Tuesday, August 6, 2013
The Sixth Circuit ruled last week in McGlone v. Cheek that the University of Tennessee's speech policy was unconstitutionally vague and violated the First Amendment.
The case arose when the University denied permission to McGlone, a self-described "committed Christian," to share his religious beliefs with students in an open-air amphitheater on campus. Campus authorities told him that he needed a University sponsor. In particular, they told him that University policy required speakers not affiliated with the University receive sponsorship from "students, faculty, or staff." But they also told him that he needed to be "sponsored by a registered student organization, staff, or faculty." McGlone couldn't get a sponsor, so he didn't speak. But he sued.
The Sixth Circuit seized on the different articulations of the policy--one requiring sponsorship from "students, faculty, or staff," and the other requiring sponsorship from "a registered student organization, staff, or faculty"--to rule that the policy was unconstitutionally vague. The court said that a person of ordinary intelligence wouldn't know the University policy's meaning, that University officials had applied it differently, and that it left open the possibility of arbitrary and discriminatory enforcement.
The court remanded the case to the district court with instructions to grant a preliminary injunction against the University.
Monday, August 5, 2013
The students' bracelets proclaimed "I ♥ boobies (KEEP A BREAST)." The Easton Area School District banned the bracelets as not suitable for school. In an en banc opinion today in B.H. v. Easton Area School District, the Third Circuit upheld the First Amendment rights of the students, affirming the district judge's injunction against the school.
The bracelets were clearly speech and the school's attempt to ban the expression brought the Supreme Court's student speech cases into play: Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), Hazelwood Sch. Dist. v. Kuhlmeier (1988) and Morse v. Frederick (2007).
The school district relied most heavily on Fraser, defending the bracelet ban as an exercise of its authority to restrict lewd, vulgar, profane, or plainly offensive student speech allowable under Fraser. However, in the en banc opinion joined by 9 judges, the Third Circuit held that although under Fraser, "a school may categorically restrict plainly lewd, vulgar, or profane speech that offends for the same reasons obscenity offends," Fraser "does not permit a school to categorically restrict ambiguous speech that a reasonable observer could interpret as having a lewd, vulgar, or profane meaning and could plausibly interpret as commenting on a social or political issue." (emphasis added).
The Third Circuit noted that the Tinker disruption standard remained as a "backstop" to the school's argument, but held that here it was not effective. Tinker, the court asserted "meant what it said: ―a specific and significant fear of disruption, not just some remote apprehension of disturbance," and in the case of the Easton School District's ban on the bracelets the "record of disruption is even skimpier" than it was in the case of the Des Moines school district's ban on the black armbands at issue in Tinker.
For the 5 dissenting judges,there was some doctrinal disagreement over the controlling rationale of Morse (the "Bong Hits 4 Jesus" case), but the central issue was the applicability of Fraser. For the dissenters, the balance tips toward deference to the school and the fact that the phrase "I ♥ boobies! not only expresses support for those afflicted with breast cancer, but also conveys a sexual attraction to the female breast," allows the school to ban the bracelets. This is true even if "certain facts indicate that a sexual interpretation of the ―I ♥ boobies bracelets may be at the outer edge of how a reasonable observer would interpret speech."
In a very short separate dissenting opinion, but signed by all 5 dissenters, Judge Greenaway, Jr. makes the point that the majority opinion provides little guidance to school districts. Thus, the "I ♥ boobies" Third Circuit opinion joins the "My Space" off campus school speech Third Circuit en banc opinion in 2011, which provided just a little guidance. Yet perhaps the guidance is this: school officials seeking to restrict student speech do so at their own peril.
More on "Dressing Constitutionally" blog here
Thursday, August 1, 2013
In its opinion in Drake v. Filko, a panel of the Third Circuit has rejected a Second Amendment challenge to New Jersey's handgun permit law, N.J.S.A. § 2C:58 - 4. Affirming the district judge, the majority opinion by Judge Ruggero Aldisert (who was appointed to the Third Circuit by President Lyndon Johnson) upheld the statutory "justifiable need” standard for a permit to carry a handgun in public.
The majority declined to "definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the “core” of the right as identified by Heller," referring to the Supreme Court's controversial 2008 decision of Heller v. District of Columbia finding that the Second Amendment should be interpreted as including an individual right. Yet the majority moved on to assume that even if the individual right extended beyond the home, does a "requirement that applicants demonstrate a “justifiable need” to publicly carry a handgun for self-defense burdens conduct within the scope of that Second Amendment guarantee. It concluded that the “justifiable need” standard of the Handgun Permit Law is a longstanding regulation that enjoys presumptive constitutionality under the teachings articulated in Heller, noting that a "close analogue to the New Jersey standard can be found in New York’s permit schema," which was upheld by the Second Circuit as we discussed last November.
