Saturday, December 14, 2013
In a 91 page opinion in Brown v. Buhman, federal district judge Clark Waddoups has concluded that Utah's anti-bigamy statute is partially unconstitutional.
The statute, Utah Code Ann. § 76-7-101, provides:
- (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book ) and are represented by Professor Jonathan Turley, who blogs about the case here.
The judge's scholarly opinion includes a discussion of Edward Said's groundbreaking book Orientalism as a critique of the well-known passage in the United States Supreme Court’s 1879 decision in Reynolds v. United States upholding the criminalization of polygamy by reasoning, in part, that "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people."
Judge Waddoups considers both the due process challenge (applying Washington v. Glucksberg) and the free exercise challenge (applying Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah).
In the due process analysis, the judge specifically found
there is no “fundamental right” to polygamy under Glucksberg. To phrase it with a “careful description” of the asserted right [citations omitted], no “fundamental right” exists to have official State recognition or legitimation of individuals’ “purported” polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State. The fundamental right or liberty interest that was under consideration in Glucksberg is instructive for the analysis of whether the asserted right to polygamy is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”
The judge also found that the criminalization of what it called the "religious cohabitation" portion of the statute did not rise to the level of a fundamental right, extensively discussing Lawrence v. Texas and the Tenth Circuit's limiting interpretation of Lawrence.
However, the judge did find that "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
Complementing this conclusion regarding discriminatory enforcement, the judge's free exercise of religion analysis concludes that while the Utah statute may be facially neutral, the cohabitation prong is not "operationally neutral" and not of general applicability. The judge therefore applied strict scrutiny to the cohabitation prong and easily concluded the statute failed.
As an alternative free exercise analysis, the judge reasoned that the cohabitation prong also merited strict scrutiny because it involved a "hybrid rights" analysis under Employment Division, Department of Human Resources of Oregon v. Smith (1990), given the claims of due process, but also claims that the judge did not extensively analyzes such as free association, free speech, establishment, and equal protection.
Thus, the judge concluded the cohabitation prong of the statute is "unconstitutional on numerous grounds." However, the court explicitly narrowed the constructions of “marry” and “purports to marry" in the statute, so that the Utah statute continues to "remain in force as prohibiting bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage." Not surprisingly then, the judge's opinion does not cite the Supreme Court's opinion last term in United States v. Windsor involving DOMA and same-sex marriage, in which Justice Scalia, dissenting, invoked the effect the decision would have on polygamy. [I've previously discussed the similarities of same-sex marriage and polygamy claims here].
Given the district judge's narrowing construction and the clear constitutional issues with the Utah statute's breadth, it might be possible that the state does not appeal.
December 14, 2013 in Books, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)
Friday, December 13, 2013
With Hobby Lobby (and Conestoga Wood) headed to the United States Supreme Court, there's more and more commentary on the issue of whether a for-profit secular corporation, or its "owners" has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause sufficient to be exempted from compliance with the ACA's so-called contraception mandate requiring most employers to provide employees with health insurance that includes contraception.
Interestingly, after the grant of certiorari, some news reports headlined the religiousity of corporations aspect while others headlined the ACA contraception provision.
The issue has generated many commentaries which often take very polarized positions. Here's a round-up:
* Garrett Epps' Hobby Lobby and the New 'Alienable' Rights in The Atlantic argues that "market triumphalism" is at the heart - - - and will determine - - - cases such as Hobby Lobby. “In case after case, the Supreme Court, and some of the lower courts, have looked at speech cases solely from the point of view of the asset holder.” The abstract “inalienable” framework of rights in the Constitution has been transformed into rights as “assets” that can be treated as property and owned by corporations, especially those that are assumed to “create” the jobs encompassing the rights being asserted by the individuals. "The employees have no right to complain; they sold their rights on the free market."
* Richard Garnett's The Righteousness in Hobby Lobby’s Cause in the LA Times argues that Hobby Lobby should be praised for maintaining and supporting responsible corporate ethics through religious commitment. "Like millions of religious believers and groups," these corporations "reject the idea that religious faith and religious freedom are simply about what we believe and how we pray, and not also about how we live, act and work." At "the heart" of these cases "is the straightforward argument that federal law does not require us to 'check our faith at the door' when we pursue vocations in business and commerce."
* Linda Greenhouse's Doesn’t Eat, Doesn’t Pray and Doesn’t Love, in NY Times contends that the conflict is not really over religion but part of the continuing culture war surround sex. “To the extent that the “contraceptive project” changes anything on the American reproductive landscape, it will be to reduce the rate of unintended pregnancy and abortion. The objection, then, has to be not to the mandate’s actual impact but to its expressive nature, its implicit endorsement of a value system that says it’s perfectly O.K. to have sex without the goal of making a baby. While most Americans surely share this view, given the personal choices they make in their own lives, many nonetheless find it uncomfortable to acknowledge.”
* Dahlia Lithwick's Un-People over at Slate argues that the "conservative crusade to declare everything a “person”—corporations, fertilized eggs—will have disastrous consequences." Lithwick notes the extension from Citizens United: "Corporate Personhood is back! And this time, it’s got God on its side.” She predicts the consequences: "If for-profit secular corporations have religious beliefs, companies run by Christian Scientists can be free to limit medical treatment and those run by Jehovah's Witnesses could object to paying for blood transfusions. Artificially created constructs that exist to shield owners from lawsuits will be able to shield owners from compliance with basic civil rights laws."
