Thursday, September 5, 2013

Michigan State Professor Removed From Teaching Responsibilities After Political "Rant"

As reported in The Detroit News this afternoon, a Michigan State University creative writing professor and novelist, William S. Penn, has been relieved of his teaching duties by administration for his anti-conservative and anti-Republican remarks made during class.  

Penn is a highly regarded writer and professor whose work often centers on his Native American/Anglo identity.  For example, his 1996 creative nonfiction book, All My Sins are Relatives, won a North American Indian prose award. 

A person in the classroom taped Penn and  Campus Reform, a project of the conservative Leadership Institute, produced the video below:

  

Given the current constructions of the Supreme Court's 2006 decision in Garcetti v. Ceballos,  Penn will have a difficult time showing he is speaking as a citizen rather than as a government employee and thus entitled to First Amendment protection.   Indeed,  the Sixth Circuit in Evans-Marshall v. Board of Education of Tipp City, which we discussed when it was decided in 2010, upheld the termination of a high school creative writing teacher who assigned Ray Bradbury's Fahrenheit 451. To explore that book’s theme of government censorship, she also developed an assignment based on the American Library Association's "banned books."

However, when the Sixth Circuit rejected the "academic freedom" argument of Evans-Marshall, it  opined that such a concept is limited to universities and does not extend to high schools.   As a university professor, Penn may have a better chance at making an academic freedom argument.

This could make a terrific in class exercise for ConLawProfs teaching First Amendment.

UPDATE: Take a look at the new Ninth Circuit opinion regarding academic freedom and Garcetti.  This would substantially improve Penn's position if adopted by the Sixth Circuit.

UPDATE 2: Statement of the MSU AAUP Chapter in support of academic freedom (and further fact intvestigation). 

UPDATE 3: Listen to an interview with ConLawProf Mae Kuykendall of MSU about the incident.

September 5, 2013 in Books, First Amendment, Fourteenth Amendment, News, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Daily Read: Interview with the Authors of Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America

EnemiesWithin3D

Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America is the just released book that lots of people who have an interest in surveillance and its constitutionality are talking about.

The authors, Matt Apuzzo and Adam Goldman, two AP reporters who won a Pulitzer Prize for their reporting on the New York City Police Department's surveillance of Muslims, gave an interview to "The Gothamist" and it's definitely worth a read.  For example, the authors say that some police officials essentially said "Hey look we have to think differently about activities that would be protected by the First and Fourth Amendments because they could actually be precursors to terrorism."   As one author responds: "That's just an incredible thing, when you think about the fact that a municipal police department is taking it upon itself [to decide] that constitutionally-protected speech is a warning sign for terrorism."

The authors state that their book is well-sourced, and indeed, the book has a companion website with maps and documents.

The authors will be appearing with Don Borelli, Former FBI Assistant Special Agent in Charge of the New York Joint Terrorism Task Force, at the Brennan Center for Justice in NYC on September 16, 2013.  Info and rsvp here.

 

September 5, 2013 in Books, Current Affairs, First Amendment, Fourth Amendment, Race, Religion | Permalink | Comments (0) | TrackBack (0)

Sunday, September 1, 2013

Texas State Appellate Court Finds "Improper Photography" Statute Unconstitutional

630px-PSM_V21_D054_The_binocular_cameraCan a state criminalize "improper" photography?

Texas Penal Code 21.15 seeks to do just that, providing:

A person commits an offense if the person: (1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room: (A) without the other person’s consent; and (B) with intent to arouse or gratify the sexual desire of any person.

While Texas courts had previously upheld the statute, the Texas Fourth Circuit Court of Appeals, sitting in San Antonio, ruled on a pretrial writ of habeas corpus that the statute was unconstitutional in its opinion in Ex Parte Thompson.

In its relatively brief discussion, the unanimous three judge panel held that "the statute not only restricts an individual’s right to photograph, a form of speech protected by the First Amendment, but the statute also restricts a person’s thoughts, which the U.S. Supreme Court has held is 'wholly inconsistent with the philosophy of the First Amendment.'"  [citations omitted]. 

The court, however, rejected the argument that the statute was a content restriction, instead finding that it was "imposing time, place, and manner restrictions that are unrelated to content," and thus merited "intermediate scrutiny" under United States v. O’Brien.  While O'Brien - - - the draft card burning case - - - is generally thought to be applicable to expressive conduct, the panel here uses O'Brien's factors to ultimately conclude that the statute is facially overbroad "reaching a substantial amount of constitutionally protected conduct," and relying in part on the Supreme Court's 2010 opinion in United States v. Stevens, declaring the federal "crush porn" statute unconstitutional.

The opinion's analysis and use of precedent might trouble some First Amendment scholars and it will be interesting to watch whether the case reaches the Texas Court of Criminal Appeals [thanks to commentator for clarifying Texas court system].

