Sunday, November 11, 2012

Falsely Wearing Military Medals: Fourth Circuit Finds No First Amendment Violation

In its opinion in United States v. Hamilton, the Fourth Circuit rejected First Amendment arguments and upheld the conviction of a veteran for the wearing a military uniform without authorization, in violation of 18 U.S.C. § 702; and the wearing military medals and other insignia (military medals) without authorization, in violation of 18 U.S.C. § 704(a) and (d).

337px-Bronze_Star_medalHamilton is a veteran, honorably discharged in 1962 from the Marine Corp. because of an accidental injury during training, but as the Fourth Circuit described, he "served a total of nine months and twelve days of active duty. During his active duty, Hamilton did not serve in combat or receive any awards, was not commissioned as an officer, and was not deployed outside the United States."   Two of the charges against Hamilton involved fraudulent claims of disability, exceeding the original disability; the Fourth Circuit affirmed these convictions over arguments of insufficient evidence.

The First Amendment challenges to what the Fourth Circuit labels the "insignia convictions" arose from Hamilton's appearance at a local Vietnam Veteran's Association "recognition ceremony."  Hamilton, invited to speak as a last-minute substitute, and uncompensated, wore "the uniform of a United States Marine colonel, including an officer’s sword and belt, and white gloves," and adorned with many medals, including " two Navy Crosses, four Silver Stars, one Bronze Star, and seven Purple Hearts, among many other awards displayed on the uniform."  While the Fourth Circuit noted that Hamilton's speech contained false statements, such as his purported combat experiences, it stated that "the content of that speech has no impact on Hamilton’s insignia convictions." 

Indeed, the Fourth Circuit distinguished Hamilton's "insignia convictions" from the content of his speech - - - and thus from the Supreme Court's decision last term in United States v. Alvarez - - - by concluding that the "insignia statutes do not regulate pure speech but instead proscribe certain forms of expressive conduct."  Thus, it considered the lower standard of intermediate scrutiny as articulated by the United States Supreme Court in the 1968 case of United States v. O’Brien, arising from the burning of a draft card as a protest to the Vietnam War.  Yet the Fourth Circuit held that even under a more demanding standard of exacting scrutiny, the insignia statutes were constitutional.

Its conclusion that the government interest was compelling rested on its conclusion that unauthorized wearing of uniforms and medals contributed to a dilution of their worth, citing Alvarez.  As to whether the criminal prohibitions were narrowly tailored, the Fourth Circuit distinguished Alvarez, concluding that the alternatives Hamilton suggested were "less applicable to the interests underlying the conduct-based prohibitions of the insignia statutes than the speech-based prohibition of 18 U.S.C. § 704(b)," at issue in Alvarez.  The Fourth Circuit's analysis supporting the distinction is less than trenchant: the opinion stressed that:

the wearing of an unearned medal or uniform of an unearned rank is more convincing evidence of such actual attainment than words alone, by constituting ostensible, visual "confirmation" that the wearer earned such honors. As expressed by a familiar adage, "seeing is believing."

Thus, the alternatives approved in Alvarez - - - counter speech and a government database of recipients - - - were less effective.  In sum, the panel concluded

that the analyses employed in the plurality and concurring opinions in Alvarez are inapplicable here. Although the governmental interests underlying the insignia statutes and Section 704(b) are similar, those interests are more greatly affected with respect to the conduct-related prohibitions in the insignia stat- utes than the speech-related prohibitions in Section 704(b) [at issue in Alvarez]. Moreover, the less burdensome alternatives identified by the plurality and concurrence in Alvarez, such as counterspeech and the possibility of a government-created database of Congressional Medal of Honor winners, are less feasible and less effective to counter the appearance created by the wearing of military uniforms and unearned military honors at issue in this case.

The panel's rejection of Alvarez on the basis that Hamilton's speech was more effective, rather than a conclusion that Hamilton's speech was less protected, is a rather troubling one. 