* David Catron's SCOTUS, Hobby Lobby, and Media Practice over at The American Spectator argues against the "mainstream media" characterizations: “Those Americans still naïve enough to rely on establishment news outlets for information on current events are being told that Hobby Lobby v. Sebelius and Conestoga Wood Specialties v. Sebelius are part of a sinister conspiracy to restrict access to birth control, endow corporations with religious rights, and escalate the 'war on women.'" Instead, the main question should be this: "Can the government strip individuals of their religious liberties simply because they own a controlling interest in a corporation?"
* Sally Cohn's When Religion and Liberty Collide over at the Daily Beast draws on originalist interpretations of the First Amendment's religion clauses that "freedom *from* religion" is central. She contends that "the settlers who came to America wanted to express their own religious beliefs, but an equal if not greater motivation was escaping the reality of religious tyranny embedded in government," and to "put it mildly, our forbearers would be appalled by how right-wing conservatives are trying to use government to force their religious views on all of us."
* David Skeel's Corporations and Religious Freedom in WSJ argues that even if corporate religious rights are recognized, that doesn't mean there will be a flood of cases. Corporations will need to meet the sincerity requirement "and sincerity is much easier to determine with a corporation than with an individual, since there is no need to look inside the heart of a corporation. If a corporation's certificate of incorporation requires that it be operated in accordance with religious principles, or if its board of directors has established a clear and explicit practice of pursuing religious objectives, it would qualify. Otherwise it would not."
* Clarence Page's Law Protects All Faiths, Not All Behavior Op-Ed in The Chicago Tribune discusses the legal landscape in accessible terms, ultimately relying upon the belief/practice distinction as articulated "in the 1878 test case of the bigamy conviction of George Reynolds, the personal secretary to Mormon leader Brigham Young."
* Angelo Young's The Same Religious Conviction That Has Hobby Lobby Challenging Obamacare is Also Why Its Full Timers Start at $14 an Hour with Evenings (and Thanksgiving Off) in International Business Times argues exactly what its title captures. Focusing on Hobby Lobby, the article has an interview with David Green, the 73-year-old founder, including Green's comments about salary increases because "Our idea is that we should care about our people. It’s just a basic Christian do-unto-others idea."
* Amanda Marcotte's Christian Conservatives Have Perfected Playing the Victim Card in Salon (via alternet) argues that by the controversy is fueled by conservatives "redefining “religious freedom” to mean its opposite." She says the "hope is that by repeatedly using the term “religious freedom” when they mean “giving the Christian right power to impose their faith on others,” they can eventually drain the phrase of all its meaning and finally, after decades of fighting secularism, make it easier for the religious right to strip away individual protections for religion.”
* Megan McArdle's A Fight Over Contraception Won’t Help Obamacare Op-Ed in Bloomberg contends that the Obama Administration should "pick its battles carefully." She argues that if the ACA is to be " viable for the long term" it will "need the support of folks like Hobby Lobby."
We previously discussed
Ruthann Robson's Puzzling Corporations: The Affordable Care Act and Contraception Mandate originally published over at Jurist, and
Marci Hamilton's Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible, originally published over at Justia.
Bill Keller, Conscience of a Corporation, Op-Ed Column in NYT (February 13, 2013).
Thursday, December 12, 2013
Janet Reitman's excellent article in Rolling Stone entitled "Snowden and Greenwald: The Men Who Leaked the Secrets" and subtitled "How two alienated, angry geeks broke the story of the year" is worth a read, nevermind the tags meant to attract Rolling Stone's target demographic. With this past summer's New York Time magazine article "How Laura Poitras Helped Snowden Spill His Secrets" by Peter Maas, there is much in both of these pieces that merits consideration.
True, the articles are journalistic. Reitman tells us that for "a man living in the middle of a John le Carre' novel, Greenwald has a pretty good life." She then talks about his dogs (also mentioned in the article by Maas). It's the stuff of human interest stories. But Reitman also gives Greenwald's story of lawyering: first with a law firm and then in his own practice, "defending the First Amendment rights of neo-Nazis.":
It was one of Greenwald's prouder accomplishments as an attorney. "To me, it's a heroic attribute to be so committed to a principle that you apply it not when it's easy," he says, "not when it supports your position, not when it protects people you like, but when it defends and protects people that you hate."
Tuesday, December 10, 2013
In its opinion in In the Matter of James Holmes v. Jana Winter, the New York Court of Appeals (NY's highest court) today concluded that it would violate New York's public policy to issue a subpoena directing a New York reporter (Jana Winter) to appear at a judicial proceeding in Colorado in which there is a substantial likelihood that she will be directed to disclose the names of confidential sources or be held in contempt of court.
The underlying facts involve the prosecution of Holmes for the Aurora, Colorado "Batman" movie shooting in which 12 people died and 70 people were wounded. During the investigation, law enforcement took possession of a notebook that Holmes had mailed to a University of Colorado psychiatrist. The court issued a general order limiting pretrial publicity, including law enforcement, as well as a specific order relating to the notebook (as a privileged communication). However, Jana Winter, a reporter employed by Fox News, published an online article entitled "Exclusive: Movie Massacre Suspect Sent Chilling Notebook to Psychiatrist Before Attack." She describes the notebook and states she learned about it from "two unidentified law enforcement sources." Holmes sought sanctions against law enforcement officers and in a court hearing, the 14 officers who had knew about the notebook each testified they did not leak the information and did not know who had. Holmes thereafter sought to subpoena Winter.
