Friday, January 11, 2013

Prostitution Pledge Going to the Supreme Court

The United States Supreme Court today granted certiorari in United States Agency for International Development v. Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction.

450px-Prostituierte_in_Brants_Narrenschiff_(1506)_von_Albrecht_DürerThe case involves a First Amendment challenge to a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq.:

 No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.

In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs.   The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan.

A divided panel of the Second Circuit held the provision unconstitutional in July 2011, affirming the district judge.  The majority found it important that the purpose of the program and the mandated message were not synonymous.  At times, the panel reasoned,

the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.

As we discussed, the Second Circuit refused to grant a rehearing en banc, over a dissent joined by three judges, with an interesting concurring opinion discussing the doctrinal disarray.  This focused the disagreement with the Sixth Circuit and made the issue ripe for certiorari.

Justice Kagan did not participate in the grant of certiorari and will presumably be recused from what promises to be a major First Amendment case of the Term.

RR
[image: Prostituierte in Brants Narrenschiff (1506) von Albrecht Dürer via]

January 11, 2013 in First Amendment, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Daily Read: Ron Collins on Floyd Abrams on the First Amendment

Ron Collins' new book, Nuanced Absolutism: Floyd Abrams and the First Amendment centers lawyering in the development of doctrine and theoretical perspectives of constitutional law. 

800px-Floyd_Abrams_by_David_Shankbone
Abrams (pictured above) is certainly renowned, but is also certainly not a Justice on the Supreme Court, or even a judge.  But Collins reminds us that lawyers do shape our jurisprudence. 

Collins argues that "nuanced absolutism" has become a tenet of First Amendment doctrine that has taken on new life in the decisional law of the Roberts Court, and has been notably argued by Floyd Abrams in a series of cases.

For anyone interested in the First Amendment, this is a must read.

RR
[image via]

January 11, 2013 in Association, Books, First Amendment, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Federal Judge Denies Injunction Against NYC Circumcision Notice Regulation

In a 93 page  Memorandum and Order in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene, Judge Naomi Reice Buchwald has denied a preliminary injunction against NYC's regulation requiring notice and consent for a specific circumcision practice known as MBP, involving oral suction of the wound.  We previously discussed the regulation and the complaint. 

Much of Judge Buchwald's opinion is devoted to the empirical basis supporting the NYC regulation.  As she states, there is a "strong scientific consensus that direct oral suction puts infants at a serious risk of HSV-1 infection,"  yet there is some dispute whether such has actually occured during a Jewish ritual.  Given this dispute, Judge Buchwald ultimately sidelines the scientific studies and focuses on the legal standards.

On the speech claim, Judge Buchwald concludes that "the interpretation of section 181.21 begins and ends with the regulation’s text. The text of section 181.21 does not compel speech, thus plaintiffs are unlikely to prevail on their claim that the regulation violates" the Free Speech Clause. 

On the free exercise claim, Judge Buchwald distinguished Church of Lukumi Babalu Aye v. City of Hialeah (1993), the case involving the ritual slaughtering of animals as a practice of the Santeria religion in which the Court applied strict scrutiny.  The judge concluded that the NYC regulation has "several valid secular objects" and "there is also no indication in the record that it has a discriminatory object against religion in general or Judaism in particular."  Instead, the judge noted that the Department had been involved in extensive education outreach since 2005 to combat the risk of HSV-1 transmission:  "Viewed in the context of this educational outreach, the present regulation appears to be one component of a long-term, multifaceted strategy to reduce the incidence of neonatal herpes and promote informed parental decisionmaking," rather than any targeted hostility to a particular religious practice.

In an interesting construction, Judge Buchwald reframed the free exercise rights of the plaintiffs:

[the] mohels’ free exercise interest is inherently circumscribed by parents’ right to decide whether MBP is performed on their child or not. When mohels’ free exercise interest is framed thusly, one can see how limited the regulation really is: it ensures that a prerequisite to a mohel’s legitimate performance of MBP is in fact met. In light of these considerations, it is clear that the regulation is rationally related to the government’s interest in fostering informed parental decisionmaking.

Thus, the judge terminated her previous stay of the enforcement of the regulation.