The majority acknowledged that this could well settle the matter. But "in this new era of Second Amendment jurisprudence," it decided it was important to proceed to apply the means-end scrutiny under its circuit precedent. And as in most means-end inquiries, the level of scrutiny was a central issue. Predictably, the challengers argued for strict scrutiny, but their argument rested upon an analogy to First Amendment prior restraint doctrine. The court rejected that analogy, canvased the Second Amendmen levels of scrutiny being applied in the circuits, and concluded that "intermediate scrutiny" was the correct standard, and articulated it thusly:
under intermediate scrutiny the government must assert a significant, substantial, or important interest; there must also be a reasonable fit between that asserted interest and the challenged law, such that the law does not burden more conduct than is reasonably necessary.
After an extensive discussion, the majority found that the NJ law satisfied this standard.
In a dissenting opinion as lengthy as the majority opinion, Circuit Judge Thomas Hardiman disagreed with almost every aspect of the majority's well-reasoned opinion. Judge Hardiman argued that the Second Amendment should apply outside the home, argued that NJ's gun restriction was historically not longstanding, and while agreeing that intermediate scrutiny was the correct standard, disagreed that it was satisfied.
While the United States Supreme Court denied certiorari in the Second Circuit opinion upholding NY's limitation on concealed gun laws, a petition for certiorari will most probably be filed in this Third Circuit case. At some point, the Court may again take up the confusing issues left in the wake of its two controversial decisions in Heller v. District of Columbia and McDonald v. City of Chicago.
Tuesday, July 30, 2013
NYPD Officer Craig Matthews was critical of the alleged quota system responsible for unjustified stops, arrests, and summonses in his precinct in New York City and suffered adverse employment actions. His claim of a First Amendment violation raises the specter of Garcetti v. Ceballos, decided by the Court in 2006. Citing Garcetti, as well as Second Circuit precedent, a district judge dismissed Matthews' complaint last year. The Second Circuit reversed in a summary order, finding that discovery was required to inquire into the "nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” On remand, the case was reassigned to a different judge, discovery ensued, but Matthews was again unsuccessful.
Judge Englemayer 's opinion in Matthews v. City of New York grants summary judgment to the defendant.
While the subject matter of Officer Matthews' speech was clearly a matter of public concern, the officer spoke "pursuant to his public duties" and as an employee rather than a citizen. Judge Englemayer's opinion contains an excellent rehearsal of the Supreme Court's precedent, starting with Pickering and continuing to Garcetti. But the crux of the argument rests upon the Second Circuit case of Jackler v. Byrne, a rare post-Garcetti case finding for the employee. The judge distinguishes Jackler on specific facts:
Officer Matthews made a series of truthful reports about his concerns; unlike Jackler, he was neither compelled to retract those statements nor to file a false report.
Judge Englemayer goes on for an additional ten pages, engaging in a "fact-specific inquiry" regarding whether Matthews' complaints were made "pursuant to his official duties." It is definitely a careful and considered opinion, yet it is sure to be appealed. With the continuining attention to stop and frisk policies, including the possibility of police "quotas," Matthews' case raises important issues not necessarily solved by current First Amendment doctrine.
Monday, July 29, 2013
opinion, a panel of the Third Circuit in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services has held that a private for-profit secular corporation, in this case making wood cabinetry and employing almost one thousand people, does not meet the threshold for raising a claim that the ACA's requirement that its health insurance include contraceptive coverage for its employees.
Writing for the majority, Judge Robert Cowen, joined by Thomas Vanaskie, acknowledged in a footnote the contrary decision of a majority of the Tenth Circuit en banc in Hobby Lobby Stores, Inc. v. Sebelius, but simply stated it respectfully disagreed. Instead, affirming the district judge, the majority skillfully articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.
First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010). The majority noted that Citizens United was grounded in the notion that the Court has a long history of protecting corporations' rights to free speech and that there was no similar history regarding corporations' religious rights:
In fact, we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.
The majority distinguished religious organizations, such as those involved in Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) or Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), because these are not "secular, for-profit corporations."
Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners. The majority noted that the Hahn family own 100 percent of the voting shares of Conestoga and that the Hahns practice the Mennonite religion. However, it rejected the theory that had been applied by the Ninth Circuit in two non-ACA mandate cases, stating the theory "rests on erroneous assumptions regarding the very nature of the corporate form." For the majority, it is a "fundamental principle" that "incorporation‘s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created the corporation." Rather, "by incorporating their business, the Hahns themselves created a distinct legal entity that has legally distinct rights and responsibilities from the Hahns, as the owners of the corporation." Moreover, because
Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga.
(emphasis in original).
The majority's RFRA analysis is exceedingly brief, simply stated that since the corporation cannot exercise a religion it cannot assert a statutory RFRA claim.
In a 66 page dissent that is twice as long as the majority opinion, Judge Kent Jordan criticizes the majority for concluding that the "Hahns' choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit." Judge Jordan's dissent is clearly deeply felt, stating that
the government claims the right to force Conestoga and its owners to facilitate the purchase and use of contraceptive drugs and devices, including abortifacients, all the while telling them that they do not even have a basis to speak up in opposition. Remarkable.
I reject that power grab and would hold that Conestoga may invoke the right to religious liberty on its own behalf.
Indeed, Judge Jordan's dissent demonstrates how deeply the divisions abide on this issue. Coupled with the similarly split opinions in Hobby Lobby, in which the majority agrees with Judge Jordan, it's clear that if - - - and most likely when - - - this issue reaches the United States Supreme Court, it will be very contentious.