 

RR
[image via] 

September 1, 2013 in Cases and Case Materials, Courts and Judging, First Amendment, Opinion Analysis, Sexuality, Speech | Permalink | Comments (2) | TrackBack (0)

Friday, August 30, 2013

ACLU, Government File Motions in NSA Call-Tracking Case

The ACLU earlier this week filed a motion for a preliminary injunction in ACLU v. Clapper, the case in the Southern District of New York challenging the NSA's mass collection of Americans' telephone data.  We most recently posted on the NSA program, in EFFs suit against it, here.

The ACLU argues that it has a substantial likelihood of success on its Fourth and First Amendment challenges to the NSA program.  The group also argues that the government exceeded its statutory authority under Section 215 of the Patriot Act in collecting telephony metadata.

At the same time, the government filed a motion to dismiss.  The government claims that the ACLU lacks standing (under Clapper v. Amnesty International), that Congress impliedly precluded judicial review of the NSA program, that the NSA program is authorized by Section 215 of the Patriot Act, and that the program doesn't violate the Fourth and First Amendments.

Standing will certainly be an important threshold issue in the case, especially after the Court's ruling in Amnesty International.  In that case, the Court ruled that a group of attorneys and organizations didn't have standing to challenge the FISA Amendments Act, which allowed the Attorney General and the DNI to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be outside the United States.  The Court said that the plaintiffs' alleged injury-in-fact was too speculative--that the plaintiffs couldn't show that they'd be targets of surveillance under this FISA authority, that the FISA court would necessarily approve the surveillance of them, or that the government would succeed in its surveillance of them. 

Here, in contrast, the ACLU alleged in its complaint that its telephone communications were and are monitored, that this monitoring would reveal privileged and sensitive information between the ACLU and its clients, and that the monitoring will likely have a chilling effect on the group's communications with clients.  In other words, the ACLU tried to navigate the Amnesty International barrier and show with more determinacy that it has suffered a sufficient injury in fact.

August 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, August 29, 2013

Ninth Circuit Upholds California Ban on Reparative (Sexual Orientatation Conversion)Therapy Against First Amendment Challenge

A panel of the Ninth Circuit today upheld the validity of 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.

In its 36 page opinion in the consolidated cases of  Pickup v. Brown and Welch v. Brown, the court reversed the senior district judge's opinion in Welch v. Brown enjoining the statute, and affirmed the opinion of a different district judge in Pickup v. Brown that had found the statute constitutional, and dissolved its own injunction pending appeal issued last December.

Judge Susan Graber, writing for the unanimous panel also consisting of  Chief Judge Alex Kozinski and Judge Morgan Christen, Judge Graber summarized the holding thusly:  

SB 1172, as a regulation of professional conduct, does not violate the free speech rights of SOCE practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights.

 

Lossy-page1-424px-Le_psychiatre.tif
"Le psychiatre" by Jeylina Ever, 2010
The panel held that SB 1172 did not merit heightened scrutiny under the First Amendment. Construing circuit precedent, it distilled several relevant principles:

 

(1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself;
(2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and
(3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.

(emphasis in original).  The panel concluded that there is a continuum between speech and conduct, and that SB 1172 landed toward conduct, "where the state's power is great, even though such regulation may have an incidental effect on speech."   Applying a rational basis standard, the court rejected the claim that California legislature acted irrationally.

The court quickly dispatched the remaining arguments including that SB 1172 violated the right of "expressive association" as between counselors and clients, that SB 1172 was void for vagueness, that SB 1172 was overbroad, and that SB1172 violated the parents' fundamental due process rights over their children.

This is an important and well-reasoned decision likely to be persuasive to other courts, including the federal district judge deciding the constitutional challenge to New Jersey's similar statute.

RR
[image via]

August 29, 2013 in Family, First Amendment, Medical Decisions, Opinion Analysis, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, August 26, 2013

New Jersey's Prohibition of Sexual Orientation Conversion Challenged

New Jersey's Republican Governor Chris Christie (pictured) signed New Jersey A3371 banning so-called sexual conversion or reparative therapy on minors into law earlier this month. 

DSC_3546_smallIn his signing statement, Christie said:

At the outset of this debate, I expressed my concerns about government limiting parental choice on the care and treatment of their own children. I still have those concerns. Government should tread carefully into this area and I do so here reluctantly. I have scrutinized this piece of legislation with that concern in mind.

However, I also believe that on issues of medical treatment for children we must look to experts in the field to determine the relative risks and rewards. The American Psychological Association has found that efforts to change sexual orientation can pose critical health risks including, but not limited to, depression, substance abuse, social withdrawal, decreased self-esteem and suicidal thoughts.

I believe that exposing children to these health risks without clear evidence of benefits that outweigh these serious risks is not appropriate. Based upon this analysis, I sign this bill into law.

 

 Despite Christie's careful articulation of  his support for the bill, it was criticized and quickly challenged in a complaint filed in federal court in King v. Christie.  The plaintiffs include Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”).  They argue that the law violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.

RR

UPDATE: In Pickup v. Brown, the Ninth Circuit has upheld California's similar law banning sexual conversion therapy.