RR

January 11, 2013 in First Amendment, Medical Decisions, Opinion Analysis, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, January 10, 2013

Daily Read: Leslie Griffin on Free Exercise and the ACA

Faculty_LeslieGriffin_web110x150In a guest post over at the American Constitution Society blog, Professor Leslie Griffin (pictured) discusses the numerous decisions in challenges to the ACA's mandate of reproductive coverage on the basis of the First Amendment's Free Exercise Clause. 

Griffin argues that in these cases, such as Hobby Lobby, the accomodation of religion could violate the Establishment Clause.  Moreover, she argues that neither selling crafts at a profit nor providing employees with benefits should constitute an "exercise" of religion.

The post helpfully provides a great overview and links to all the cases, useful for anyone working in this area.

Worth a read!

RR

January 10, 2013 in First Amendment, Gender, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

First Circuit Rejects First Amendment Challenge to Clinic Buffer Zone

In its opinion in McCullen v. Coakley, 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 court had previously upheld  a facial challenge. In this as-applied challenge, the First Circuit again rejected the challenge, affirming the district court.

The 32 page opinion, written by Judge Bruce Seyla, a Reagan appointee recognized for his "linguistic talent," is noteworthy for its vocabulary.  For example, Seyla writes that the plaintiffs "advance a salmagundi of arguments, old and new, some of which are couched in a creative recalibration of First Amendment principles." 

The major argument, however, is that First Amendment has shifted after the Supreme Court's decisions in Sorrell v. IMS Health Inc. (2011); Snyder v. Phelps (2011); and Citizens United v. FEC (2010).  Judge Seyla concluded that the plaintiffs' 

impressionistic argument, though ingenious, elevates hope over reason. The propositions for which the plaintiffs cite those cases are no more than conventional First Amendment principles recited by the Supreme Court in the context of factual scenarios far different than the scenario at issue here.

Not surprisingly, the opinion rejected the plaintiffs' "Rumpelstiltskin-like effort to turn straw into gold."  The court concluded that the "Massachusetts statute at issue here is a content-neutral, narrowly tailored time- place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others."

RR

January 10, 2013 in Abortion, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 9, 2013

Daily Read: Bradley Manning and Civil War Precedent

Writing about recent developments in the case of Bradley Manning (pictured), New Yorker commentator Amy Davidson considers how the charge of aiding the enemy by releasing information to the press has precedent in a Civil War prosecution - - - and how the possible sentence now is dramatically different.

480px-Bradley_Manning_US_Army
It's short and worth a read.

RR
[image via]

January 9, 2013 in Fifth Amendment, First Amendment, Foreign Affairs, News | Permalink | Comments (0) | TrackBack (0)

Monday, January 7, 2013

Daily Read: Pam Karlan on the 2011 United States Supreme Court Term

Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read.  Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process.  By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.  

File19105
Professor Karlan (pictured) concludes that this disdain will ultimately bring the Court into disrepute, comparing the present state of affairs unfavorably with the Warren Court:

The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.

Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court.  Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect.  Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist.  The writing is broad and engaging without being precious.  It makes her analysis of the cases even more trenchant, situated in larger themes and trends.

Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress."    And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest.  And it is especially noteworthy that  the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions. 

But this is a must read article before beginning the new semester. 

And after that, read George Wills' Washington Post op-ed, Karlan's response, and responses in the Harvard Law Review Online Forum by Randy Barnett and Stephen Calabresi.

RR
[image of Pamela Karlan via]

January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, January 3, 2013

Second Circuit on Middle Finger

Although the Second Circuit panel opinion in Swartz v. Insogna does not refer to the First Amendment, the court implicitly relies on free expression principles to reverse the district judge and allow the plaintiffs' civil rights action against two law enforcement officers to proceed.

Majeur5As Judge Jon Newman, writing the unanimous opinion, explained, the case began as the result of an "irate automobile passenger's act of 'giving the finger,' a gesture of insult known for centuries, to a policeman," prompted by the officer's use of a radar device. Although the plaintiffs' car was not speeding, the officer followed the car and initiated a "traffic stop."  Mr. Swartz was subsequently arrested for disorderly conduct (seemingly because of a statement describing himself in unflattering terms) and made three court appearances before the charges were ultimately dismissed on speedy trial grounds. 