[image: Bronze Star via]

November 11, 2012 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Colbert's Humor on New York Dance Case

For those ConLawProfs considering the recent New York tax exemption case regarding different types of artistic dance - - - and thus raising an implicit First Amendment issue - - - The Colbert Report video from last Friday might be enlightening, or at least a provocative, intervention:


Profs considering showing this in class should definitely view the entire video and use their best judgment about whether or not it is suitable.



November 11, 2012 in First Amendment, Speech, Television | Permalink | Comments (0) | TrackBack (0)

Friday, November 9, 2012

Daily Read: Iron Curtain and Constitutional Rights

9780385515696_custom-07bec2eeb38f9203f224afe4e12dd9d64e1a0026-s15Anne Applebaum's new book, Iron Curtain: The Crushing of Eastern Europe 1945-1956, is a sequel of sorts to her book Gulag, which won the Pulitzer prize.  In a recent interview with Terry Gross on Fresh Air, Applebaum talked about the centrality of controlled media and art to Soviet Communist domination. 

For example, there was a government suppression of "abstract art":

The fear of abstract art is that it could be interpreted in many ways, and who knows what you could read into a painting that didn't have a clear message? One of the obsessions that the Soviet Union and the Eastern European communist parties had was always controlling the message — all information that everybody gets has to be carefully controlled and monitored. Art was no exception. Art was supposed to tell a story, it was supposed to have a happy ending, it was supposed to teach, it was supposed to support the ideals of the party. There was no such thing as art for art's sake, and there was no such thing as art reaching into some kind of spiritual, wordless realm. No, art was done in service of the state, and it was something that was going to help mold people and create citizens who do what the state tells them, and who follow the rules.

While her project is not a comparative one, her book demonstrates the centrality of the constellation of rights protected under the United States' Constitution's First Amendment, including expression, media, and religion.  Also important would be any rights of habeas corpus, due process, and those pertaining to criminal procedure as a means of resistance to government oppression. 


November 9, 2012 in Books, Comparative Constitutionalism, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, November 8, 2012

Federal Judge Enjoins California Prop 35 Requiring Sex Offender Internet Disclosures

In a brief order in Doe v. Harris, federal district judge Thelton Henderson has issued a temporary restraining order of the implementation of Proposition 35 that requires sex offenders to disclose their internet providers and identities to law enforcement.

California ballot
As described by the motion, filed by the ACLU, "the Californians Against Sexual Exploitation Act (“CASE Act” or “Act”), was enacted by voter initiative" Tuesday and is effective Wednesday:

It expressly requires all of the 73,900 current California registrants currently living in the community to “immediately” provide the police with information about their access to and use of the Internet for expressive purposes; they must also document and disclose any additions or changes to such information within 24 hours. A failure to comply with any of these new requirements is a crime, often a felony.

The challengers argue that the law is an unconstitutional infringement on anonymous speech, that its discrimination amongst speakers warrants strict scrutiny, and that its requirements are not sufficiently tailored to meet either strict scrutiny or intermediate scrutiny.

The judge found that there were sufficiently serious First Amendment issues for a temporary restraining order to issue.

The order scheduled an expedited filing schedule with a hearing set for November 20.


November 8, 2012 in First Amendment, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 6, 2012

First Amendment Problems With Prohibitions of Election Documentation?

628x471Smartphone cameras plus social media distribution pose many possibilities of First Amendment challenges to laws prohibiting recording, such as the recording of law enforcement officers as we've previously discussed. 

On Election day, the existence of a wide array of laws prohibiting recording inside polling places - - - collected at Citizen Law Media Project - - - might be violated by a casual posting of a ballot to a facebook page.  Although many of the statutes seem to be aimed at prohibiting voter intimidation or at regulation of the media, and thus their extension to the recording of one's own vote would seem a matter of statutory construction, any construction would occur in light of the First Amendment, as would the intimidation and media regulations.  Of special constitutional concern are the laws and regulations that delegate (seemingly total?) discretion to local polling officials. 

The First Amendment interests involved would not only be the personal/artistic ones of an interesting facebook page or personal scrapbook, but also ones more central to democracy, such as identifying problems with voting protocols such as the machinery recording an incorrect vote (video below).