 

August 26, 2013 in Current Affairs, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, Medical Decisions, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 14, 2013

Sixth Circuit: "Begging" Protected by First Amendment

In its opinion today in Speet v. Schuette, the Sixth Circuit, affirming the district court, held that Michigan's so-called "anti-begging" statute is unconstitutional.  The Michigan statute, Mich. Comp. Laws § 750.167(1)(h), defines a "disorderly person," as a "person found begging in a public place."

480px-August_Heinrich_Mansfeld_Die_milde_GabeThe court notes that "Attorney General Schuette argues that the anti-begging statute does not reach any conduct or speech that the First Amendment protects."  The court rejected this contention and stated that "begging, by its very definition, encapsulates the solicitation for alms."  And while the court agreed that the United States Supreme has never squarely ruled that an individual soliciting for alms is engaged in expression,in an interesting twist of the usual analogizing, the Sixth Circuit noted that the Court  "has held—repeatedly—that the First Amendment protects charitable solicitation performed by organizations."  The court engages in extensive discussion of precedent as well as cases in other circuits including the Fourth Circuit in Clatterback which we discussed here. The Sixth Circuit found that there was indeed protected expression in "begging" sufficient to invoke the First Amendment.

It then turned to the question of whether the statute was "overbroad."  Although it recognized that "overbreadth" was "strong medicine," it determined it was warranted:

Instead of a few instances of alleged unconstitutional applications, we have hundreds. The Grand Rapids Police Department produced four hundred nine incident reports related to its enforcement of the anti-begging statute. Thirty-eight percent of the people that the police stopped were holding signs requesting help, containing messages like “Homeless and Hungry: Need Work,” “Homeless Please Help God Bless,” “Lost My Job Need Help,” and “Homeless and Hungry Vet.” The other sixty-two percent of the stops (two hundred fifty-five instances) involved people verbally soliciting charity. In forty- three percent of the cases, the police immediately arrested the people who were begging. In two hundred eleven cases, people convicted of begging were sentenced directly to jail time. The record in this case bolsters our “judicial prediction” that “the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”

It further determined that it could not "read the statute to limit its constitutional effect," : instead, the "statute simply bans an entire category of activity that the First Amendment protects."  While Michigan could regulate "begging," it may not simply prohibit it by its criminal laws.

Although relatively brief at 17 pages, this is a well-reasoned opinion in conformance with the weight of authority and First Amendment doctrine. 

RR
[image via]

August 14, 2013 in First Amendment, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Saturday, August 10, 2013

Obama Administration Supports Town of Greece's Prayer on Certiorari to United States Supreme Court

In Galloway v. Town of Greece (New York), the Second Circuit held that the town's practice of legislative prayer "impermissibly affiliated the town with a single creed, Christianity."  

The Court granted the Town's peitition for writ of certiorari, and the Solicitor General has just filed the United States Government's brief supporting the Town. 

At issue is an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature's employment of a chaplain to lead a legislative prayer.  The majority opinion, authored by Chief Justice Burger, was seemingly not worried that the same chaplain had been employed for almost two decades, and relied upon the historical practice of legislative prayer, applying Lemon v. Kurtzman.

The Second Circuit in Town of Greece, however, looked at the content of the prayers and essentially found, as we phrased it here, "one invocation to Athena out of 130 is simply not sufficient" to meet the requirement of non-endorsement given that two-thirds of the prayers contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.”

Athena1
The Solicitor General's brief, however, argues that the court should not consider the content of the prayers.  The government argues:

Under the principles announced in Marsh, which relied heavily on the history of legislative prayer in this country, a prayer practice that is not problematic in the ways identified in Marsh (as petitioner’s practice concededly is not) does not amount to an unconstitutional establishment of religion merely because most prayer- givers are Christian and many or most of their prayers contain sectarian references. The unbroken history of the offering of prayer in Congress, for example, has included a large majority of Christian prayer-givers and a substantial number of prayers with identifiably sectarian references. Neither federal courts nor legislative bodies are well suited to police the content of such prayers, and this Court has consistently disapproved of government interference in dictating the substance of prayers.

Taken to its logical conclusion, the government's position here would disable the judiciary from considering the content of any prayer, including one that was vigorously and even violently sectarian.

RR
[image of Athena, via]

August 10, 2013 in Current Affairs, Establishment Clause, First Amendment, Recent Cases, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Friday, August 9, 2013

President Opens Up on Surveillance

President Obama today announced a new effort at transparency and oversight in government surveillance programs.  WaPo reports here; here's the transcript.

President Obama said that he directed his national security team "to review where our counterterrorism efforts and our values come into tension," and "to be more transparent and to pursue reforms of our laws and practices."  He said he'd work with Congress to reform Section 215 of the Patriot Act, the statutory authority for the Foreign Intelligence Surveillance Court to order the release of telephone records (and which came under fire with Snowden's release of the FISC order doing just that), and to reform the FISC, in particular, by appointing a civil liberties advocate at the court.  He also said he'd work to be more transparent about surveillance and appoint an independent group "to step back and review our capabilities, particularly our surveillance technologies, and . . . how we can maintain the trust of the people . . . ."