At issue was whether the original stop was reasonable under the Fourth Amendment.  But underlying this determination depended on the meaning of the "middle finger" expression.  As Judge Newman wrote:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation.  And perhaps that interpretation is what prompted [Officer] Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.  This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Judge Newman cites LawProf Ira Robbin's wonderful 2008 article, Digitus Impudicus: The Middle Finger and the Law, published in the UC Davis Law Review and available on ssrn.  While the citation is to Robbins' discussion of the first recorded use of the gesture in the United States in 1886 (hint: think baseball), Judge Newman's opinion does seem influenced by Robbins' article, which extensively discusses the First Amendment aspects of the gesture and their relationship to criminal justice.  

RR
[image via]

 

January 3, 2013 in Criminal Procedure, First Amendment, Opinion Analysis, Profiles in Con Law Teaching, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 26, 2012

Sotomayor Rejects Hobby Lobby's Emergency Stay of ACA Contraception Coverage Mandate

In her role as Circuit Justice for the Tenth Circuit, Justice Sonia Sotomayor today rejected an application for an injunction pending appellate review from Hobby Lobby.  In her brief order in Hobby Lobby Stores, Inc. v. Sebelius, Sotomayor ruled that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

Hobby-Lobby-Logo

Recall that in November, an Oklahoma district judge stressed that Hobby Lobby, an arts and crafts store chain operating in 41 states, as well as its co-plaintiff, the Mardel corporation, were secular for-private corporations that did not possess free exercise of religion rights under the First Amendment.  Judge Joe Heaton therefore denied the motion for a preliminary injunction regarding their First Amendment objections to complying with contraceptive requirements under the Patient Protection and Affordable Care Act. 

Sotomayor notes that the Tenth Circuit refused to issue a stay pending appeal and she saw no reason to depart from that conclusion: "Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court."

RR

December 26, 2012 in Courts and Judging, Current Affairs, Family, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Where Are the Guns? Constitutional Considerations of Publication of Mapped Information

An interactive map revealing gun information published by a suburban New York newspaper is causing an uproar.  The newspaper explained, to "create the map, The Journal News submitted Freedom of Information requests for the names and addresses of all pistol permit holders in Westchester, Rockland and Putnam [Counties]. By state law, the information is public record."

Screen Shot 2012-12-26 at 7.41.54 PMThe newspaper's actions come in the wake of renewed conversations regarding gun control and ownership.  However, the disclosure of information using google maps is not new.  Activists used Google maps to disclose the names, addresses, and contributions made by Californians in support of Proposition 8 that prohibited same-sex marriage.  (Recall Prop 8 is now before the United States Supreme Court.)

While not using mapping applications, the Supreme Court's 2010 decision in Doe v. Reed is relevant.  In Doe v. Reed, the Court 8-1 rejected a First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative, again prohibiting same-sex marriage, in Washington state.  Interestingly, during the oral argument, the Justices seemed often to conflate the Washington initiative with California's Proposition 8. Yet the fact that state law through its public record law was merely requiring disclosure, rather than prohibiting speech, was central to the Court's opinion that there was not a right to remain anonymous.  The names were thus disclosed.

State law could, however, provide a "Firearms Ownership Privacy Act" such as those being advocated by the National Rifle Association that might seek to declare gun permits non-public records.  The firearms privacy act passed in Florida, prohibiting doctors from inquiring about gun ownership, was enjoined as a violation of the First Amendment.

RR
[image screenshot via]

December 26, 2012 in Current Affairs, First Amendment, Privacy, Second Amendment, Sexual Orientation, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, December 23, 2012

Sixth Circuit: Political Retaliation Doesn't Require Actual Affiliation

A divided three-judge panel of the Sixth Circuit ruled this week in Dye v. Office of the Racing Comm'n that government employees' First Amendment political retaliation claims could be based on their perceived political affiliation, and not just their actual political affiliation.  The case deepens a circuit split on the question, with the First and Tenth Circuits ruling that such claims can be based on perceived affiliation and the Third Circuit requiring actual affiliation.

The case arose when employees of the Michigan Office of the Racing Commissioner, the Michigan department that regulates horseracing in the state, claimed that their politically-appointed supervisors retaliated against them for their protected speech and their perceived political affiliation.  (The employees claimed that their superiors, Democrats, thought that they were Republicans.)  The district court granted the defendants' motion for summary judgment, ruling that the plaintiffs failed to allege that the defendants retaliated based on their actual, not just their perceived, political affiliation.