Winter argued that the identity of her sources was absolutely privileged under New York's Shield Law, NY Civil Rights §79-h[d], adopted in 1970. The court agreed, noting that
New York has a long tradition with roots dating back to the colonial era, of providing the utmost protection of freedom of the press. Our recognition of the importance of safeguarding those who provide information as part of the newsgathering function can be traced to the case of "John Peter Zenger who . . . was prosecuted for publishing articles critical of the New York colonial Governor after he refused to disclose his source.
Moreover, "Article I, § 8 of the New York Constitution -- our guarantee of free speech and a free press -- was adopted in 1831, before the First Amendment was rendered applicable to the states" and the "drafters chose not to model our provision after the First Amendment, deciding instead to adopt more expansive language"
Every citizen may freely speak, write and publish his or her sentiments on all subjects . . . and no law shall be passed to restrain or abridge the liberty of speech or of the press
As for the Shield Law itself, it expresses the notion that protection of a reporter's sources is "essential to maintenance of our free and democratic society," an idea supported by "several luminaries" of the profession, including "Walter Cronkite, Eric Severied, and Mike Wallace."
New York public policy as embodied in the Constitution and our current statutory scheme provides a mantle of protection for those who gather and report the news -- and their confidential sources -- that has been recognized as the strongest in the nation. And safeguarding the anonymity of those who provide information in confidence is perhaps the core principle of New York's journalistic privilege, as is evident from our colonial tradition, the constitutional text and the legislative history of the Shield Law.
The court also noted that this strong public policy has "played a significant role in this State becoming the media capital of the country if not the world."
The court clarified its holding near the end of the opinion:
And lest there be any confusion, we reiterate that the issue we confront is whether a New York court should issue a subpoena compelling a New York journalist to appear as a witness in another state to give testimony when such a result is inconsistent with the core protection of our Shield Law. Thus, the narrow exception we recognize today, which permits a New York court to consider and apply New York's journalist's privilege in relation to issuance of its own process -- a subpoena -- in a narrow subset of cases, is not tantamount to giving a New York law extraterritorial effect.
The opinion seeks to be somewhat narrow, and it is by a narrow majority, 4-3. Yet it is a resounding articulation of a reporter's right to maintain the anonymity and confidential of sources under state law without reference to the First Amendment.
[image: Juan Gris, Still Life With Newspaper, 1916, via]
Saturday, December 7, 2013
In Craig and Mullins v. Masterpiece Cakeshop, Inc., the subject is not the ACA ("Obamacare") as in the cases recently granted certiorari by the United States Supreme Court, or even a UK hotel or wedding photographs, both of which we discussed here, but a cake. But all these cases raise a similar question: can a secular for-profit corporation, or its owners, be exempted from a law by reason of a religious belief?
The 14 page opinion of the Administrative Law Judge (ALJ) in Masterpiece Cakeshop firmly rejects the arguments of the Cakeshop, reasoning that to accept its position would be to "allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage." The ALJ was not persuaded by the fact that Colorado, where the cakeshop is located, does not recognize same-sex weddings, because the cakeshop owner admitted he would feel similarly if it were a same-sex commitment ceremony or civil union, neither of which is forbidden by state law. Indeed, nothing compels the cakeshop or its owner "to recognize the legality of a same-sex wedding or to endorse such weddings," only, like "other actors in the marketplace serve same-sex couples in exactly the same way they would serve heterosexual ones."
The ALJ rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'"
As to the free exercise claim, the ALJ noted that the regulation at issue distinctly regulated conduct rather than belief. The ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test. The ALJ also rejected the argument "because the public accommodation law not only restricts their free exercise of religion, but also restricts their freedom of speech and amounts to an unconstitutional “taking” of their property without just compensation in violation of the Fifth and Fourteenth Amendments" a hybrid right meriting strict scrutiny was involved. For the ALJ, the "mere incantation" of other constitutional rights does not a hybrid claim create.
The remedy was a cease and desist order rather than damages.
[image: one of the cakes advertised on the Masterpiece Cakeshop website]
Thursday, December 5, 2013
Seventh Circuit Rejects First Amendment Claim of Guidance Counselor's Termination for Writing Sexually Explicit Book
In its opinion in Craig v. Rich Township High School District 227, the Seventh Circuit upheld the ability to terminate a high school guidance counselor for writing and self-publishing a book entitled It's Her Fault.
The book is one of relationship advice for women, based on Carig's experience of counseling and his determination that women's emotionality disadvantages them in their quest to have a relationship with a man. But as the Seventh Circuit panel noted, Craig's book uses "sexually explicit terminology throughout" and includes advice to women on "the wonderful world of submissiveness," as well as delving into "a comparative analysis of the female genitalia of various races." Craig's book referenced his employment as a guidance counselor at the school, citing his interactions with women when “coach[ing] girls basketball, work[ing] in an office where I am the only male counselor, and [being] responsible for roughly 425 high school students a year, about half of whom are females.”
Craig's First Amendment challenge to his termination was dismissed by the federal district judge in Illinois because it failed to address a matter of public concern as required by Pickering v. Board of Education (1968). The Seventh Circuit disagreed, concluding
Viewed as a whole, “It’s Her Fault” addresses adult relationship dynamics, a subject that interests a significant segment of the public. The proliferation of advice columns dealing with precisely this topic is a testament to its newsworthiness.