The President also released a Readers Digest version of the legal authority for bulk collection of telephony metadata under Section 215, and an NSA mission statement.

As to the legal authority, the administration gave a broad read to the term "relevant" in Section 215--the issue that EPIC pressed in its recent suit challenging the program.  That is, the administration takes the position that Section 215's requirement that FISC production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation" gives very broad sweep to the FISC's authority.  The administration also focused on controls over abuse of the authority under Section 215.

The document argues that the program violates neither the Fourth Amendment nor the First Amendment.  As to the Fourth, the document claims that surveillance of telephony metadata doesn't even qualify as a "search" under Smith v. Maryland (1979), and, even if it did, the "search would satisfy the reasonableness standard that the Supreme Court has established in its cases authorizing the Government to conduct large-scale, but minimally intrusive, suspicionless searches" under Maryland v. King (2013).

As to the First Amendment, the document argues that the program authorizes the collection of only metadata, not content.  Moreover, it says that as a lawful investigative activity, can't violate the First Amendment, and that there's no chilling of protected speech.

SDS

August 9, 2013 in Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Fourth Amendment, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 6, 2013

Sixth Circuit Rules University Speech Policy Unconstitutionally Vague

The Sixth Circuit ruled last week in McGlone v. Cheek that the University of Tennessee's speech policy was unconstitutionally vague and violated the First Amendment.

The case arose when the University denied permission to McGlone, a self-described "committed Christian," to share his religious beliefs with students in an open-air amphitheater on campus.  Campus authorities told him that he needed a University sponsor.  In particular, they told him that University policy required speakers not affiliated with the University receive sponsorship from "students, faculty, or staff."  But they also told him that he needed to be "sponsored by a registered student organization, staff, or faculty."  McGlone couldn't get a sponsor, so he didn't speak.  But he sued.

The Sixth Circuit seized on the different articulations of the policy--one requiring sponsorship from "students, faculty, or staff," and the other requiring sponsorship from "a registered student organization, staff, or faculty"--to rule that the policy was unconstitutionally vague.  The court said that a person of ordinary intelligence wouldn't know the University policy's meaning, that University officials had applied it differently, and that it left open the possibility of arbitrary and discriminatory enforcement.

The court remanded the case to the district court with instructions to grant a preliminary injunction against the University.

SDS

August 6, 2013 in Cases and Case Materials, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, August 5, 2013

Third Circuit En Banc: Students Have First Amendment Right to Wear Breast Cancer Bracelets

The students' bracelets proclaimed "I ♥ boobies (KEEP A BREAST)."  The Easton Area School District banned the bracelets as not suitable for school.  In an en banc opinion today in B.H. v. Easton Area School District, the Third Circuit upheld the First Amendment rights of the students, affirming the district judge's injunction against the school.

The bracelets were clearly speech and the school's attempt to ban the expression brought the Supreme Court's student speech cases into play:  Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), Hazelwood Sch. Dist. v. Kuhlmeier (1988) and Morse v. Frederick (2007). 

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The school district relied most heavily on Fraser, defending the bracelet ban as an exercise of its authority to restrict lewd, vulgar, profane, or plainly offensive student speech allowable under Fraser.  However, in the en banc opinion joined by 9 judges, the Third Circuit held that although under Fraser, "a school may categorically restrict plainly lewd, vulgar, or profane speech that offends for the same reasons obscenity offends,"  Fraser "does not permit a school to categorically restrict ambiguous speech that a reasonable observer could interpret as having a lewd, vulgar, or profane meaning and could plausibly interpret as commenting on a social or political issue."  (emphasis added).

The Third Circuit noted that the Tinker disruption standard remained as a "backstop" to the school's argument, but held that here it was not effective.  Tinker, the court asserted "meant what it said: ―a specific and significant fear of disruption, not just some remote apprehension of disturbance," and in the case of the Easton School District's ban on the bracelets the "record of disruption is even skimpier" than it was in the case of the Des Moines school district's ban on the black armbands at issue in Tinker.

For the 5 dissenting judges,there was some doctrinal disagreement over the controlling rationale of Morse (the "Bong Hits 4 Jesus" case), but the central issue was the applicability of Fraser.  For the dissenters, the balance tips toward deference to the school and the fact that the phrase "I ♥ boobies! not only expresses support for those afflicted with breast cancer, but also conveys a sexual attraction to the female breast," allows the school to ban the bracelets.  This is true even if  "certain facts indicate that a sexual interpretation of the ―I ♥ boobies bracelets may be at the outer edge of how a reasonable observer would interpret speech." 

In a very short separate dissenting opinion, but signed by all 5 dissenters, Judge Greenaway, Jr. makes the point that the majority opinion provides little guidance to school districts. Thus, the "I ♥ boobies" Third Circuit opinion joins the "My Space" off campus school speech Third Circuit en banc opinion in 2011, which provided just a little guidance.  Yet perhaps the guidance is this: school officials seeking to restrict student speech do so at their own peril.