Judges Moore and Merritt agreed that the plaintiffs' claim didn't require them to allege that they were actually Republicans.  They borrowed from Waters v. Churchill--a speech case (not an affiliation case), holding that the Connick v. Myers test for government employee speech should be applied to what the government reasonable thought was said, and not what the trier of fact ultimately determines to have been said--and wrote that "[g]iven the plain meaning of Waters, along with our prior interpretation of its holding," op. at 14, the plaintiffs' affiliation claim should be judged by the plaintiffs' perceived affiliation, and not their actual affiliation.

Judge McKeague disagreed:

The majority's reading of Waters is troubling for two reasons.  First, by allowing a perceived affiliation claim such as the one here to go forward, the Court is essentially providing more First Amendment protection to government employees who have not even engaged in any actual conduct or speech.  . . .

Second, the majority does not explain why Waters, a protected speech case, should apply with equal force to a political affiliation case such as this one.  In my view, even though this is not a political patronage case, any decision on the perceived affiliation issue should certainly take into account the governing principles in the Supreme Court's political patronage dismissal cases . . . (rather than protected speech cases such as Waters).  Those cases deal directly with First Amendment protection of the right to political affiliation, and are thus a window into how the Court views such claims.

Op. at 37.

SDS

December 23, 2012 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Saturday, December 22, 2012

Ninth Circuit Enjoins California's Law Prohibiting Sexual Orientation Conversion Therapy

In a one page order yesterday, the Ninth Circuit issued an injunction pending appeal in Pickup v. Brown, enjoining California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18.

SB1172, slated to become effective January 1, had been enjoined earlier this month by Senior District Judge William Shubb in Welch v. Brown.  In this appeal, David Pickup, "a licensed Marriage and Family Therapist whose practice is almost exclusively devoted to counseling clients, including minors, who have unwanted same-sex attractions," and the other plaintiffs, including NARTH, the National Association for Research and Therapy of Homosexuality, argued in their emergency motion (with extensive attachments) that the district judge's denial of a preliminary injunction created an intra-district conflict given Judge Shubb's preliminary injunction as to the plaintiffs in that case.

Thus, SB 1172 is clearly enjoined throughout California and the First Amendment arguments will be heard by the Ninth Circuit in 2013.

RR

December 22, 2012 in Family, First Amendment, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, December 20, 2012

D.C. Circuit: NLRB Ruling Against Newspaper Violates First Amendment

A three-judge panel of the D.C. Circuit ruled this week in Ampersand Publishing, LLC v. NLRB that the National Labor Relations Board violated free speech when it ruled that the Santa-Barbara News-Press newspaper (published by Ampersand) violated the NLRA for sanctioning employees for the alleged bias in their articles.

The ruling is a reminder that free speech belongs to the publisher, not the reporters, when a publisher and its employees clash in employment disputes over the content of the publication.

The case arose out of a long-running dispute between Ampersand Publishing and employees of its Santa-Barbara News-Press over the content and viewpoint of the newspaper.  The publisher took measures to correct what it viewed as a slant in newspaper reporting.  Employees balked, arguing that the publisher was tilting stories the other way.  Employees protested, repeatedly demanding that the publisher "restore journalism ethics" to the paper, and eventually demanded that the publisher recognize a union. 

The publisher fired nine union-supporting employees--two for allegedly biased reporting, one for refusing to fire allegedly biased reporters, and six for publicly protesting the paper.  The publisher also cancelled a union-supporter's column and gave four others lower evaluations than they received in the past.

The union filed a complaint against the publisher, and an ALJ found, and the NLRB affirmed, that each of these acts violated the NLRA.

The D.C. Circuit vacated that ruling, holding that it violated the publisher's free speech.  "Where enforcement of the [NLRA] would interfere with a newspaper publisher's 'absolute discretion to determine the contents of [its] newspaper[],' the statute must yield."  Op. at 8, quoting Passaic Daily News v. NLRB, 736 F.2d 1543, 1557-58 (D.C. Cir. 1984).  "The First Amendment affords a publisher--not a reporter--absolute authority to shape a newspaper's content."  Op. at 8.