[image of ballot via]


November 6, 2012 in Current Affairs, Elections and Voting, First Amendment, News | Permalink | Comments (0) | TrackBack (0)

Monday, November 5, 2012

D.C. Circuit Says Navy Chaplains Have Standing to Challenge Promotion Policies

A three-judge panel of the D.C. Circuit ruled in In re Navy Chaplaincy that Navy chaplains have standing to lodge their Establishment Clause claims against the Navy's chaplain promotion policies.  The court also ruled that the lower court issued insufficient factual findings for it to review the chaplains' likelihood of success on the merits in evaluating their motion for a preliminary injunction.  The court thus reversed the lower court ruling and remanded for further findings.  In short, the ruling means that the case will go back to the lower court for additional findings related to one of the chaplains' Establishment Clause claims on their motion for a preliminary injunction.

The chaplains argued that Navy policies violated the Establishment Clause in two ways.  First, they argued that the Navy improperly delegated government authority over promotion decisions to a religious entity by allowing chaplains themselves to make promotion decisions without sufficient, secular standards.  Next, they argued that the Navy's promotion procedure--small selection boards, secret votes, and the appointment of the Chief of Chaplains as president--have resulted in denominational discrimination and, if not, will likely result in such discrimination in the future.

The district court ruled that the chaplains lacked standing (because they alleged future speculative harms, not imminent harms) and that they were unlikely to succeed on either substantive claim.  It thus dismissed the case and alternatively rejected the chaplains' motion for a preliminary injunction.

The D.C. Circuit reversed.  It ruled that the chaplains had standing, because they challenged actual policies that the Navy planned to use in the future, and because at least some chaplains will probably appear before selection boards in the near future.  Comparing the case to City of Los Angeles v. Lyons the court wrote, "Unlike in other cases, like Lyons, where plaintiffs speculated about the very existence of the unwritten discriminatory practices at issue, here the Navy acknowledges that the challenged policies and procedures not only exist, but will continue to govern the conduct of future selection boards."  Op. at 9.

The court agreed with the district court that the chaplains were unlikely to succeed on their first substantive claim--the one about delegation of authority to a religious entity without standards.  (The court wrote that there were standards, making this case a "far cry from the 'standardless' delegation scheme at issue in [Larkin v. Grendel's Den, Inc.]."  Op. at 14.  But the court said that the lower court didn't issue sufficient facts for it to evaluate the second claim--the one about the likely discriminatory effects of the promotion procedure.  It thus remanded the case for findings on this claim.


November 5, 2012 in Cases and Case Materials, Establishment Clause, First Amendment, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Frontline on Montana Campaign Finance

PBS's Frontline released a documentary last week on campaign finance in Montana that's well worth a look.  The documentary provides background on American Tradition Partnership v. Bullock, the case challenging Montana's restriction on independent campaign expenditures.  The Supreme Court summarily reversed a lower court ruling in that case upholding the restriction.

We covered the Supreme Court's recent rejection of an application to vacate the Ninth Circuit's stay of a lower court ruling that Montana's campaign contribution limits violated the First Amendment.


November 5, 2012 in Campaign Finance, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, November 1, 2012

Common Cause Challenges Indiana Judicial Elections

The Wall Street Journal reports that Common Cause sued the Indiana Secretary of State over judicial elections in Marion County, arguing that the process deprives voters of a meaning vote in violation of the First Amendment.

Here's the problem, from Paragraph 1 of the complaint:

[E]ach of the major political parties--the Democratic and Republican parties--nominates, through primary elections, candidates to fill precisely half of the seats to be filled.  In 2012 and in recent history, no candidate for Marion Superior Court other than those nominated by the major political parties has qualified for the ballot at a general election.  The general election is therefore of no significance whatsoever because the ballot only contains the names of judges who will ultimately be elected; rather, the only meaningful votes cast for Marion Superior Court are cast in the primary elections for the major political parties.  Thus, a person who does not vote in a primary election is never afforded an opportunity to cast a meaningful vote for any judgeship on the Marion Superior Court.  And even a person who votes in one of the primary elections is never afforded an opportunity to cast a meaningful vote for half of the judgeships on the Marion Superior Court.