RR
[image via]

More on "Dressing Constitutionally" blog here

August 5, 2013 in Cases and Case Materials, First Amendment, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Thursday, August 1, 2013

Divided Third Circuit Upholds New Jersey's Handgun Permit Law

In its opinion in Drake v. Filko, a panel of the Third Circuit has rejected a Second Amendment challenge to New Jersey's handgun permit law, N.J.S.A. § 2C:58 - 4.  Affirming the district judge, the majority opinion by Judge Ruggero Aldisert (who was appointed to the Third Circuit by President Lyndon Johnson) upheld the statutory "justifiable need” standard for a permit to carry a handgun in public.

Handgun_collection

The majority declined to "definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the “core” of the right as identified by Heller," referring to the Supreme Court's controversial 2008 decision of Heller v. District of Columbia finding that the Second Amendment should be interpreted as including an individual right. Yet the majority moved on to assume that even if the individual right extended beyond the home, does a "requirement that applicants demonstrate a “justifiable need” to publicly carry a handgun for self-defense burdens conduct within the scope of that Second Amendment guarantee.  It concluded that the “justifiable need” standard of the Handgun Permit Law is a longstanding regulation that enjoys presumptive constitutionality under the teachings articulated in Heller, noting that a "close analogue to the New Jersey standard can be found in New York’s permit schema," which was upheld by the Second Circuit as we discussed last November.

The majority acknowledged that this could well settle the matter.  But "in this new era of Second Amendment jurisprudence," it decided it was important to proceed to apply the means-end scrutiny under its circuit precedent.  And as in most means-end inquiries, the level of scrutiny was a central issue.  Predictably, the challengers argued for strict scrutiny, but their argument rested upon an analogy to First Amendment prior restraint doctrine.  The court rejected that analogy, canvased the Second Amendmen levels of scrutiny being applied in the circuits, and concluded that "intermediate scrutiny" was the correct standard, and articulated it thusly:

under intermediate scrutiny the government must assert a significant, substantial, or important interest; there must also be a reasonable fit between that asserted interest and the challenged law, such that the law does not burden more conduct than is reasonably necessary.

After an extensive discussion, the majority found that the NJ law satisfied this standard.

In a dissenting opinion as lengthy as the majority opinion, Circuit Judge Thomas Hardiman disagreed with almost every aspect of the majority's well-reasoned opinion.  Judge Hardiman argued that the Second Amendment should apply outside the home, argued that NJ's gun restriction was historically not longstanding, and while agreeing that intermediate scrutiny was the correct standard, disagreed that it was satisfied.

While the United States Supreme Court denied certiorari in the Second Circuit opinion upholding NY's limitation on concealed gun laws, a petition for certiorari will most probably be filed in this Third Circuit case.  At some point, the Court may again take up the confusing issues left in the wake of its two controversial decisions in Heller v. District of Columbia and McDonald v. City of Chicago.

RR
[image via]

 

August 1, 2013 in Cases and Case Materials, Courts and Judging, First Amendment, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 30, 2013

The Police Officer, the Quota Complaint, and the First Amendment

800px-NYPD_cars_line_up

NYPD Officer Craig Matthews was critical of the alleged quota system responsible for unjustified stops, arrests, and summonses in his precinct in New York City and suffered adverse employment actions.    His claim of a First Amendment violation raises the specter of Garcetti v. Ceballos, decided by the Court in 2006.  Citing Garcetti, as well as Second Circuit precedent, a district judge dismissed Matthews' complaint last year. The Second Circuit reversed in a summary order, finding that discovery was required to inquire into the "nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.”  On remand, the case was reassigned to a different judge, discovery ensued,  but Matthews was again unsuccessful.  

Judge Englemayer 's opinion in Matthews v. City of New York grants summary judgment to the defendant.

While the subject matter of Officer Matthews' speech was clearly a matter of public concern, the officer spoke "pursuant to his public duties" and as an employee rather than a citizen.  Judge Englemayer's opinion contains an excellent rehearsal of the Supreme Court's precedent, starting with Pickering and continuing to Garcetti.  But the crux of the argument rests upon the Second Circuit case of Jackler v. Byrne,  a rare post-Garcetti case finding for the employee.  The judge distinguishes Jackler on specific facts: 

Officer Matthews made a series of truthful reports about his concerns; unlike Jackler, he was neither compelled to retract those statements nor to file a false report.

Judge Englemayer goes on for an additional ten pages, engaging in a "fact-specific inquiry" regarding  whether Matthews' complaints were made "pursuant to his official duties."  It is definitely a careful and considered opinion, yet it is sure to be appealed.  With the continuining attention to stop and frisk policies, including the possibility of police "quotas," Matthews' case raises important issues not necessarily solved by current First Amendment doctrine.