The court said that employees couldn't get around this by claiming that the publisher punished them for their pro-union activities (and not only their allegedly biased stories).  For one, the court said that all their protests referenced the publisher's content- and viewpoint-based decisions (the publisher's protected by free speech), not its anti-union actions (not protected by free speech).  For another, the employees can't sidestep the First Amendment's protection of the publisher's decisions simply by adding an allegation that the publisher violated the NLRA.  "Here, of course, the First Amendment wholly favors protection of the employer's interest in editorial control, the main issue in dispute; it is hard to imagine that employees can prevail over that simply by adding 'a few verses' of wage demands."  Op. at 13, referencing Judge Friendly's opinion in U.S. v. A Motion Picture Film Entitled "I Am Curious-Yellow," 404 F.2d 196, 201 (2d Cir. 1968).

SDS

December 20, 2012 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Read: William Ford on the Law and Science of Violent Video Games

The national conversation on violence has shifted since last week to include not only discussions of the Second Amendment, the role of conlaw scholars, appropriate quotations, and arming school teachers, but also "violent video games."

Mortal kombatAny mention of the regulation of violent video games occurs in the shadow of the Court's 2011 decision in Brown v. Entertainment Merchants Association in which the Court held unconstitutional California's statute prohibiting the sale of violent video games to minors under the age of 18 without parental permission. Scalia, for the Court, assessed the statute under the First Amendment, reasoning that the statute was not narrowly tailored:

As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.

In dissent, Breyer cited more than 100 studies on the links between violent video games and aggression, contending that legislatures were in a better position to assess such social science data than judges.

Ford-williamProfessor William Ford (pictured) interrogates the scientific and social scientific underpinnings of video game regulation.  In his article The Law and Science of Video Game Violence: What Was Lost in Translation?, forthcoming in Cardozo Arts & Entertainment Law Journal, available in draft on ssrn, Ford ultimately agrees with the Court's conclusion in Entertainment Merchants Association, given that "the First Amendment interests at stake in these cases outweighed the speculative possibility that a legislature is better able to assess scientific evidence than the courts."   He criticizes Breyer's view that legislatures are better positioned to assess the data than judges, by noting that legislators are also ill-equipped as social scientists.  Ford states that "there is no study, let alone a literature, assessing the relative skill of legislators and judges in reviewing or assessing scientific evidence."  Ford then implies that legislators might be less able to assess the evidence, because "the dominant goal usually associated with legislative behavior is reelection, which is not necessarily conducive to the careful assessment of scientific evidence." Taken to its logical conclusion, that sentiment would have the courts very busy indeed, and would obliterate deferential review in constitutional law.

Ford's arguments about the social science literature, however, are exceedingly well-taken.  In sum, it is inconclusive at best.  Considering not only Entertainment Merchants Association, but other legislation and cases, he summarizes:

The relevant literature is large, especially when one recognizes that these cases cannot just be about whether video game “violence” causes “aggression.” At a minimum, these cases were also about, or should have been about, a nuanced view of what counts as violence and aggression, how to operationalize violence and aggression, what types of violence may be particularly harmful, who might be most susceptible to harmful effects from violent media, and whether government restrictions would do anything to alleviate the harm.

Ford's article is also worth a read for its excellent discussion of "causation" in the debates about the role of video games.  This is an issue that may surface as more facts become known about recent events - - - and even more studies are produced that may be used by legislators and courts.

RR
[image: Mortal Kombat via]

 

December 20, 2012 in Current Affairs, First Amendment, Games, Scholarship, Second Amendment, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 19, 2012

D.C. Circuit Orders Halts ACA Contraception Challenges, but Keeps Eye on Government

A three-judge panel of the D.C. Circuit yesterday ordered challenges to the Affordable Care Act's requirement that covered employers offer group health insurance plans that provide certain forms of contraception, without cost sharing, in abeyance.  The ruling in Wheaton College v. Sebelius means that these challenges will not go forward in the D.C. Circuit, until and unless the government goes back on its promise to write new regulations that exempt religious employers, and that they are unlikely to go forward elsewhere.

Recall that these cases involve religious employers' objections to the ACA's contraception requirement under the First Amendment, the Administrative Procedures Act, and the Religious Freedom Restoration Act.  Lower courts dismissed the cases, however, on the government's commitment to write new regulations that would exempt religious employers.  

We covered the most recent case, with links to others, here.

The D.C. Circuit's Order puts an exclamation point after these earlier lower-court rulings.  The Order refers to the government's prior commitments to write new regs, but also to its specific commitment at oral argument to never enforce the contraception rule against Wheaton College or those similarly situated.  The court said: "We take the government at its word and will hold it to it."