Under Indiana law, a party gets to nominate candidates for half the number of seats available in the general election.  In theory, this would allow several political parties to nominate candidates for half the seats, thus giving voters a real choice in the general election.  But "in 2012 and in recent history," only the two major political parties nominated candidates.  With just two parties each nominating only half the number of candidates, the general election gives voters no real choice.  Common Cause says that this violates the First Amendment.


November 1, 2012 in Cases and Case Materials, Courts and Judging, First Amendment, News | Permalink | Comments (0) | TrackBack (0)

Friday, October 26, 2012

Sixth Circuit Rejects First Amendment Claim of Anti-Muslim Advertisers

In its opinion in American Freedom Defense Initiative v. Suburban Mobility for Regional Transportation (SMART), the Sixth Circuit upheld SMART's rejection of advertisements for city buses.

SMART BUSThe potentional advertising group, American Freedom Defense Initiative, is indeed the same one whose advertisements on NYC subways caused controversy last month.  The Sixth Circuit, unlike the district judge in New York, rejected the Intiative's First Amendment claim when it challenged the refusal to run its advertisements.  In large part, the distinction between the two situations rests upon the policies of the transportation agencies.

SMART, a state transportation agency in Southern Michigan, does allow advertising on its vehicles, but its policy prohibits several categories of advertising including "political or political campaign advertising" and "advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons."  SMART - - - wisely - - - rested its rejection on the political rationale.  The advertisement that SMART had refused read: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers!"   Interestingly, to determine the meaning of "political," the court not only consulted the website in the advertisement but found confirmation in the language of American Freedom Defense Initiative's own complaint: 

According to the complaint, AFDI “acts against the treason being committed by national, state, and local government officials . . . in their capitulation to the global jihad and Islamic supremacism.” Compl. ¶ 7. The complaint explains that AFDI “promotes its political objectives by, inter alia, sponsoring anti-jihad bus and billboard campaigns, which includes seeking advertising space on SMART vehicles.” Id. ¶ 8. By its own admission, therefore, AFDI sought to place advertisements on the SMART vehicle to “promote[] its political objectives.” Moreover, by denying the placement of the fatwa advertisement, AFDI alleges that SMART “denied Plaintiffs’ advertisement, and thus denied Plaintiffs access to a public forum to express their political and religious message.” Id. ¶ 21. AFDI understood its own advertisement to contain a political message; therefore, it would be reasonable for SMART to read the same advertisement and reach the same conclusion.

 Doctrinally, SMART's ability to enforce a political exclusion rests upon the court's acceptance of the city buses as nonpublic forums.  Yet there is some circularity here:  SMART's "tight control" over the advertising space, as well as the fact that it "has banned political advertisements, speech that is the hallmark of a public forum" support the court's conclusion. 

The panel recognized that there are close calls, and even suggested an advertisement that would not be political, but ultimately validated SMART's call as correct and consistent with its practices.


October 26, 2012 in First Amendment, Opinion Analysis, Race, Religion, Speech | Permalink | Comments (1) | TrackBack (0)

Thursday, October 25, 2012

Doe v. Reed: Moot at Last?

In what should be the final opinion in the extended saga of the quest for anonymity by "Protect Marriage" members and supporters, the Ninth Circuit declared the case moot.

Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA),  RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiatives.  The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization.  The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.

Subsequently, on remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes. The Ninth Circuit denied the request for an emergency stay last year.

Now, the Ninth Circuit panel unanimously finds the case moot.  The panel discussed an exception to the mootness doctrine under a two-prong test: “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.”  The panel quickly found that prong one was not satisfied and therefore did not reach the second issue.

Concurring, Judge N.R. Smith disagreed on the mootness question, essentially holding that the matter was not moot because the court could attempt to at least narrow the dissemnination of the information.  However, Judge Smith's conclusion on the merits was interwoven with the mootness arguments.  He reasoned that Protect Marriage's  "arguments regarding the merits of the burden on their First Amendment rights is incongruent with the mootness argument, because it discusses a burden caused by the government action of disclosing identities at all. Plaintiffs cannot have it both ways."