July 29, 2013 in Cases and Case Materials, Congressional Authority, Current Affairs, First Amendment, Gender, Interpretation, Opinion Analysis, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, July 22, 2013
In its opinion in United States v. Sterling, with James Risen as Intervernor, a sharply divided Fourth Circuit panel declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.
The underlying controversy involves James Risen's book, State of War: The Secret History of the CIA and the Bush Administration and the prosecution of former CIA agent Jeffrey Sterling for various crimes related to his revealtions of classified information. As Chief Fourth Circuit Judge William Traxler, writing for the panel majority on this issue, describes it,
Chapter 9 of the book, entitled “A Rogue Operation,” reveals details about Classified Program No. 1. J.S.A. 219-32. In the book, Risen entitled the program “Operation Merlin” and described it as a “failed attempt by the CIA to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran.” J.A. 722. Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.
While the opinion involves two other issues, involving the suppression of the testimony of two other government witnesses and the withholding of the identities of several covert CIA operatives under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 - - - issues on which Chief Judge Traxler wrote a concurring and dissenting opinion - - - the nonexistence of a reporters' privilege is the most central from a constitutional perspective. The majority opinion was unequivocal:
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.
The majority reasoned that this result was mandated by the United States Supreme Court's 1972 opinion in Branzburg v. Hayes. It did not credit the argument that Justice Powell’s concurring opinion in Branzburg made Branzburg's holding less clear. Instead, it rejected Risen's contention that Powell's concurrence "should instead be interpreted as a tacit endorsement of Justice Stewart’s dissenting opinion, which argued in favor of recognizing a First Amendment privilege in criminal cases that could be overcome only if the government carries the heavy burden of establishing a compelling interest or need." The majority stated that just as in Branzburg, Risen has
“direct information . . . concerning the commission of serious crimes.” Branzburg, 408 U.S. at 709. Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.
That the crime is the leak itself does not seem to be noteworthy. The majority likewise rejected the notion that there was any common law privilege.
For Judge Robert Gregory, dissenting, principles of a free press as expressed in the First Amendment should include a reporter's privilege, that should then be evaluated under a balancing test:
Protecting the reporter’s privilege ensures the informed public discussion of important moral, legal, and strategic issues. Public debate helps our government act in accordance with our Constitution and our values. Given the unprecedented volume of information available in the digital age – including information considered classified – it is important for journalists to have the ability to elicit and convey to the public an informed narrative filled with detail and context. Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government.
For Judge Gregory, Justice Powell's concurring opinion modifies the holding of Branzburg. Recognizing that the "full import of Justice Powell’s concurrence continues to be debated," Judge Gregory notes that appellate courts have subsequently hewed closer to Justice Powell’s concurrence – and Justice Stewart’s dissent – than to the majority opinion, and a number of courts have since recognized a qualified reporter’s privilege, often utilizing a three-part balancing test." He thus finds it "sad" that the majority "departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters." Judge Gregory would also recognize a "common law privilege protecting a reporter’s sources pursuant to Federal Rule of Evidence 501."
While there are statutory proposals and provisions aplenty, the continuing confusion over the meaning of Branzburg and the existence of a reporter's First Amendment or even common right to retain confidentiality of sources does call for resolution. The Fourt Circuit's divided opinion squarely presents the issue for the Supreme Court .
Friday, July 19, 2013
First Amendment Whistleblowers? Government Employees Reveal Trayvon Martin's Cell Phone and Tsarnaev's Surrender Photos
While the trial of famous whistleblower Bradley Manning continues and the fate of even-more-famous whistleblower Edward Snowden remains unresolved, two other government employee whistleblowers involved in high profile cases have been terminated from employment and possibly implicate Garcetti v. Ceballos. Decided in 2006, Garcetti denied First Amendment protections to a prosecutor who testified for the defense regarding his misgivings about the veracity of an affidavit used to obtain a search warrant and then suffered adverse employment actions. Recall that earlier this year the United States Supreme Court declined to grant certiorari in two cases presenting a conflict in the Circuits regarding interpretations of Garcetti.
The reported facts involving Ben Kruidbos, a director of information technology for the prosecutor's office in the racially-charged and controversial prosecution of George Zimmerman for the death of Trayvon Martin, are closely analogous to Garcetti.
[image of Trayvon Martin by Shepard Fairey via]
Kruidbos testified at an early June pre-trial hearing that prosecutors failed to turn over evidence extracted from Martin's cell phone to the defense and thus violated the mandate of Brady v. Maryland. After the prosecution's closing arguments, Kruidbos was terminated in a letter that mentioned numerous flaws, including wrongly retaining computer records. Kruibdos will reportedly bring a whistleblower action under state law; but if he raises a First Amendment claim, Garcetti will be an important obstacle.
The reported situation involving police photographer Sergeant Sean Murphy is less analogous to Garcetti and may even be closer to the classic 1968 case of Pickering v. Board of Education in which the teacher Pickering wrote a letter to the newspaper. Yet unlike Pickering, Sgt. Murphy was not acting as an ordinary citizen, but revealing hundreds of images that he possessed by virtue of his public employment.