Nevertheless, the Seventh Circuit panel affirmed the district judge's dismissal, finding that the public employer's interest in promoting efficient and effective public service outweighed the interests of the public employee speaking on a matter of public concern. Craig argued that his speech occurred outside his employment and was unrelated to it, but the Seventh Circuit concluded that Craig took deliberate steps to link his book to his employment. As to the effect on the employer's interests, the panel looked at the classic First Amendment employee cases of Rankin and Connick, as well as Seventh Circuit precedent. The court reasoned:
Defendants reasonably expected that some students would be apprehensive about asking Craig for help given his views on women. For example, Craig asserts that women do not succeed in relationships because of their tendency to “act based on emotion alone instead of emotion plus intellect.” Is it unreasonable to think a female Rich Cen‐ tral student who learned that Craig believed women are not inclined to rational thought may decide against visiting his office for career or other advice? We think not. Nor would it be unreasonable to believe a high school girl would keep her relationship problems to herself knowing that Craig stressed in his book the importance of a woman’s sexual “submissiveness” to her male partner. These portions of “It’s Her Fault” addressed subjects inextricably related to issues for which a female high school student may seek the advice of her guidance counselor. Defendants reasonably concluded that some of these students, knowing Craig’s views on these topics, would decline to ask for his help.
It concluded that the school's interests in "protecting the integrity of counseling services at Rich Central dwarfed Craig’s interest in publishing" his book, “It’s Her Fault.” It stated that although "Craig’s book touched on a matter of public concern, his view of relationships is not the sort of topic of expression that Defendants would require a compelling reason to restrict."
Wednesday, December 4, 2013
Oral Arguments in United States v. Apel: The Military Facility Protest Case as Raising First Amendment Issues
The Court heard oral arguments today in United States v. Apel, an application and First Amendment challenge to 18 U.S.C. § 1382 regarding trespassing on a military base, in light of a pre-existing order barring Apel from Vandenberg Air Force Base in California. There is a dispute whether the property in question is actually part of the military base and the Ninth Circuit reversed the conviction against Apel, as we discussed in our preview here.
Assistant Solicitor General Benjamin Horwich began by arguing that the statute clearly makes it a crime for a person to "reenter a military base after having been ordered not to do so by the commanding officer" and that the Ninth Circuit erred by adding a requirement that the defendant "must be found in a place that, as a matter of real property law, is within the exclusive possession of the United States." Justice Ginsburg quickly noted that the Air Force manual and a JAG opinion had added those criteria, but Horwich argued those sources were advisory rather than binding. The entirety of Horwich's initial argument was directed towards the characteristics of the properties in question, including a discussion of easements.
Indeed, only with Erwin Chemerinsky's argument on behalf of Apel is the subject of the First Amendment broached. Chemerinsky begins his argument making the constitutional link:
This is a case about the right to peacefully protest on a fully open public road, in a designated protest zone. For decades, every lower Federal court, and, for that matter, the United States itself, interpreted 18 United States Code Section 1382 to apply only if there's exclusive Federal possession. Any other interpretation would raise grave First Amendment issues.
While the specter of unconstitutionality to direct statutory interpretation is not rare - - - think of the use of equal protection in the oral argument in last term's Baby Veronica case for example - - - Chemerinsky struggled to direct some Justices attention to the First Amendment. When Chemerinksy echoed Justice Ginsburg's previous mention of Flower v. United States (1972), Justice Kennedy injected that Flower was a First Amendment case and then repeated this observation, telling counsel to concentrate on the statutory argument. Soon thereafter, Justice Kennedy admonished Chemerinsky ,"You're back on the First Amendment case." And then:
JUSTICE SCALIA: You keep sliding into the First Amendment issue, which is not the issue on which we granted certiorari. We're only interested in whether the statute applies.
MR. CHEMERINSKY: But, Your Honor, in interpreting the statute, it must be done so as to avoid constitutional doubts. That's why the First Amendment comes up. Also, of course, as this Court repeatedly has held, Respondent can raise any issue that was raised below to defend the judgment, which is also why the First Amendment is here.
But Your Honor -
JUSTICE SCALIA: You can raise it, but we don't have to listen to it.
Arguments continued about easements, functional possession, and exclusive possession, and a question from Justice Breyer including the fact that he had "looked at the Google maps."
But then a similar colloquy about the relevance of the First Amendment occurred:
MR. CHEMERINSKY: And this goes to Justice Kennedy's question earlier if we are talking about an easement. An easement that is created for a public road inherently has free speech rights attached to it. In fact, many lower court cases have always said an easement for a public road includes the right to use it for speech purposes. That is very different than an easement that exists for purposes of a utility.
JUSTICE SCALIA: It seems to me a First Amendment argument and not an argument that goes to the scope of Section 1382.
MR. CHEMERINSKY: No, Your Honor, because you need to interpret the statute to avoid the constitutional issues. If you interpret the statute to allow excluding speech on this public road easement in the designated protest zone, then interpreting the statute that way would raise grave First Amendment issues.
JUSTICE SCALIA: So you are saying we should read the statute to say it only applies when it doesn't violate the First Amendment. Of course we'd read it that way.
MR. CHEMERINSKY: Of course, you should read it that way.
JUSTICE SCALIA: But not because it has anything to do with the scope of authority of the government. It's what the government can do. I -- I don't know how to read that, that text, in such a way that it will avoid all First Amendment problems. There is no way to do that.
