United States Supreme Court.

October 8, 2013 in Campaign Finance, First Amendment, Supreme Court (US), Weblogs | Permalink | Comments (0) | TrackBack (0)

Sunday, October 6, 2013

Sunday Dress: Can A Student Wear an NRA T-Shirt to School?

This week in "dressing constitutionally" saw another NRA t-shirt student kerfuffle, this time in Orange County, California.

Here's the television segment that accompanied the LA Times article:

The incident seemingly ended with the school apologizing for asking the student to change her NRA shirt, a somewhat different result from the incident earlier this year in West Virginia, although the NRA seemed to be involved in each.

The constitutional concerns at a public school will center on the "substantial disruption standard" of Tinker v. Des Moines Independent Community School District, which  famously involved the wearing of black armbands by school students in protest of the Vietnam War.  Decided by the United States Supreme Court in 1969, Tinker established the substantial and material disruption standard for evaluating school speech. While the Court actually uses the word “interfere” more often than “disrupt,” and uses the terms synonymously, what has become known as the Tinker disruption standard requires that in order to curtail student speech, school authorities must show that the student speech would materially and substantially interfere with appropriate school discipline.  In Tinker itself, the Court noted that “the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities” because a few students wore black armbands.

The NRA shirt easily meets the threshold of being expressive, one that not all student wear satisfies. 

But also important is the actual school dress code.  Courts - - - including notably the Fifth Circuit - - - has upheld a dress code that prohibited all (or almost all) speech on clothes, including the text of the First Amendment.  

 

October 6, 2013 in Family, First Amendment, Second Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, October 4, 2013

Daily Video: Town of Greece Legislative Prayer Case

The United States Supreme Court will consider the constitutionality of "legislative prayer" in Town of Greece v. Galloway this Term, with oral arguments scheduled for November 6, 2013.  As we discussed previously, the Obama Administration has filed a brief supporting the Town of Greece.   Recall also that the Second Circuit found that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity" and thus violated the Establishment Clause.

This video from PBS provides a great overview (in 7 minutes) of the case, and a transcript is also available.

 

This could be a great video to show in class as a prelude to discussion of the arguments. 

October 4, 2013 in Establishment Clause, First Amendment, News, Religion, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 2, 2013

Court to Hear Case Pitting Mandatory Union Fees Against First Amendment

The Supreme Court today agreed to hear a case pitting mandatory union fees for non-members against non-members' free speech and free association rights.  The case, Harris v. Quinn, is the second time in recent years that the Court will consider the issue.  (Our original post on Harris is here.)  And if the signals from its first case, Knox v. SEIU, are any indication, we can expect that the Court will continue to chip away at, even eviscerate, public-sector union power.  

Harris involves an Illinois law that requires home-health-care personal assistants who are not members of the assistants' designated union to pay union dues for union activies such as collective bargaining (but not for politics and other non-union activities).  The Supreme Court has long allowed this kind of mandatory fee for non-members of public sector unions (going back to Abood v. Detroit Board of Education) in the interest of preventing free riding by non-members.  (If non-members could get by without paying union-related fees for activities like collective bargaining, then nobody would become a member.  Why?  Because non-members could enjoy the benefits of the union without paying any fees.  But if that happened, then the union's funding stream would dry up, and the union would cease to exist.  Thus the rule makes sense for union-related activities.  But the Court drew the line at non-union-related activities, like politics, where mandatory fees for non-members would compel a political association to which they objected.)  Because the Supreme Court has long allowed this kind of mandatory fee, the Seventh Circuit upheld the fee in Harris.  (There was just one twist: personal assistants look a little like state employees and a little like personal employees of the patients they serve, or state contractors.  The Seventh Circuit ruled that they were state employees.)

The Court now will review that ruling.  But it doesn't start from scratch.  That's because the Court ruled in Knox in 2012--after the Seventh Circuit handed down Harris--that a public union couldn't use an opt-out procedure for special assessment fees for non-members for non-union activities; instead, the Court said it had to use an opt-in procedure.  In other words, the Court ruled that the state couldn't require non-members to pay the special assessment for non-activities but opt out; instead, the state could only allow non-members to opt in.

Knox dealt with a seemingly narrow issue--opt-out or opt-in for special assessments for non-union activities.  But by requiring opt-in, and thus setting the baseline as no fee assessments for non-union activities for non-members, the case was a blow to union power.

But more: the Knox opinion (penned by Justice Alito) included strong language suggesting that the broader Abood rule violated free speech and free association.  That is, Knox comes very close to saying that states can't require non-members to pay even for union activities--even though that question wasn't before the Court.

In other words, the Court in Knox sounded like it was just waiting for a case to give it a chance to overturn the Abood rule that non-members can be assessed fees for union activities.

Harris might just be that case.  If so, Harris could represent a big blow to public union power.  Indeed, depending on how the Court might rule, it could mark the beginning of the end of public unions (if the beginning hasn't already happened).  That's because a rule that allows non-members to dodge fees for collective bargaining and other union activities--that is, to free ride on the union--would give a strong incentive for everyone to bail out of the union.

The Court could rule differently, though--on Abood's application to independent contractors and even to the private sector--and that's where the facts matter.  Remember that the Seventh Circuit said that personal assistants were state employees, but that they also look a little like private employees.  Abood applies to public employees, and the Seventh Circuit was clear that "we do not consider whether Abood would still control if the personal assistants were properly labeled independent contractors rather than employees."  "And we certainly do not consider whether and how a state might force union representation for other health care providers who are not state employees, as the plaintiffs fear."  Op. at 15.  This kind of ruling could represent a significant blow to union power, too.

Either way, Knox put the handwritting on the wall.  Harris may just be the case to take on the long-standing rule that states can require non-members to pay union dues for union activities in order to avoid free riders.  If the Court reverses this rule, or even just chips away at it, the case will be a significant blow to unions.

There's another question in Harris.  One group of personal assistants in Illinois, operated under a different state department, voted not to organize; they therefore do not have to pay any fees.  The Seventh Circuit ruled that their claim wasn't yet ripe.  This, too, is before the Court.

October 2, 2013 in Association, Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, News, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 1, 2013

First Circuit Upholds Bans on Tobacco Coupons, Flavored Tobacco

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).

October 1, 2013 in Cases and Case Materials, Federalism, First Amendment, News, Opinion Analysis, Preemption, Speech | Permalink | Comments (0) | TrackBack (0)

Fifth Circuit Reverses Prior Restraint of Total Ban on Plaintiffs' Website

Germany_in_XXI_century._Criminal_policeIn 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]

 

October 1, 2013 in Courts and Judging, First Amendment, Opinion Analysis, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

Texans Debate Creationism in the Classroom

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.

September 30, 2013 in Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, News, Religion | Permalink | Comments (2) | TrackBack (0)

Sunday, September 29, 2013

Evolution Again at Center of Kansas Education Dispute

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.

September 29, 2013 in Cases and Case Materials, First Amendment, News, Religion | Permalink | Comments (2) | TrackBack (0)