[Rolling Stone Cover via]Murphy, reportedly "incensed by the controversial Rolling Stone magazine cover for a story about accused Boston Marathon bomber Dzhokhar Tsarnaev," has reportedly now been relieved of his duties with a hearing pending. Whatever happens to the police photographer, it may now be that the controversial Rolling Stone cover photo (one that was also published on the front page of the NYT) has been eclipsed by even more controversial photos.
Both Kruidbos and Murphy would make terrific in-class exercises or discussions, especially if used together, as a means of exploring First Amendment protections for government employees.
Wednesday, July 17, 2013
The Electronic Frontier Foundation, on behalf of a bevy of organizations, filed suit against the NSA in the Northern District of California to stop its surveillance program and to return any information retrieved. The complaint in First Unitarian Church of Los Angeles v. NSA argues that the "Associational Tracking Program"--the surveillance program that received so much recent attention with the release of Foreign Intelligence Surveillance Court Judge Roger Vinson's ruling ordering the disclosure of domestic phone records--violates the organizations' and their members' First, Fourth, and Fifth Amendment rights.
We previously posted on EPIC's case taking a different route--a petition for a writ of mandamus directly with the Supreme Court.
Monday, July 15, 2013
Amy Feldman over at Constitution Daily writes that flashing headlights enjoy some First Amendment protection. In particular, Feldman says that courts in Florida, Utah, and Tennessee have all ruled that flashing headlights are protected speech, and that a headlight flasher can't be prosecuted for obstructing justice for flashing headlights to alert oncoming traffic of a speed trap.
Still, Feldman says that headlight flashers' civil claims against the police for money damages for violating their First Amendment rights have been far less successful.
Friday, July 12, 2013
A three-judge panel of the Fourth Circuit upheld the employer mandate in the Affordable Care Act. The ruling in Liberty University v. Lew deals a significant blow to challengers of the Act's requirement that large employers provide affordable health care coverage to full-time employees and dependents or pay a fine. Unless and until it's appealed to the full Fourth Circuit and the Supreme Court--and unless and until one or the other reverses--the ruling upholds the employer mandate.
The ruling is notable, because it says that Congress had authority under the Commerce Clause to enact the employer mandate. (Recall that five Justices on the Supreme Court said last summer in National Federation of Independent Business v. Sebelius that Congress exceeded its authority under the Commerce Clause to enact the individual mandate.) What's the difference? See below.
The case is a hold-over from the Supreme Court's ruling last summer in National Federation of Independent Business v. Sebelius. Recall that the Court in that case held that the Anti-Injunction Act did not bar a the suit challenging the individual mandate, and that the individual mandate was a valid exercise of Congress's taxing power. The Court also remanded Liberty University to the Fourth Circuit for a ruling consistent with NFIB. (The Fourth Circuit previously held that the Anti-Injunction Act deprived it of jurisdiction to rule on the merits and dismissed the case.)
The Fourth Circuit followed NFIB's lead and ruled that the employer mandate (like the individual mandate in NFIB) was not a "tax" for purposes of the Anti-Injunction Act. (The court also ruled that Liberty University had standing to lodge its pre-enforcement challenge of the employer mandate, and that the individual named plaintiffs had standing to challenge the individual mandate.)
On the merits, the court ruled that the employer mandate is a valid exercise of Congress's Commerce Clause authority. (Recall that five members of the Supreme Court in NFIB said that the individual mandate exceeded Congress's Commerce Clause authority, even if it fell within Congress's taxation power.) What's the difference between the employer mandate and the individual mandate? In short, unlike individuals who have not purchased health insurance, employers operate in interstate commerce, and health insurance is part of their employees' compensation package, which itself is regulable under the Commerce Clause. The Fourth Circuit explained:
To begin, we note that unlike the individual mandate . . . the employer mandate does not seek to create commerce in order to regulate it. In contrast to individuals, all employers are, by their very nature, engaged in economic activity. All employers are in the market for labor. And to the extent that the employer mandate compels employers in interstate commerce to do something, it does not compel them to "become active in commerce," [NFIB, emphasis in original]; it merely "regulate[s] existing commercial activity," id., i.e., the compensation of employees . . . .
Further, contrary to Liberty's assertion, the employer mandate does not require employers to "purchase an unwanted product." . . . Although some employers may have to increase employee compensation (by offering new or modified health insurance coverage), employers are free to self-insure, and many do.
(Interestingly, the court dropped a footnote, note 7, that says, "We express no opinion as to whether the limitation on the commerce power announced by five justices in NFIB constitutes a holding of the Court." We covered that topic here.)
Following NFIB, the court also upheld the individual mandate under Congress's taxing power, and applied that ruling to uphold the employer mandate under Congress's taxing power.
The court also rejected the plaintiffs' religion claims--based on the First and Fifth Amendments (equal protection) and the Religious Freedom Restoration Act.
July 12, 2013 in Cases and Case Materials, Commerce Clause, Congressional Authority, Establishment Clause, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion, Taxing Clause | Permalink | Comments (0) | TrackBack (0)
Thursday, July 11, 2013
Should a for-profit corporation have free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment as the en banc Tenth Circuit held in Hobby Lobby, Inc. v. Sebelius?