While Protect Marriage may file a petition for writ of certiorari, it seems highly unlikely Doe v. reed will be returning to the Supreme Court again.


October 25, 2012 in Cases and Case Materials, First Amendment, Mootness, Nondelegation Doctrine, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)

Wednesday, October 24, 2012

Complaint Sufficiently Alleges Constitutional Violations Against University Officials

A three-judge panel of the Ninth Circuit ruled in OSU Student Alliance v. Ray that a conservative student newspaper at Oregon State sufficiently alleged constitutional claims against university officials after they removed the newspaper's distribution bins from around campus and limited the locations where the newspaper could replace the bins.  The ruling reverses a lower court ruling dismissing the case, allows the plaintiffs to amend their complaint as to certain defendants, and means that the case will move forward on the merits.

The case arose when Oregon State officials removed distribution bins of the conservative Liberty newspaper, published by the Student Alliance.  Officials did not similarly remove distribution bins of the official student newspaper, the Daily Barometer, or outside newspapers (like USAToday).  Officials claimed that they were enforcing an unwritten policy prescribing the acceptable campus locations for outside newspaper distribution bins.  Officials treated the Liberty as an outside newspaper, even though it has a student editorial staff, because its funding came almost exclusively from outside sources--donations and advertising.  In contrast, the Daily Barometer received university funding through the student government.  Officials said that this distinction explained why they treated Liberty bins differently than Daily Barometer bins, but it obviously didn't explain why it treated Liberty bins differently than USAToday bins. 

The newspaper sued under 42 U.S.C. Sec. 1983, arguing that four university officials--the president, a vice-president, the vice-provost for student affairs, and the director of facilities services--violated their rights to free speech, due process, and equal protection.  The district court dismissed the claims for injunctive and declaratory relief after the school changed its policy; and it dismissed the claims for damages because the plaintiffs didn't plead that any of the four defendants participated in the confiscation of the newsbins.

The Ninth Circuit reversed.  It ruled that the plaintiffs sufficiently pleaded that the certain defendants "caused" a "deprivation of federal right" and remanded to allow the plaintiffs to replead as to others.

As to the deprivation, the court said that the OSU campus is "at least a designated public forum," that the unwritten "policy" left university officials with unbridled discretion (alone enough to doom the policy), and that any standard (identified only post hoc) that distinguished between on-campus and outside publications bore no relationship to the school's interest in reducing clutter around campus.  "OSU's standardless policy cannot qualify as a valid time, place, and manner restriction."  Op. at 12778.  And the plaintiffs correctly pleaded that it was viewpoint discrimination.

The court also said that the plaintiffs sufficiently pleaded an equal protection violation, because they pleaded that the university treated them differently than a similarly situated newspaper in a way that trenched on a fundamental right (free speech).  It also said that the plaintiffs adequately pleaded that the defendants removed their bins without prior notice in violation of due process.

As to causation, the court recognized that "[s]ome of the plaintiffs' claims raise thorny questions under Iqbal."  Claims against the director of facilities management were easiest, because that official was directly involved in the confiscation and relocation policy.  But the court said that claims against the president and vice-president (the director's supervisors) had to show the requisite intent under Iqbal.  The court said that the plaintiffs sufficiently pleaded that the president and vice-president knew of the director's violations of free speech--that knowledge (and not specific intent) is the relevant state of mind required for a free speech violation.  (Recall that the Supreme Court required the plaintiffs to plead specific intent for equal protection and free exercise violations in Iqbal.)

The court wrote that the complaint sufficiently tied the director of facilities to the due process violation--that he was responsible for the unwritten bin policy, and that the confiscation happened pursuant to the policy--but that it didn't sufficiently tie the president and vice-president to the policy. 

As to the vice-provost, the court said that the complaint didn't sufficiently allege that he knew of the free speech violations and that he wasn't sufficiently tied to the due process violation. 

The court remanded the case to allow the plaintiffs to amend their complaint to bring in the president and the vice-president on the due process claims and the vice-provost on any claims.