Still, the court didn't dismiss the cases.  Instead, it ordered them held in abeyance, "subject to regular status reports to be filed by the government with this court every 60 days from the date of this order."  Thus the Order puts the burden on the government to continue to move forward in writing new regs.

SDS

December 19, 2012 in Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Daily Read: Claire Potter's "Teachers Are Not Soldiers"

If the often touted solution to unacceptable speech is "more speech" in the First Amendment context, perhaps there is a parallel Second Amendment solution, as in "more guns."  Indeed, one repeated suggestion to prevent school shootings is to arm teachers with sufficient fire power.

Cpotter01Claire Potter (pictured) contemplates this suggestion in her popular Chronicle of Higher Education column "Tenured Radical."  Her latest post "Teachers are not Soldiers," highlights the ethical and moral rationales for not allowing violence to escalate into our schools and universities.

But Potter also has a compelling and deeply pragmatic argument. She relates an incident when a student was killed on campus and she and her colleague suspected that perhaps "Jack," a student who had been acting unbalanced, was the perpetrator:

Imagine if, because of our uncertainty about what was wrong with Jack or what it meant, we had greeted our innocent student — already laboring under great emotional strain — with a couple of handguns in the face. Imagine, worse, if there had been a second, inadvertent, killing that day because we misread his fear, anger or confusion as aggression. Veteran police officers, well trained as they are, make this mistake with far too great a frequency in the city I now live in. Historically, and in our current wars, so do soldiers. 

Potter's post is worth reading in full, especially if you can't precisely articulate the reasons you don't want to carry an automatic weapon with you to class in addition to your casebook, notebook, powerpoint notes, flash drive, keys, and class attendance list. 

RR

December 19, 2012 in Current Affairs, First Amendment, Second Amendment, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 18, 2012

Sixth Circuit: No First Amendment Right for University Employee's Op-Ed

In its opinion yesterday in Dixon v. University of Toledo, the Sixth Circuit addressed what it labeled a "narrow inquiry," articulating the issue as "whether the speech of a high-level Human Resources official who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing" is protected speech under the First Amendment.

The panel held that it was not.

Dixon was the "interim Associate Vice President for Human Resources at the University of Toledo"  when she wrote and published what the Sixth Circuit opinion describes as "an op-ed column in the Toledo Free Press rebuking comparisons drawn between the civil-rights and gay-rights movements."  Crystal Dixon's op-ed, Gay rights and wrongs: another perspective, published in the Toledo Free Press in 2008 (available here), did not identify her position although it did address some university policies.  It also approvingly discussed the ex-gay movement, quoted Biblical passages, and provided comparative economic data for gay men and lesbians - - - none of which the Sixth Circuit mentioned, but probably contributed to the University's decision to terminate her due to the "public position" she took that "in direct contradiction to University policies and procedures as well as the Core Values of the Strategic Plan which is mission critical."

479px-The_University_of_Toledo.svgThe Sixth Circuit affirmed the district judge's grant of summary judgment to the university. 

There was no question that the speech was on a matter of public concern, but a question whether her speech was protected under the Pickering balancing test, Pickering v. Bd. of Educ., 391 U.S. 563 (1968).  The Sixth Circuit precedent included a presumption that “where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law.”

In its relatively brief opinion, the Sixth Circuit panel had little difficulty agreeing with the district judge that Dixon had substantial discretionary authority in her position and that her public statements conflicted with the university position's to extend civil rights protections to LGBT students and employees.

Dixon also raised an equal protection argument that other employees who made pro-LGBT statements and in one case attributing anti-LGBT sentiments to "religious bigotry" were not similarly terminated.  The court held that Dixon did not demonstrate that these employees were "similarly situated."

Indeed, it seems that the case turns on Dixon's highly placed position in Human Resources.

RR

December 18, 2012 in Equal Protection, First Amendment, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Complaint Against NYPD Alleging Right to Record Police Officers

The First Amendment right to record public police interactions with "smartphones" is the basis of a complaint filed yesterday in Charles v. City of New York.  The facts as alleged by plaintiff Hadiyah Charles are not dissimilar to those in Glik v. Cunniffe in which the First Circuit in 2011 found a First and Fourth Amendment violation and denied qualified immunity to the officers involved. (Compare the Seventh Circuit decision earlier this year).