Hamilton ultimately contends that RFRA, at least as interpreted by the Tenth Circuit, is unconstitutional under the Establishment Clause in that it means that "large for-profit employers, who may not discriminate in hiring based on religion, can still coerce their employees into following their religious beliefs."
Hamilton's even larger argument, however, involves the relationship between religion and capitalism in our constitutional democracy. Assume, she argues, that Hobby Lobby and similar companies
assert that they don’t mind losing money from those who don’t share their religious beliefs. Or to put it another way, they really only want business from those who share their religious beliefs. That is the slippery slope on which the Tenth Circuit has set free exercise reasoning.
That isn’t capitalism, which, when working as it should, is driven by the quality of products and competition on price, regardless of the political or religious beliefs of the producer and purchaser. It is Balkanization, and a first step on the path to the religious wars we in the United States have avoided so far.
Yet perhaps the owners of Hobby Lobby is not anticipating that consumers will actually know that it is an entity with specific religious beliefs rather than simply a store selling sequins?
Whatever the beliefs of the owners of Hobby Lobby, however, Hamilton's column is a must read on the contentious issue of recognizing religious freedoms of for-profit companies.RR
Tuesday, July 9, 2013
To register a handgun in the state of New York, the fee is $3-10. However, a New York statute, New York State Penal Law § 400.00(14), allows the City of New York and the adjoining county of Nassau on Long Island to set and collect a different fee. The challengers argued that this statutory provision violated equal protection. Additionally, the challengers argued that the fee set by New York City - - - $340 for a three year license - - - violated the Second Amendment. In its opinion in Kwong v. Bloomberg, a unanimous Second Circuit panel upheld both the state statute and the city regulation, affirming the district judge.
Judge Jose Cabranes rejected the argument that the $340 fee set by NYC Admin. Code § 10-131(a)(2) places too great a burden on their Second Amendment rights. Following the path set by other judges, the Second Circuit held that the Supreme Court’s First Amendment fee jurisprudence provides the appropriate foundation for analyzing the constitutionality of fees under the Second Amendment. Here, the court held that the "undisputed evidence" demonstrated that "the $340 licensing fee is designed to defray (and does not exceed) the administrative costs associated with the licensing scheme."
Moreover, the mere fact that the license is more expensive does not make it a substantial burden on one's Second Amendment rights. The opinion interestingly includes a "see also" and cites Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) including this quote in the parenthetical: (“The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to [exercise the right] cannot be enough to invalidate it.”)
Even if the NYC law were subject to intermediate scrutiny - - - as the concurring opinion by Judge John Walker asserts - - - and as the Second Circuit previously applied to a concealed handgun law - - - the fee would still survive, as Judge Walker agrees.
As for the equal protection claim against the state statute allowing differential fees, the court rejected the argument that because a fundamental right is at stake, the state statute merited strict scrutiny. The court held that a fundamental right was not "burdened" and further that geographic classifications are not suspect. Applying rational basis, the court found it easily satisfied.
Again, Judge Walker concurring would apply intermediate scrutiny, and again, he found that the higher fee would survive the heightened level of scrutiny.
The disagreement amongst the judges regarding the standard is thus of no moment - - - at least in this case. But further litigation about what constitutes a burden on a Second Amendment rights will likely continue.
Monday, July 8, 2013
It's summer in North America and that means scholarship-time for legal academics. No matter what the subject of your in-progress/forthcoming/almost finished article, take time to read a brief essay by Ronald Collins and Lisa Lerman, Disclosure, Scholarly Ethics, and the Future of Law Reviews: A Few Preliminary Thoughts By Ronald K.L. Collins & Lisa Lerman, 88 Wash. L. Rev. 321 (2103), available here.
They argue that your author's footnote might need a bit of expansion to disclose any direct or indirect compensation or involvement in your subject. Disclosure is not the norm in law reviews, especially when it comes to academics as opposed to practioners. The comparison is even more stark when it comes to the practices in other disciplines.
But their suggestion, if rare, is hardly new. Indeed, they quote from the AALS "Statement of Good Practices by Law Professors in the Discharge of their Ethical and Professional Responsibilities":
A law professor shall disclose the material facts relating to receipt of direct or indirect payment for, or any personal economic interest in, any covered activity that the professor undertakes in a professorial capacity . . . . Disclosure of material facts should include: (1) the conditions imposed or expected by the funding source on views expressed in any future covered activity and (2) the identity of any funding source, except where the professor has provided legal representation to a client in a matter external to legal scholarship under circumstances that require the identity to remain privileged under applicable law. If such a privilege prohibits disclosure the professor shall generally describe the interest represented.
And, perhaps less surprising perhaps, it's something Justice William O. Douglas recommended almost half of a century ago.
They provide some scintillating examples worth consideration. These might make you reflect not only on your own ethical responsbility to disclose, but perhaps also upon the missing disclosures in sources upon which you rely, as in the Second Amendment area which we discussed.
And it is certainly worth passing on to your school's law review editors.