MR. CHEMERINSKY: I disagree, Your Honor. I think that the reason that every lower court and the United States government itself have read "military installation" as exclusive possession is that otherwise it would raise First Amendment problems.
It was on Horwich's rebuttal that the fact that there is a designated protest area, from which Apel's ban is at issue, became clarified. Justice Kagan asked Horwich to explain the "history of this First Amendment area," to which he replied that it was pursuant to litigation settlement, although he was unable to answer Kagan's follow up question about the type of litigation.
On the whole, it's doubtful that the Court will render an opinion in Apel destined for First Amendment treatises or casebooks. On the other hand, any opinion will surely be written in the shadow of First Amendment doctrine and theory.
In its opinion in Minority Television Project v. FCC, the en banc Ninth Circuit upheld the constitutionality of 47 U.S.C. § 399b which prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates.
Writing for the majority, Judge McKeown began by mentioning the showcase programming of public television: "Masterpiece Theater, PBS NewsHour, children’s programs such as Sesame Street and Curious George." In recognition of the "follow the money" reality, Congress recognized that advertising would "change the character of public broadcast programming and undermine the intended distinction between commercial and noncommercial broadcasting." The First Amendment challenge by Minority Television Project, a public television broadcaster, was mounted after it was fined by the FCC for violating the ban on advertising through its "underwriting announcements." While the district judge upheld the statute, a divided Ninth Circuit panel upheld only the ban on for-profit advertising, while two judges issued separate opinions striking down the statute’s ban on issue and political advertising
The en banc majority upheld the constitutionality of the entirety of the bans, applying intermediate First Amendment scrutiny from FCC v. League of Women Voters, 468 U.S. 364 (1984) that nevertheless requires that the restrictions be "narrowly tailored" to further a substantial government interest, as well as a consideration of the sufficiency of less restrictive means, but do fall short of the strict scrutiny standard advanced by Minority Television Project. Applying intermediate scrutiny, the en banc majority held that legislative record was "ample" to support the statute and that the "case 'does not present a close call' requiring us to elaborate on what evidentiary burden Congress bears in enacting a law that implicates First Amendment rights." The majority stated that "substantial evidence before Congress supported the conclusion that the advertising prohibited by § 399b posed a threat to the noncommercial, educational nature of NCE [noncommercial educational] programming and that the additional evidence bears out Congress’s predictive judgment in enacting § 399b." For the majority, "Poking holes in the congressional evidence is hardly a substitute for the scrutiny required of this court."
The most contentious disagreement involved the ban on political and issue advertising. The majority held that Congressional findings regarding commercial advertising included political and issue advertising:
Congress determined that the “insulation of program control and content from the influence of special interests—be they commercial, political or religious”—was necessary. See H.R. Rep. No. 97-82, at 16 (1981). The government’s evidence regarding the enormous sums spent on political advertising confirms Congress’s prediction that, like advertising by for- profit entities, political advertising dollars have the power to distort programming decisions. In 2008 alone, political advertisers spent $2.2 billion. As the campaign season gets longer and longer, commercial television viewers are bombarded with political and issue advertising. Prohibiting only goods and services advertising and allowing issue and political advertising would have shifted incentives and left a gaping hole in § 399b’s protections.
While recognizing that political speech has a preferred place in First Amendment hierarchies of speech, the majority nevertheless found that the Congressional consideration of "commercialization" extended to this type of speech, as well as crediting Congressional consideration of an "experiment" to allow some time, place, and manner restrictions and the Congressional rejection of that option.
Judge Callahan wrote a very brief concurring and dissenting opinion, rejecting the constitutionality of the ban on the political and issues advertising.
Chief Judge Kozinski, joined by Judge Noonan, wrote a lengthy dissenting opinion, arguing that all of the advertising bans should be held unconstitutional. This opinion interestingly begins with what one might call its own sort of advertisement for American exceptionalism and the firstness of the First Amendment:
The United States stands alone in our commitment to freedom of speech. No other nation—not even freedom-loving countries like Canada, England, Australia, New Zealand and Israel—has protections of free speech and free press like those enshrined in the First Amendment. These aren’t dead words on paper written two centuries ago; they live. In many ways, the First Amendment is America. We would be a very different nation but for the constant buffeting of our public and private institutions by a maelstrom of words and ideas, “uninhibited, robust, and wide-open.”
The dissent criticizes the majority's defence to Congress, including discussion from the FCC regarding the experiment, although the majority's opinion, in footnote 10, stated it was "surprised by the dissent’s effort to undermine the Commission’s recommendation with selective excerpts from the Commission’s report." The dissent also criticized the intermediate standard of review as being problematical and unpredictable as to outcome.
Should Minority Television Project seek certiorari, one might wonder whether Justice Sotomayor's appearance on Sesame Street will matter.
The Ninth Circuit earlier this week upheld a congressional ban on paid advertisements for for-profits, issues of public importance or interest, and political candidates. The 9-2 (or 8-1-1) ruling in Minority Television Project, Inc. v. FEC said that the ban, at 47 U.S.C. Sec. 399b, did not violate the First Amendment.
The ruling is most notable for Chief Judge Kozinski's call for the Supreme Court to reconsider its approach to the First Amendment for broadcast media. If Chief Judge Kozinski is reading the tea leaves right, this case may just be the vehicle for the Court to change course on its traditional lower-level review (and therefore greater tolerance) for speech restrictions on broadcast media.