Judge Ikuta dissented in part, arguing that the majority's approach as to the president and vice-president "resurrects the very kind of supervisory liability that Iqbal interred."


October 24, 2012 in Cases and Case Materials, Equal Protection, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Recent Cases, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 23, 2012

Supreme Court Rejects Application to Vacate Montana Campaign Finance Ruling

The Supreme Court today rejected an application to vacate the Ninth Circuit's stay of District Judge Lovell's earlier decision that Montana's low campaign contribution limits violated the First Amendment.  (Thanks to Emily Phelps over at the Constitutional Accountability Center's Text and History Blog for the tip.)  This latest ruling in Lair v. Bullock means that Montana's contribution limits will remain in place pending appeal to the Ninth Circuit and, in particular, through the election.  All signs now point to a Ninth Circuit reversal of Judge Lovell's ruling that the contribution limits violated the First Amendment.

Our most recent post on the case, with links to earlier decisions and background, is here.  Phelps's post at CAC's Text and History blog, with more on the political context of the case, is here.


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

New York Court of Appeals Allows Distinctions Amongst Dance

In a divided opinion today, New York's highest court denied a tax exemption for an adult juice bar in In the Matter of 677 New Loudon v. State of NY Tax Appeals Tribunal.  The juice bar, at which there are dance performances, argued that admission fees should not be taxed under the rules governing a "place of amusement in the state" but included in the exemption for "dramatic or musical arts performances."  The majority rejected this contention in less than 5 pages.

In Judge Smith's equally brief dissent, joined by Chief Judge Lippman and Judge Read, the First Amendment aspects of the differential tax are explicitly raised:

Like the majority and the [Tax] Tribunal, I find this particular form of dance unedifying -- indeed, I am stuffy enough to find it distasteful. Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker. I would be appalled, however, if the State were to exact from Hustler a tax that the New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently "cultural and artistic." That sort of discrimination on the basis of content would surely be unconstitutional (see Arkansas Writers' Project, Inc. v Ragland, 481 US 221, 229-230 [1987]). It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing.

It is easy to imagine the attorneys for the adult juice bar considering a petition for writ of certiorari to the United States Supreme Court raising First Amendment claims, although the constitutional status of dancing as expressive speech is not as firmly established as that of newspapers.

[image: Ernst Ludwig Kirchner: Hamburger Tänzerinnen, 1910 via]


October 23, 2012 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Daily Read: Collins on Toobin on the Court

Over at SCOTUSBlog, ConLawProf Ron Collins has a terrific Q & A with Jeffrey Toobin about Toobin's latest book, The Oath.

Here's an especially intriguing sample:


In The Oath you refer to Justice Clarence Thomas [pictured] as a “conservative intellectual path-breaker.”  You mention this in the context of some of his First Amendment opinions.  Of the 29 First Amendment free expression opinions rendered by the Roberts Court, however, 419px-Clarence_Thomas_officialJustice Thomas has authored only two majority opinions, neither of which was path-breaking. (See Reichle v. Howards, 2012 (8-0) and Washington State Grange v. Washington State Rep. Party, 2008 (7-2)). 

In what sense, then, do you seem him as a First Amendment “path-breaker”? Which of his separate opinions do you see as point the path to future First Amendment precedents?


 One of the many paradoxes of Justice Thomas’s tenure is that he has been influential without writing many important majority opinions. Indeed, it is difficult to think of a Justice who has been in the majority as often as Thomas for as long as Thomas and written so few important majority opinions. (Indeed, here’s an interesting exercise: What’s the most important majority opinion Thomas has written?  Beats me.)

Still, I think Thomas’s concurrence in McIntyre v. Ohio Elections Commission and his dissent in Nixon v. Shrink Missouri Government PAC include themes that are clearly reflected in Justice Kennedy’s decision in Citizens United.


Collins and Toobin also discuss Roberts on affirmative action and the Court's work load.  An interesting read!