A Fourth Circuit panel issued its opinion in Sons of Confederate Veterans, Virginia Division v. City of Lexington, Virginia holding that Lexington's "flag pole" ordinance limiting flags to that of the nation, state, and city was constitutional under the First Amendment. The Sons of Confederate Veterans argued on appeal that the City was motivated in enacting the ordinance by its desire to bar the Confederate flag from its flagpoles. For the court, even if that were true, it was of no constitutional moment. The flag poles had been a "designated public forum," but the
Ordinance has the effect of closing a designated public forum — the perpetual availability of which was never guaranteed — to all private speakers. The City was entitled to listen to the public and to enact ordinances that are constitutional in text and in operation, and that are supported by the electorate.
The court quickly added, however, that
the Ordinance specifies that it does not “prohibit or curtail individuals from carrying flags in public and/or displaying them on private property.” Lexington City Code § 420-205(C) (2011). As a result, all private groups and individuals remain free to express their flag-bound messages in other ways.
The limitation of the flag poles - - - or flag standards - - - may or may not be operative in a reported plan by a Louisiana legislator to ban the rainbow flag (aka LGBT pride flag) from government property. The prompting incident was reportedly a rainbow flag that was "hoisted" on a government flag pole to less than universal acclaim.
If the Louisiana legislators need some advice about drafting a constitutional ordinance, they might have a look at Sons of Confederate Veterans. A ban on all nongovernmental flags, including the rainbow flag, on government property? Violative of the First Amendment. A ban on all nongovernmental flags on Government-owned flag poles? Likely to survive a First Amendment challenge. And - - - just to be clear - - - a ban on rainbow flags while allowing Confederate flags? Not constitutional.
And a government ban specifically on the "rainbow Confederate flag" ???
Wednesday, July 3, 2013
The Fourth Circuit en banc today issued its opinion in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore reversing the district court's granting of a preliminary injunction against the ordinance requiring a limited-service pregnancy center "provide its clients and potential clients with a disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services." Essentially, the city's concern is that certain pregnancy centers can be mistaken (or even masquerade as) reproductive medical centers but only offer specific counseling that women not terminate their pregnancies.
The challengers argued that the ordinance was facially unconstitutional under the First Amendment and the district judge granted summary judgment in their favor. For the en banc majority, however, "the summary judgment decision was laden with error, in that the court denied the defendants essential discovery and otherwise disregarded basic rules of civil procedure."
The majority opinion, authored by Judge King, in which Chief Judge Traxler and Judges Motz, Duncan, Keenan, Wynn, Floyd, and Thacker joined, stressed that its conclusion was procedural and that it did not express a view on the ultimate merits. Nevertheless, as in most cases, the merits and procedural issues are intertwined. For example, one of the crucial issues here is whether the speech being regulated is commercial or not. As the majority stated,
The district court’s denial of discovery and failure to adhere to the summary judgment standard marred its assessment of, inter alia, the City’s contention that the Ordinance targets misleading commercial speech and thus is subject to rational basis (rather than strict) scrutiny. While the strict scrutiny standard generally applies to content-based regulations, including compelled speech, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-42 (1994), less-demanding standards apply where the speech at issue is commercial. Disclosure requirements aimed at misleading commercial speech need only survive rational basis scrutiny, by being “reasonably related to the State’s interest in preventing deception of consumers.” Zauderer v. Office of Disciplinary Counsel of the Supreme Court, 471 U.S. 626, 651 (1985) (explaining that, “because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception” (alterations and internal quotation marks omitted)); accord Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1339-40 (2010).
There are two dissenting opinions. The first, by Judge Wilkinson, derides the majority for failing to acknowledge "the dangers of state-compelled speech." He notes that the Supreme Court "only recently reiterated" the importance of the doctrine in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., the prostitution pledge case. Wilkinson accuses the majority of being enchanted with "extended procedures" and argues that it only authorizes a "fishing expedition" against the plaintiffs. The second dissent, authored by Judge Niemeyer, and joined by Judges Shedd, and Agee, as well as Wilkinson, contends that the ordinance governs noncommercial speech, mandates specific speech, and should be subject to strict scrutiny.
The judges did agree - - - amongst themselves and with the district judge - - - that St. Brigid’s Roman Catholic Congregation Incorporated and Archbishop William E. Lori lacked standing to be co-plaintiffs, but this issue is a divisive one. Indeed, there is an overdue Second Circuit panel opinion in the appeal of a district judge's conclusion that NYC's similar Local Law 17 was unconstitutional.
Moreover, the First Amendment challenges to pregnancy center "disclosures" as compelled speech mirror the First Amendment challenges to abortion provider "disclosures" as compelled speech, as in statutes from Kansas and South Dakota. The government's interest in preventing "misleading" speech or in providing full disclosure is exceedingly similar in both situations.
For scholars (including student scholars) looking for a terrific topic combining the First Amendment and reproductive rights, theses cases offer much.
Kansas' new abortion law that took effect July 1 - - - running 70 pages and known as Kansas HB 2253 - - - has already been the subject of a constitutional challenge. HB 2253 seeks to restrict abortion and other reproductive services in numerous ways in accord with the legislative finding that "the life of each human being begins at fertilization." The Complaint filed by the local Planned Parenthood organization, Comprehensive Health of Planned Parenthood of Kansas and Mid- Missouri, Inc. (CHPPKM) specifically challenges two provisions of the law on First Amendment grounds.