The majority applied the traditional intermediate scrutiny test set out in League of Women Voters and ruled that 399b comfortably satisfied it:
We conclude that substantial evidence before Congress supported the conclusion that the advertising prohibited by Section 399b posed a threat to the noncommercial, educational nature of NCE programming and that the additional evidence bears out Congress's predictive judgment in enacting Section 399b.
Op. at 16. As to fitness:
In contrast [to the statute overturned in League of Women Voters], Section 399b's restrictions are narrowly tailored to the harms Congress sought to prevent. Having documented the link between advertising and programming, Congress reaffirmed the long-standing ban on advertising on NCE stations, but in a more targeted manner. In place of the prior absolute ban on promotional content, which swept within its reach a wide range of speech that did not pose a significant risk to public programming, Congress enacted targeted restrictions that leave untouched speech that does not undermine the goals of the statute. The restrictions leave broadcasters free to air enhanced underwriting, which both the FCC and Congress determined did not pose the same risk to programming as advertisements. Broadcasters may air any promotional content for which consideration was not receieved. Finally, the statute permits non-profit advertisements. As to this latter category, the government offered evidence that non-profit advertisements, which are few in number and perceived by the public as consistent with the mission of public broadcasting, do not pose the same threat as other forms of advertising.
Op. at 26-27.
The court declined the plaintiff-petitioner's invitation to apply strict scrutiny under Citizens United. The court said that "Citizens United was not about broadcast regulation; it was about the validity of a statute banning political speech by corporations." Citizens United did not "overrule decades of precedent sub silentio--especially given that the Court there expressly overruled two other cases with no mention of League of Women Voters or an intent to change the level of scrutiny for broadcasting." Op. at 13.
Judge Callahan concurred as to the prohibition against paid advertisements by for-profits, but dissented (for the same reasons as Chief Judge Kozinski) as to the prohibition on ads on issues of public importance and for political candidates.
Chief Judge Kozinski dissented (joined by Judge Noonan) with a full frontal assault on the intermediate scrutiny standard for speech restrictions in broadcast media. He wrote that the rationale for that standard "no longer carries any force." He said that intermediate scrutiny was too squishy and was undermined for broadcast media by "intervening developments" in the media. He pointed to an earlier Ninth Circuit ruling in which the court defied Supreme Court precedent based on changed circumstances, but was nevertheless affirmed by the Supreme Court. "So I guess the lesson is, we must not get ahead of the Supreme Court--unless we're right."
He obviously thinks he's right in predicting the downfall of intermediate scrutiny here.
Monday, December 2, 2013
Protesting near a military facility such as the Vandenberg Air Force Base in California can be fraught, but contours of the First Amendment as well as the actual property are before the United States Supreme Court in United States v. Apel, to be argued December 4.
The Ninth Circuit per curium opinion subject to the certiorari grant is very brief and does not address the constitutional issue:
Appellant John Apel, who was subject to a pre-existing order barring him from Vandenberg Air Force Base, was convicted of three counts of trespassing on the base in violation of 18 U.S.C. § 1382. After his convictions became final in district court, we decided United States v. Parker, 651 F.3d 1180 (9th Cir. 2011). Parker held that because a stretch of highway running through Vandenberg AFB is subject to an easement "granted to the State of California, which later relinquished it to the County of Santa Barbara," the federal government lacks the exclusive right of possession of the area on which the trespass allegedly occurred; therefore, a conviction under 18 U.S.C. § 1382 cannot stand, regardless of an order barring a defendant from the base. 651 F.3d at 1184.
However, the Ninth Circuit does specifically "question the correctness of Parker," the case upon which it is relying. In Parker, the defendant also raised First Amendment issues, but the panel decided the case on the powers of jurisdiction over the relevant strip of land.
Complicating matters is that the site where Apel was arrested is the fact that not only was Apel on a road that was under concurrent jurisdiction of federal, state, and county governments, but, according to his brief, was also in the area "set aside" for public protests.
Apel has been protesting near the Vanderburg Air Force for 14 years. Here's some great reporting on the background of the case from Scott Fina at the Santa Barbara Independent.
Sunday, December 1, 2013
While the Guy Fawkes mask is identified with the Occupy movement and with "Anonymous," it has reportedly been adopted by at least one protestor against health care reform - a Florida protestor who was also a police officer carrying a hand gun.
As we've previously discussed, First Amendment challenges to the criminalization of wearing a mask have not been very successful, but there are definitely valid constitutional arguments.
For ConLaw Profs drafting exam questions, this could be an interesting issue, especially if it were integrated into the other challenges to the PPACA, such as the recent grant of certiorari in Hobby Lobby and Conestoga Wood, including Judge Rovner's hypotheticals.
More about the arrest and Florida statutory scheme is here.
Wednesday, November 27, 2013
The Treasury Department yesterday announced that it will propose new guidance for social welfare organizations that will better define the requirements for tax-exempt status for those organizations engaged in candidate-related political activities.
The new proposed guidance is aimed at 501(c)(4) organizations, which are organized under the IRC for social welfare purposes, but nevertheless engage in significant political activities. The 501(c)(4) form allows these organizations to fly under the radar while still engaging in politics. For example, 501(c)(4) organizations need not disclose their donors to the FEC, and they need not disclose all of their political activities to the IRS. (The Center for Responsive Politics notes that "Americans for Tax Reform, for instance, told the FEC it spent $15.8 million on independent expenditures in 2012, while it told the IRS it spent just $9.8 million.) An organization can retain its 501(c)(4) status so long as less than half (up to 49%) of its activity is political.