RR

July 30, 2013 in Criminal Procedure, Current Affairs, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, July 29, 2013

Divided Third Circuit Panel: Corporations Do Not Have First Amendment Free Exercise Rights

 

Conestoga wood
Product featured on the Conestoga Wood Specialties Corporation website
In a divided opinion, a panel of the Third Circuit in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services has held that a private for-profit secular corporation, in this case making wood cabinetry and employing almost one thousand people, does not meet the threshold for raising a claim that the ACA's requirement that its health insurance include contraceptive coverage for its employees.

 

Writing for the majority, Judge Robert Cowen, joined by Thomas Vanaskie, acknowledged in a footnote the contrary decision of a majority of the Tenth Circuit en banc in Hobby Lobby Stores, Inc. v. Sebelius, but simply stated it respectfully disagreed.  Instead, affirming the district judge, the majority skillfully articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.

First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010).  The majority noted that Citizens United was grounded in the notion that the Court has a long history of protecting corporations' rights to free speech and that there was no similar history regarding corporations' religious rights:

In fact, we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.  Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations. 

The majority distinguished religious organizations, such as those involved in  Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) or  Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), because these are not "secular, for-profit corporations." 

Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners.  The majority noted that the Hahn family own 100 percent of the voting shares of Conestoga and that the Hahns practice the Mennonite religion.  However, it  rejected the theory that had been applied by the Ninth Circuit in two non-ACA mandate cases, stating the theory "rests on erroneous assumptions regarding the very nature of the corporate form."  For the majority, it is a "fundamental principle"  that "incorporation‘s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created the corporation."  Rather, "by incorporating their business, the Hahns themselves created a distinct legal entity that has legally distinct rights and responsibilities from the Hahns, as the owners of the corporation."  Moreover, because

Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga.

(emphasis in original).

The majority's RFRA analysis is exceedingly brief, simply stated that since the corporation cannot exercise a religion it cannot assert a statutory RFRA claim.

In a 66 page dissent that is twice as long as the majority opinion, Judge Kent Jordan criticizes the majority for concluding that the "Hahns' choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit."  Judge Jordan's dissent is clearly deeply felt, stating that

the government claims the right to force Conestoga and its owners to facilitate the purchase and use of contraceptive drugs and devices, including abortifacients, all the while telling them that they do not even have a basis to speak up in opposition. Remarkable.

I reject that power grab and would hold that Conestoga may invoke the right to religious liberty on its own behalf.

 Indeed, Judge Jordan's dissent demonstrates how deeply the divisions abide on this issue.  Coupled with the similarly split opinions in Hobby Lobby, in which the majority agrees with Judge Jordan, it's clear that if - - - and most likely when - - - this issue reaches the United States Supreme Court, it will be very contentious.

RR

July 29, 2013 in Cases and Case Materials, Congressional Authority, Current Affairs, First Amendment, Gender, Interpretation, Opinion Analysis, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, July 22, 2013

Divided Fourth Circuit Rejects Reporters' Privilege to Protect Sources

In its opinion in United States v. Sterling, with James Risen as Intervernor, a sharply divided Fourth Circuit panel declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.

State_of_War_James_RisenThe underlying controversy involves James Risen's book, State of War: The Secret History of the CIA and the Bush Administration  and the prosecution of former CIA agent Jeffrey Sterling for various crimes related to his revealtions of classified information.   As Chief Fourth Circuit Judge William Traxler, writing for the panel majority on this issue, describes it,

Chapter 9 of the book, entitled “A Rogue Operation,” reveals details about Classified Program No. 1. J.S.A. 219-32. In the book, Risen entitled the program “Operation Merlin” and described it as a “failed attempt by the CIA to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran.” J.A. 722. Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.

While the opinion involves two other issues, involving the suppression of the testimony of two other government witnesses and the withholding of the identities of several covert CIA operatives under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 - - - issues on which Chief Judge Traxler wrote a concurring and dissenting opinion - - - the nonexistence of a reporters' privilege is the most central from a constitutional perspective.   The majority opinion was unequivocal:

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

The majority reasoned that this result was mandated by the United States Supreme Court's 1972 opinion in Branzburg v. Hayes.  It did not credit the argument that Justice Powell’s concurring opinion in Branzburg made Branzburg's holding less clear.  Instead, it rejected Risen's contention that Powell's concurrence "should instead be interpreted as a tacit endorsement of Justice Stewart’s dissenting opinion, which argued in favor of recognizing a First Amendment privilege in criminal cases that could be overcome only if the government carries the heavy burden of establishing a compelling interest or need."  The majority stated that just as in Branzburg, Risen has

“direct information . . . concerning the commission of serious crimes.” Branzburg, 408 U.S. at 709. Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government  to protect national security, but who is charged with having endangered it instead.

That the crime is the leak itself does not seem to be noteworthy.  The majority likewise rejected the notion that there was any common law privilege.

For Judge Robert Gregory, dissenting, principles of a free press as expressed in the First Amendment should include a reporter's privilege, that should then be evaluated under a balancing test:

Protecting the reporter’s privilege ensures the informed public discussion of important moral, legal, and strategic issues. Public debate helps our government act in accordance with our Constitution and our values. Given the unprecedented volume of information available in the digital age – including information considered classified – it is important for journalists to have the ability to elicit and convey to the public an informed narrative filled with detail and context. Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government.