Planned Parenthood v. Rounds. Even though there was some "uncertainty" as to the reliability of the studies purporting to show a link between abortion and suicide ideation - - - including the very meaning of the word "risk" - - - the majority in Rounds found that the provision survived by giving great deference to South Dakota. One question will be whether the Tenth Circuit will be as deferential as the majority in its sister circuit or be as rigorous as the dissenting judges in Rounds.
Second, the complaint challenges the provision that compels CHPPKM "to place on the homepage of its public website both a hyperlink to a government website that contains the government’s viewpoint on abortion, and a scripted message of endorsement of the content on the government’s website, even where CHPPKM disagrees with the message." In light of last month's decision by the United States Supreme Court in United States Agency for International Development v. Alliance for Open Society International, Inc., - - - the prostitution pledge case - - - invalidating a requirement that organizations that received direct funding could not be compelled to espouse views that were not their own, this claim seems on firm First Amendment footing. The distinction is a factual one - - - the hyperlink - - - although interestingly CHPPKM contends in its complaint this further complicates the matter because it cannot be expected to constantly monitor the government site. Certainly, however, much of the language and reasoning in Chief Justice Roberts' majority opinion for the Court solidifies compelled speech doctrine. And interestingly, compelled speech doctrine is being argued by anti-abortion organizations to challenge laws requiring "pregnancy crisis centers" to disclose the fact that they are not medical facilities. ( For example, a district judge held NYC's Local Law 17 unconstitutional in 2011; an opinion from the Second Circuit has been anticipated since oral argument over a year ago). UPDATE: The Fourth Circuit's en banc opinion July 3 on a Baltimore ordinance.
A popular discussion of the controversy, including some of my own thoughts, is available on "KC Currents" broadcast by KCUR, a local NPR station.
Tuesday, July 2, 2013
District Judge Finds No Government Liability in "Occupy Everything" Jacket Arrest in Supreme Court Building
Federal District Judge for the District of Columbia, Amy Berman Jackson, has granted summary judgment for the government in her opinion in Scott v. United States in which Scott had alleged that the United States Supreme Court Police violated clearly established First Amendment principles when they arrested him for unlawful entry while he was wearing a jacket bearing the message “Occupy Everywhere” in the Supreme Court building.
Recall our discussion in January 2012 when Scott was arrested (including video). Since then, as we have also discussed, the federal statute prohibiting certain displays (including words) has been held unconstitutional by a different DC Federal District Judge, at least as to the plaza, and the Supreme Court quickly amended its regulation.
Scott sought damages and expungement of his record, alleging false arrest and imprisonment. Judge Jackson rejected this claim finding that there was probable cause to arrest Scott, and even if there was not, the officers had a reasonable good faith belief that there was probable cause. Jackson concludes that Scott's jacket "fell squarely" within the plain language of the "display clause" of 40 USC §6135:
he was displaying a device (his jacket) in the building which had been adapted to bring public attention to the “Occupy” movement. See Kinane v. United States, 12 A.3d 23, 25–26 (D.C. 2011) (affirming the conviction of protestors for violating the display clause of section 6135 where the protestors entered the Court with shirts that read, “Shut Down Guantanamo”); Potts v. United States, 919 A.2d 1127, 1130 (D.C. 2007) (holding that an article of clothing can be a “device” within the meaning of section 6135). Since Scott was violating the display clause, he had no authority to remain in the Supreme Court building after the Supreme Court Police told him to cover the display or leave. Therefore, Scott’s violation of section 6135 provided the “additional specific factor” that the Supreme Court Police needed to establish probable cause to arrest him for unlawful entry.
Judge Jackson rejected Scott's attempts to distinguish his situation and his reliance upon that other famous jacket case, Cohen v. California. The issue of whether the police officers could reasonably rely on the state of the law may make Scott's claim difficult to win on appeal. However, the future constitutionality of the so-called display clause criminalizing a person wearing a jacket with words such as "Occupy Everything" is far from settled.
Friday, June 28, 2013
Tenth Circuit Recognizes For-Profit Corporations as Having Religious Freedom and Free Exercise Rights
In the contentious and closely-watched case of Hobby Lobby, Inc. v. Sebelius, the Tenth Circuit has rendered its opinion concluding that a for-profit corporation has free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment.
Hobby Lobby challenges the constitutionality of the so-called "contraception mandate" under the Affordable Care Act that require health insurance plans to provide contraception coverage to employees. We've previously discussed the issue and the circuit split here.
The federal district judge had rejected Hobby Lobby's claim, noting that it was a for-profit completely secular company - - - it is a corporation operating 514 arts and crafts stores in 41 states. The federal district judge also denied the injunction as to the for-profit corporation Mardel, a Christian supply and bookstore chain, and to the family owning both the corporations through a management trust. Hobby Lobby sought extraordinary relief from the United States Supreme Court after a Tenth Circuit panel declined to issue a stay; Justice Sotomayor in her role as Tenth Circuit Justice then rejected the claim, ruling that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."