These "dark money" organizations have exerted dramatically increased influence in elections: "While nonprofit organizations spent just $5.2 million on federal elections in 2006, that number rocketed to more than $300 million by 2012," according to The Daily Beast. These organizations include tea party groups and others that the IRS targeted, leading to an IG report earlier this year, which led to the proposed rules.
The proposed guidance is designed to make it easier for the IRS to determine whether a social welfare organization exceeds the threshold for candidate-related political activities by better defining those activities. "These proposed rules reduce the need to conduct fact-intensive inquiries, including inquiries into whether activities or communications are neutral and unbiased." The likely net result is that some or many of these organizations will find that their activities now increase the percentage of "candidate-related political activity" in which they're involved, forcing them either to reduce their political activities or to lose their non-profit status.
The proposed guidance "defines the term 'candidate-related political activity,' and would amend current regulations by indicating that the promotion of social welfare does not include this kind of activity." In particular, the guidance defines certain communications, grants and contributions, and activities closely related to elections or to candidates as "candidate-related political activity."
Citizens for Responsibility and Ethics in Washington has a statement here and a resource page here. The Center for Responsive Politics has a statement here and a resource page, with a nice graphic, here.
Tuesday, November 26, 2013
As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.
In lengthy opinions, the Tenth Circuit en banc in Hobby Lobby essentially divided 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause. The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.
The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, 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), distinguishing free speech from free exercise of religion. Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.
For ConLaw Profs, here are some useful links: A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here; a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here, ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here, a discussion of the district judge's opinion in Hobby Lobby is here, a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.
[image: Supreme Court Justices by Donkey Hotey via]
November 26, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Religion, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Sunday, November 24, 2013
Judge Barbara Crabb (pictured) of the Western District of Wisconsin concluded in her opinion in Freedom from Religion Foundation v. Lew that 26 U.S.C. § 107(2) violates the establishment clause of the First Amendment to the United States Constitution.
The statute at issue provides that:
In the case of a minister of the gospel, gross income does not include—(1) the rental value of a home furnished to him as part of his compensation; or
(2) the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home and to the extent such allowance does not exceed the fair rental value of the home, including furnishings and appurtenances such as a garage, plus the cost of utilities.
I am not aware of any decision in which a majority of the Supreme Court considered whether a claim under the establishment clause would be defeated if the particular benefit at issue were granted to atheists, but still excluded secular groups. At least in the context of this case, there is a plausible argument that the claim would survive. . . .
Regardless, to the extent defendants mean to argue that § 107(2) is constitutional because of an abstract possibility that an atheist could qualify as a minister of the gospel, I disagree. . . .
In this case, no reasonable construction of § 107 would include atheists. In the concurring opinion in Texas Monthly that defendants cite, Justice Blackmun rejected as “facially implausible” an argument that atheistic literature could be included as part of “[p]eriodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith.” Texas Monthly, 489 U.S. at 29 (Blackmun, J., concurring in the judgment). Defendants do not explain why they believe interpreting § 107 to include atheists is any more plausible. Hearings Before the H. Comm. on Ways & Means, 83rd Cong. at 1574-75 (sponsor of § 107(2) stating that purpose of law was to help ministers who are “fight[ing] against” a “godless and anti-religious world movement”).
The issue of whether §107 would plausibly cover atheists was also important to Judge Crabb's conclusion that the plaintiff organization and individual plaintiffs had standing.
Judge Crabb's opinion centers the exclusion of nonbelievers as well as the Lemon test in a way that some current Establishment Clause litigation fails to do, such as the recent oral argument in Town of Greece v. Galloway. The constitutionality of government preference for religion over "irreligion" is an unsettled contention at the heart of Establishment Clause jurisprudence. It ensures the decision will be appealed to the Seventh Circuit.
Friday, November 22, 2013
The Federal Election Commission split 2-2 and thus denied a request from the Tea Party Leadership Fund for an exemption from FEC disclosure requirements of names of individual contributors who contributed more than $200 to the group. The non-action means that the Tea Party Leadership Fund will have to disclose contributors like everybody else subject to the FEC's disclosure requirement. NPR reports here.
The Tea Party argued that its donors are subject to harassment and hostility from government officials and private actors--with over 1,400 pages of evidence. Two Commissioners reportedly agreed, and two disagreed. The two competing draft FEC opinions are here. The Commission, splitting 2-2, didn't accept either. That meant that the Tea Party's request was denied.
The Court upheld disclosure requirements against a facial challenge in Buckley v. Valeo. But it also said that the disclosure requirements might be unconstitutional as against a minor party that could show a "reasonable probability" that its contributors would be subjected to threats, harassment, and reprisals if their contributions were disclosed. Buckley at 69-74 (discussing NAACP v. Alabama).
Courts and the FEC have awarded an exemption under this standard only in very narrow cases, to the Communist Party and the Socialist Workers Party, minor parties that "rarely have firm financial foundation." On the other hand, a court in 2011 denied an exemption to ProtectMarriage.com, a group that raised $30 million and supported California's Prop 8 (banning same-sex marriage in the state). (Doe v. Reed, the Court's 2010 case, involved disclosure, but by way of a state's Public Records Act, not the FEC regs.)
Tuesday, November 19, 2013
Among the materials released today as we discussed earlier, is the 87 page opinion by the Presiding Judge of the Foreign Intelligence Surveillance Court, again difficult to name or cite given that the usual caption material is redacted:
But the opinion's footnote 27 with the portions redacted - - - and not redacted - - - does deserve special notice:
"For ease of reference, the term XXXXXXXXXXXXX is used to mean XXXXXXXXXXXXXX."