NYCLUappThe recitation of facts in Charles' complaint link her actions to the controversial "stop and frisk" policy of the NYPD that she sought to record.  Her allegations also include failure to train law enforcement officers to abide by the department's Patrol Guide as well as the First Amendment.  Ms. Charles was arrested, held for some time, her phone searched, released with a charge of disorderly conduct that was ultimately dismissed.  The complaint also contains allegations that police officers derided Ms. Charles for being a "street lawyer." Ms. Charles is not an attorney, but an HIV activist who has been recognized as a "Champion of Change" by the White House.

A report in Gothamist has more details. 

And for those who plan on replicating Ms. Charles' activities, NYCLU has an "app" for that: “Stop and Frisk Watch” includes the ability to record, provide information, and transmit it to the NYCLU. 

RR
[image: screenshot from NYCLU video via].

December 18, 2012 in Criminal Procedure, First Amendment, Fourth Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, December 16, 2012

Justice Ginsburg Keeps NDAA's Indefinite Detention in Place Pending Appeal

Justice Ginsburg on Friday declined to reinstate a permanent injunction against the government's detention authority in the National Defense Authorization Act.  The ruling means that the NDAA's authorization for detention stays on the books pending appeal of the case, Hedges v. Obama, to the Second Circuit.

We covered the district court case and ruling here.

Recall that the plaintiffs in Hedges, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 of the NDAA violated the First Amendment.  That Section provides:

(a) In General.  Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Force of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

We covered the NDAA here.

The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons" based on their communications with certain individuals overseas.

Judge Katherine B. Forrest (SDNY) agreed and issued a permenant injunction this past September.  But the Second Circuit stayed that injunction in October and ordered expedited review.

On Friday, Justice Ginsburg denied the plaintiffs' request to vacate the Second Circuit stay.  She cited her own previous denial of an application to vacate a stay in Doe v. Gonzales, a case challenging the FBI's authority to collect electronic communications for use in anti-terrorism investigations under the PATRIOT Act.  Just like Judge Forrest here, the district court in Doe ruled that portion of the PATRIOT Act unconstitutional; and just like the Second Circuit here, the Second Circuit stayed that ruling and ordered an expedited appeal.

Thus it's a mistake to read Justice Ginsburg's denial as a ruling on the merits.  Instead, she appears to be letting the case run its course at the Second Circuit.  She said as much, writing, "Respect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition."

SDS

December 16, 2012 in Association, Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 11, 2012

Federal District Judge: North Carolina's "Choose Life" License Plate Scheme Unconstitutional

Is a specialty license plate government speech permissible under the First Amendment?  In a 21 page opinion and order in ACLU of North Carolina v. Conti, Senior United States District Judge James Fox held that North Carolina's "choose life" specialty license plate scheme was not protected government speech and therefore enjoined the issuance of such license plates.

800px-North_Carolina_1999_DXT-4752
Judge Fox described the North Carolina scheme as unique in comparison to other state statutory schemes and likewise noted that the legislature rejected offering other specialty plates that would have expressed an opposing view, such as "respect choice."

The central issue in the case, however, was whether the "choose life" specialty license plate could be described as "government speech" and thus protected under First Amendment doctrine as articulated in Rust v. Sullivan and most recently in the Court's unanimous 2009 opinion in Pleasant Grove City v. Summum.

Judge Fox rejected the state's argument that the degree of government control was "the" single factor test.  Instead, Judge Fox relied upon the Fourth Circuit's four factor test:

  • the central purpose of the program in which the speech in question occurs
  • the degree of editorial control exercised by the government and private parties
  • the identity of the literal speaker
  • whether the government or private entity bears the ultimate responsibility for the speech

Judge Fox noted that these factors were consistent with Supreme Court precedent and that the Fourth Circuit had employed them recently. 

Applying these factors, Judge Fox found that although the state exercised editorial control (despite the fact that the design and idea originated with a national organization outside the control of the state), the other factors weighed in favor of private, or hybrid private-state speech.

Judge Fox's order closed the case; it is sure to be appealed.  Meanwhile, North Carolina car owners are not relegated to the standard license plate: Judge Fox's opinion states that there are 150 types of specialty license plates available in the state.  More information is available here.

RR
[image via]

December 11, 2012 in Abortion, First Amendment, Fourteenth Amendment, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (0) | TrackBack (0)