The Tenth Circuit granted the request for initial en banc review - - - thus, there is no Tenth Circuit panel opinion - - - and issued a lengthy set of opinions from the eight judges, one judge being recused. The majority opinion on pages 8-9 details the rationales of the individual judges. But the essential division is 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under RFRA and the First Amendment. The majority concluded there was such a right and that the corporations demonstrated a likelihood of success for prevailing on the merits.
Judge Timothy Tymkovich's more than 65 page opinion for the majority concluded that
Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.
Only a plurality of judges would have resolved the other two preliminary injunction factors - - - balance of equities and public interest - - - in Hobby Lobby and Mardel’s favor, thus the remand.
The majority, however, held
as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.
(emphasis added). The opinion often conflates RFRA (which recall, is only applicable as to federal laws) and First Amendment. However, in specifically considering First Amendment doctrine, the majority's argument derived from two strands. First, it noted that individuals may incorporate for religious purposes and keep their Free Exercise rights - - - such as churches, citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (holding that a “not-for-profit corporation organized under Florida law” prevailed on its Free Exercise claim). Second, it then noted that "unincorporated individuals may pursue profit while keeping their Free Exercise rights," citing United States v. Lee, 455 U.S. 252 (1982) (considering a Free Exercise claim of an Amish employer); Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion) (considering a Free Exercise claim by Jewish merchants operating for-profit).
It then characterized the government's argument as being that these "Free Exercise rights somehow disappear" when "individuals incorporate and fail to satisfy Internal Revenue Code § 501(c)(3)." The majority found this distinction to be one that cannot be supported by First Amendment doctrine. It did, however, implicitly limit the facts under which for-profit corporations could be found to have free exercise rights:
The government nonetheless raises the specter of future cases in which, for example, a large publicly traded corporation tries to assert religious rights under RFRA. That would certainly seem to raise difficult questions of how to determine the corporation’s sincerity of belief. But that is not an issue here. Hobby Lobby and Mardel are not publicly traded corporations; they are closely held family businesses with an explicit Christian mission as defined in their governing principles. The Greens, moreover, have associated through Hobby Lobby and Mardel with the intent to provide goods and services while adhering to Christian standards as they see them, and they have made business decisions according to those standards. And the Greens are unanimous in their belief that the contraceptive-coverage requirement violates the religious values they attempt to follow in operating Hobby Lobby and Mardel. It is hard to compare them to a large, publicly traded corporation, and the difference seems obvious.
Thus, the majority stated that it did not share any concerns that its holding would prevent courts from distinguishing businesses that are not eligible for RFRA’s - - - and presumably the First Amendment's - - - protections.
While the analysis of substantial burden that follows is important, it is the holding that a secular for-profit corporation has a sincerely held religious belief that entitles it to assert a free exercise claim is the centerpiece of the controversy.
Indeed, Chief Judge Briscoe, joined by Judge Lucero, call the majority's opinion on this point
nothing short of a radical revision of First Amendment law, as well as the law of corporations. But whatever one might think of the majority’s views, the fact remains that they are wholly unsupported by the language of the Free Exercise Clause or the Supreme Court’s free exercise jurisprudence, and are thus, at best, “considerations for the legislative choice.”
The ability of for-profit corporations to have Free Exercise rights under the First Amendment - - - along with their Free Speech rights as articulated in the still-controversial Citizens United v. FEC, decided in 2010 and liberally cited in Hobby Lobby - - - is highly contested. This may certainly be going (back) to the United States Supreme Court.
June 28, 2013 in Campaign Finance, Congressional Authority, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Privacy, Religion, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 25, 2013
Recall the lawsuits filed against the IRS alleging viewpoint discrimination prohibited under the First Amendment for targeting "conservative" and "tea party" groups' application under 26 U.S.C. § 501(c) for tax exempt status?
New developments may make those allegations much more difficult to prove. The IRS "Be On the Look Out" - - - BOLO - - - lists also included groups that could be described as "Progressives" :
Common thread is the word “progressive.” Activities appear to lean toward a new political party. Activities are partisan and appear anti-Republican. You see references to “blue” as being “progressive.”
And continues that "“progressive” activities appear to show that (c)(3) may not be appropriate."
There is more from the House Ways and Means Ranking Committee Member Sander Levin in an eleven page memo.
Without the viewpoint discrimination claim, there is little to support a First Amendment challenge. There seemingly cannot be a content challenge, for after all, content is at the heart of §501(c) tax exemptions, which may be why some advocate for the provision's repeal.
[image: Carl Guttenberg's 1778 engraving "The Tea-Tax-Tempest" via]
Monday, June 24, 2013
The United States Supreme Court granted certiorari in McCullen v. Coakley in which the First Circuit rejected a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics.
The First Circuit rejected the argument that the First Amendment doctrine governing buffer zones had shifted after the Supreme Court's decisions in Sorrell v. IMS Health Inc. (2011); Snyder v. Phelps (2011); and Citizens United v. FEC (2010).
This grant of certiorari could signal a more robust recognition of First Amendment challenges to buffer zones.