Monday, November 18, 2013
In its routine order list today, the Court's list of "MANDAMUS DENIED" included "13-58 - IN RE ELECTRONIC PRIVACY INFORMATION CENTER."
The petition for writ of mandamus and prohibition or writ of certiorari was filed by the Electronic Privacy Information Center and essentially sought review of an Order from the Foreign Intelligence Surveillance Court. The order redacts the names of the parties from whom the "tangible things" are sought, but the petition describes the order as compelling "Verizon Business Network Services to produce to the National Security Agency, on an ongoing basis, all of the call detail records of Verizon customers."
As one of its Questions Presented, the petition stated:
Whether the Foreign Intelligence Surveillance Court exceeded its narrow statutory authority to authorize foreign intelligence surveillance, under 50 U.S.C. § 1861, when it ordered Verizon to disclose records to the National Security Agency for all telephone communications “wholly within the United States, including local telephone calls.”
The import of the Supreme Court's denial is both trivial and momentous. On the one hand, there is little if anything to be read into the Court's refusal to exercise its highly discretionary power to grant a petition for a writ as it does in 1% of cases. On the other hand, there is something to be inferred about the Court's interest in and willingness to supervise the unusual FISA given constitutional rights.
But the Court's failure to accept the case certainly does not mean the underlying issues will be so easily dispatched.
Daily Read: "Reassignment" by Toby Heytens (or was it so unusual that the Second Circuit reassigned the "Stop and Frisk" cases?)
As we discussed last week, in In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin and as to the removal of Judge Scheindlin, wrote that reassignment "while not an everyday occurrence, is not unusual in this Circuit" and in support cited nine cases from 1999 - 2011, and discussed that it occurs in other circuits.
Would that the panel had had Professor Toby Heytens' forthcoming article, simply entitled "Reassignment," available in draft on ssrn. Heytens discusses more than 650 reassignment cases and concludes that circuit courts have
exercised that power in pretty much every type of case imaginable: criminal cases and civil cases, federal question cases and diversity cases, “big” cases and “small” cases. Reassignment has been going on since 1958, but the pace seems to be quickening: more than 20% of the cases in my 55-year dataset were decided during the last five years, at a rate of a little more than one every two weeks during that span.
Although Heytens begins his article discussing a contentious 1996 case from the Second Circuit, involving District Judge Jack Weinstein of New York, he finds that it is another circuit that has by far the most reassignments. Guesses? It's the Seventh Circuit. Interestingly, the Seventh Circuit is the only one to have a circuit rule governing reassignments and thus allows for the circuit panel to simply cite the rule and not provide any rationale for the change. Depending upon one's point of view, this may have obscured the "removal" of Judge Scheindlin or it might have portrayed it as a normal procedure.
Although not focused on Scheindlin, here's what Heytens says about the possible differences:
On one hand, this may seem problematic, because it violates the intuition that public reason-giving is an important part of justifying the exercise of coercive judicial power.
On the other hand, reassignment underscores that there can be virtues in circumspection as well. Appellate court decisions have many audiences: not just the trial judges and the parties, but also other judges, future litigants, and other interested readers. Both the Seventh Circuit’s approach of ordering reassignment via an unexplained reference to a circuit rule that may not mean anything to most readers and the First Circuit’s approach of separating the reassignment order from the underlying opinion can be seen as ways of reducing the salience of the decision to order reassignment and thus make the decision feel less like a public scolding.
In the stop and frisk cases, the public scolding aspect of the Second Circuit's brief initial opinion predominated - - - at least in its reception by the public. Indeed, the revised opinion seemingly took pains to refute that interpretation.
In his conclusion, Heytens identifies the question of "whether more fine-grained methods of measuring judicial ideology reveal any interesting patterns about how appellate judges use reassignment" as one meriting further investigation. Certainly the reassignment of Judge Shira Scheindlin in the highly controversial stop and frisk cases will prove fertile ground. Moreover, the question of disciplining a judge's out-of-court activities, including those that might implicate the First Amendment, should also be added to the mix.
[image of circuit courts of appeal map via]
Sunday, November 17, 2013
The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one. Here's an overview of (and reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.
For those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals. [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].
Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.
In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS. The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.
In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."
In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views. One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement. The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.
These hypotheticals would make a terrific in class discussion. They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.
November 17, 2013 in Cases and Case Materials, First Amendment, Interpretation, Medical Decisions, Opinion Analysis, Recent Cases, Religion, Reproductive Rights, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Rapper and celebrity Kayne West is selling tour t-shirts with an image of the Confederate flag and provoking controversy, as this video shows:
But what if a student wanted to wear such a shirt to public school?
Last month, the United States Supreme Court denied a petition for writ of certiorari to the Fourth Circuit's decision in Hardwick v. Heyward, thus continuing its refusal to hear cases in which circuit courts have upheld the ability of schools to prohibit Confederate flag gear or apparel against a First Amendment claim by students.
Applying Tinker v. Des Moines Independent Community School District, the circuit and district courts have generally held that there is a likelihood of substantial dispruption, whether or not the school has had a history of racial violence, and whether or not there is agreement that the meaning of the Confederate flag is connected to racism or even race.
More about the issue of wearing the Confederate flag in schools is in my column for the London School of Economics blog.