For Judge Gregory, Justice Powell's concurring opinion modifies the holding of Branzburg.  Recognizing that the "full import of Justice Powell’s concurrence continues to be debated," Judge Gregory notes that appellate courts have subsequently hewed closer to Justice Powell’s concurrence – and Justice Stewart’s dissent – than to the majority opinion, and a number of courts have since recognized a qualified reporter’s privilege, often utilizing a three-part balancing test."  He thus finds it "sad" that the majority "departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters."  Judge Gregory would also recognize a "common law privilege protecting a reporter’s sources pursuant to Federal Rule of Evidence 501."

While there are statutory proposals and provisions aplenty, the continuing confusion over the meaning of Branzburg and the existence of a reporter's First Amendment or even common right to retain confidentiality of sources does call for resolution.  The Fourt Circuit's divided opinion squarely presents the issue for the Supreme Court .

RR

July 22, 2013 in Books, Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Opinion Analysis, Speech, State Secrets | Permalink | Comments (0) | TrackBack (0)

Friday, July 19, 2013

First Amendment Whistleblowers? Government Employees Reveal Trayvon Martin's Cell Phone and Tsarnaev's Surrender Photos

While the trial of famous whistleblower Bradley Manning continues and the fate of even-more-famous whistleblower Edward Snowden remains unresolved, two other government employee whistleblowers involved in high profile cases have been terminated from employment and possibly implicate Garcetti v. Ceballos. Decided in 2006, Garcetti denied First Amendment protections to a prosecutor who testified for the defense regarding his misgivings about the veracity of an affidavit used to obtain a search warrant and then suffered adverse employment actions.  Recall that earlier this year the United States Supreme Court declined to grant certiorari in two cases presenting a conflict in the Circuits regarding interpretations of Garcetti.

 The reported facts involving Ben Kruidbos, a director of information technology for the prosecutor's office in the racially-charged and controversial prosecution of George Zimmerman for the death of Trayvon Martin, are closely analogous to Garcetti

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[image of Trayvon Martin by Shepard Fairey via]

Kruidbos testified at an early June pre-trial hearing that prosecutors failed to turn over evidence extracted from Martin's cell phone to the defense and thus violated the mandate of Brady v. Maryland.  After the prosecution's closing arguments, Kruidbos was terminated in a letter that mentioned numerous flaws, including wrongly retaining computer records.  Kruibdos will reportedly bring a whistleblower action under state law; but if he raises a First Amendment claim, Garcetti will be an important obstacle.

 

The reported situation involving police photographer Sergeant Sean Murphy is less analogous to Garcetti and may even be closer to the classic 1968 case of Pickering v. Board of Education in which the teacher Pickering wrote a letter to the newspaper.  Yet unlike Pickering, Sgt. Murphy was not acting as an ordinary citizen, but revealing hundreds of images that he possessed by virtue of his public employment.

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[Rolling Stone Cover via]

  Murphy, reportedly "incensed by the controversial Rolling Stone magazine cover for a story about accused Boston Marathon bomber Dzhokhar Tsarnaev," has reportedly now been relieved of his duties with a hearing pending.  Whatever happens to the police photographer, it may now be that the controversial Rolling Stone cover photo (one that was also published on the front page of the NYT) has been eclipsed by even more controversial photos.

Both Kruidbos and Murphy would make terrific in-class exercises or discussions, especially if used together, as a means of exploring First Amendment protections for government employees.

RR

July 19, 2013 in Cases and Case Materials, Current Affairs, First Amendment, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

EFF Challenges NSA Surveillance Program

The Electronic Frontier Foundation, on behalf of a bevy of organizations, filed suit against the NSA in the Northern District of California to stop its surveillance program and to return any information retrieved.  The complaint in First Unitarian Church of Los Angeles v. NSA argues that the "Associational Tracking Program"--the surveillance program that received so much recent attention with the release of Foreign Intelligence Surveillance Court Judge Roger Vinson's ruling ordering the disclosure of domestic phone records--violates the organizations' and their members' First, Fourth, and Fifth Amendment rights.

We previously posted on EPIC's case taking a different route--a petition for a writ of mandamus directly with the Supreme Court.

SDS

July 17, 2013 in Association, Cases and Case Materials, Fifth Amendment, First Amendment, Fourth Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, July 15, 2013

Free Speech Protection for Flashing Headlights?

Amy Feldman over at Constitution Daily writes that flashing headlights enjoy some First Amendment protection.  In particular, Feldman says that courts in Florida, Utah, and Tennessee have all ruled that flashing headlights are protected speech, and that a headlight flasher can't be prosecuted for obstructing justice for flashing headlights to alert oncoming traffic of a speed trap.

Still, Feldman says that headlight flashers' civil claims against the police for money damages for violating their First Amendment rights have been far less successful.