October 23, 2012 in Books, Courts and Judging, First Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, October 19, 2012

Students' Offensive Web-Site Likely Not Protected by Free Speech

A three-judge panel of the Eighth Circuit ruled this week in S.J.W. v. Lee's Summit R-7 School District that two students were not likely to succeed on the merits of their First Amendment challenge to their suspension from school for creating and blogging on an offensive web-site directed at their school and its community.  The ruling reverses an earlier district court injunction against the school and almost certainly means that the two students will have to leave the school under their original suspension and attend a different school.

The case arose out of a web-site created by two eleventh-grade students, twins, at Lee's Summit North High School.  The web-site, called NorthPress, included a blog on which the students posted a variety of offensive and racist comments and sexually explicit and degrading comments about particular female classmates.  A third student added another racist post.

The students said they told only a small group of friends about the site.  But word quickly spread (as you might expect), and, as soon as it did, Lee's Summit North suspended the two students for 180 days but allowed them to enroll in another school, Summit Ridge Academy, for the duration of their suspensions.

The students sued and sought a preliminary injunction.  The district court found that the web-site "caused considerable disturbance and disruption [in the school] on Friday, the 16th," and that the blog was targeted at the school.  But it nevertheless issued a preliminary injunction (finding, among other things, a likelihood of success on the merits of the students' First Amendment claim).

The Eighth Circuit reversed.  Applying Tinker v. Des Moines Ind. Community Schools--the part that says student speech that materially disrupts classwork is unprotected--the panel ruled that the students were not likely to succeed on the merits, because they targeted the blog at the school and because it caused disruption in the school.  The court, citing its own law and the law of other circuits, said that it didn't matter that the blog was physically off-campus; it was enough that the blog was directed at the school and disrupted classwork there.

The court also rejected the students' claim that absent a preliminary injunction they'd suffer irreparable harm.  The court said that they could attend Summit Ridge, and they'd already suffered any harm that they claimed as a result of attending Summit Ridge (and not Lee's Summit North).


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

Wednesday, October 17, 2012

Ninth Circuit Stays Lower Court, Retains Montana Contribution Limits Pending Appeal

A three-judge motions panel of the Ninth Circuit in Lair v. Bullock granted Montana's motion to stay District Judge Lovell's earlier decision that Montana's low campaign contribution limits violated the First Amendment.  (Recall that the panel previously granted a temporary stay.  Here's some background.)  The ruling means that Montana's campaign contribution limits remain in place pending appeal and sends a strong signal that the Ninth Circuit will reverse Judge Lovell's decision and uphold the limits.

The panel reaffirmed its own ruling in Montana Right to Life Ass'n v. Eddleman (upholding Montana's low campaign contribution limits against a First Amendment challenge) and rejected any notion that the Supreme Court's ruling in Randall v. Sorrell (overturning Vermont's low campaign contribution limits) abrogated Eddleman.  Here's what the Ninth Circuit panel said:

We conclude that the State of Montana has made a strong showing that a merits panel of this Court will likely conclude that, absent en banc proceedings or an intervening decision of the Supreme Court, we remain bound by our decision in Eddleman.  We also conclude that a merits panel is likely to hold that the analytical framework of the Supreme Court's decision in Randall does not alter the analysis of Buckley or Shrink Missouri in a way that affects our decision in Eddleman, for three reasons.  First, there is no opinion of the Court in Randall.  Second, even if we thought that Justice Breyer's plurality opinioin represented the narrowest view of a majority of the Court, it did not depart from the principles of Buckley and Shrink Missouri that we applied in Eddleman.  Third, even if we applied Randall to [the Montana limits], we cannot find, on the basis of the district court's findings, reason to disagree with, much less overturn, Eddleman.  In light of Montana's interest in regulating campaign contributions, the lack of evidence that other parties will be substantially injured, and the public's substantial interest in the stability of its electoral system in the final weeks leading to an election, we will stay the order pending the state's appeal.

Op. at 3-4.


October 17, 2012 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, October 15, 2012

Developments in Montana Campaign Contribution Case

Recall that District Judge Charles C. Lovell (Montana) ruled earlier this month in Lair v. Murry that Montana's low campaign contribution limits for individuals and political parties violated the First Amendment and permanently enjoined the state from enforcing those limits.  Judge Lovell wrote that he'd issue more detailed findings and conclusions soon.  (He did; see below.)