SDS

July 15, 2013 in First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, July 12, 2013

Fourth Circuit Upholds Employer Mandate in Affordable Care Act

A three-judge panel of the Fourth Circuit upheld the employer mandate in the Affordable Care Act.  The ruling in Liberty University v. Lew deals a significant blow to challengers of the Act's requirement that large employers provide affordable health care coverage to full-time employees and dependents or pay a fine.  Unless and until it's appealed to the full Fourth Circuit and the Supreme Court--and unless and until one or the other reverses--the ruling upholds the employer mandate.

The ruling is notable, because it says that Congress had authority under the Commerce Clause to enact the employer mandate.  (Recall that five Justices on the Supreme Court said last summer in National Federation of Independent Business v. Sebelius that Congress exceeded its authority under the Commerce Clause to enact the individual mandate.)  What's the difference?  See below.

The case is a hold-over from the Supreme Court's ruling last summer in National Federation of Independent Business v. Sebelius.  Recall that the Court in that case held that the Anti-Injunction Act did not bar a the suit challenging the individual mandate, and that the individual mandate was a valid exercise of Congress's taxing power.  The Court also remanded Liberty University to the Fourth Circuit for a ruling consistent with NFIB.  (The Fourth Circuit previously held that the Anti-Injunction Act deprived it of jurisdiction to rule on the merits and dismissed the case.)

The Fourth Circuit followed NFIB's lead and ruled that the employer mandate (like the individual mandate in NFIB) was not a "tax" for purposes of the Anti-Injunction Act.  (The court also ruled that Liberty University had standing to lodge its pre-enforcement challenge of the employer mandate, and that the individual named plaintiffs had standing to challenge the individual mandate.)

On the merits, the court ruled that the employer mandate is a valid exercise of Congress's Commerce Clause authority.  (Recall that five members of the Supreme Court in NFIB said that the individual mandate exceeded Congress's Commerce Clause authority, even if it fell within Congress's taxation power.)  What's the difference between the employer mandate and the individual mandate?  In short, unlike individuals who have not purchased health insurance, employers operate in interstate commerce, and health insurance is part of their employees' compensation package, which itself is regulable under the Commerce Clause.  The Fourth Circuit explained:

To begin, we note that unlike the individual mandate . . . the employer mandate does not seek to create commerce in order to regulate it.  In contrast to individuals, all employers are, by their very nature, engaged in economic activity.  All employers are in the market for labor.  And to the extent that the employer mandate compels employers in interstate commerce to do something, it does not compel them to "become active in commerce," [NFIB, emphasis in original]; it merely "regulate[s] existing commercial activity," id., i.e., the compensation of employees . . . .

Further, contrary to Liberty's assertion, the employer mandate does not require employers to "purchase an unwanted product." . . .  Although some employers may have to increase employee compensation (by offering new or modified health insurance coverage), employers are free to self-insure, and many do.

(Interestingly, the court dropped a footnote, note 7, that says, "We express no opinion as to whether the limitation on the commerce power announced by five justices in NFIB constitutes a holding of the Court."  We covered that topic here.)

Following NFIB, the court also upheld the individual mandate under Congress's taxing power, and applied that ruling to uphold the employer mandate under Congress's taxing power.

The court also rejected the plaintiffs' religion claims--based on the First and Fifth Amendments (equal protection) and the Religious Freedom Restoration Act.

SDS

July 12, 2013 in Cases and Case Materials, Commerce Clause, Congressional Authority, Establishment Clause, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Thursday, July 11, 2013

Daily Read: Marci Hamilton on Hobby Lobby

Should a for-profit corporation have free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment as the en banc Tenth Circuit held in Hobby Lobby, Inc. v. Sebelius?

Marci-Hamilton_039-RET-flat-FINALConLawProf Marci Hamilton thinks not.  In her column over at Justia, Hamilton (pictured right) provides cogent arguments countering the majority's opinion. 

Hamilton ultimately contends that RFRA, at least as interpreted by the Tenth Circuit, is unconstitutional under the Establishment Clause in that it means that "large for-profit employers, who may not discriminate in hiring based on religion, can still coerce their employees into following their religious beliefs." 

Hamilton's even larger argument, however, involves the relationship between religion and capitalism in our constitutional democracy.  Assume, she argues, that Hobby Lobby and similar companies

assert that they don’t mind losing money from those who don’t share their religious beliefs.  Or to put it another way, they really only want business from those who share their religious beliefs.  That is the slippery slope on which the Tenth Circuit has set free exercise reasoning.

That isn’t capitalism, which, when working as it should, is driven by the quality of products and competition on price, regardless of the political or religious beliefs of the producer and purchaser.  It is Balkanization, and a first step on the path to the religious wars we in the United States have avoided so far.

Yet perhaps the owners of Hobby Lobby is not anticipating that consumers will actually know that it is an entity with specific religious beliefs rather than simply a store selling sequins?

Whatever the beliefs of the owners of Hobby Lobby, however, Hamilton's column is a must read on the contentious issue of recognizing religious freedoms of for-profit companies.

RR

July 11, 2013 in Establishment Clause, First Amendment, Free Exercise Clause, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0) | TrackBack (0)