But late last week, before Judge Lovell issued his follow-up, the Ninth Circuit issued a temporary stay of Judge Lovell's ruling, putting the limits back into place pending further action by the Ninth Circuit.  The three-judge panel wrote that Judge Lovell's original ruling contained no findings and conclusions, and thus "the court is severely constrained in its consideration of the underlying issues raised in the emergency motion [for a temporary stay], including whether, in light of Randall v. Sorrell . . . our decision in Montana Right to Life Ass'n v. Eddleman . . . must be revisited."

A little background.  The Ninth Circuit previously upheld Montana's low limits against a First Amendment challenge in Montana Right to Life Ass'n in 2003.  The Ninth Circuit in Montana Right to Life Ass'n relied on the Supreme Court's Nixon v. Shrink Missouri Government PAC (2000), which rejected a claimed constitutional minimum on campaign contributions and instead said the test was whether Missouri's contribution limit was so low as to impede the ability of the candidates to amass the resources necessary for effective advocacy.  But since 2003, the Supreme Court overturned Vermont's ultra-low contribution limits in Randall v. Sorrell (2006).  Thus, the Ninth Circuit panel wondered whether Judge Lovell thought that Randall v. Sorrell abrogated circuit law in Montana Right to Life Ass'n.

Judge Lovell answered that question later last week, when he issued his promised findings and conclusions.  He wrote,

The Randall opinion is directly on point here.  The Randall decision undeniably paints a new gloss on the law and provides important insight into the lower bound for contribution limits.  Randall is intervening law that obviates Montana Right to Life's precedential value, particularly in light of the Randall plurality's expressed suspicion of Montana's contribution limits.

Op. at 28.

The case is now in the Ninth Circuit's court.  While its temporary stay is still in effect, the court may revoke it in light of Judge Lovell's findings, or it may not.  Whatever the court does with its temporary stay, it looks like the appeal will move forward.  The Ninth Circuit established a page for the case here.


October 15, 2012 in Campaign Finance, Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit: Yellow Pages Entitled to Strict Scrutiny as Protected Speech

The Ninth Circuit's opinion today in Dex Media West v. City of Seattle concerns a challenge to a Seattle ordinance regulating "yellow pages" phone directories for the purposes of waste reduction, resident privacy, and cost recovery of the directories. 

The bulk of the panel's opinion is devoted to the issue of whether the commercial speech standard or the higher strict scrutiny standard should apply.  The panel ruled that the commercial speech portions of yellow pages directories were inextricably intertwined with the noncommercial aspects AND that the yellow page directories "as a threshold matter" "do not constitute commercial speech under the tests of Virginia Pharmacy and Bolger." [Virginia Pharmacy Bd. v. Va. Consumer Council, Inc., 425 U.S. 748 (1976); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)].

In protecting the yellow pages directories by subjecting regulations to strict scrutiny review, the panel essentially found that the divide between the yellow pages and newspapers was simply too thin:

To be sure, the Yellow Pages Companies are in the business of selling advertisements and contracted to distribute the noncommercial speech to make their advertising space more desirable due to greater directory use. But it is important to keep in mind that the First Amendment protections available to newspapers and similar media do not apply only to those institutions of the type who “have played an historic role in our democracy.” To assume that every protected newspaper, magazine, television show, or tabloid’s “noncommercial” content precedes and takes priority over the publishing parent company’s desire to sell advertising is at odds with reality and the evidence in the record.

Ultimately, we do not see a principled reason to treat telephone directories differently from newspapers, magazines, television programs, radio shows, and similar media that does not turn on an evaluation of their contents.

The panel concluded, therefore, that "the yellow pages directories are entitled to full First Amendment protection."

The panel did not consider whether any of the proferred governmental purposes were compelling because it decided the ordinance was not "the least restrictive means available to further them."  It stated that Seattle could support the  companies' own opt-out programs or even simply fine the companies rather than compel them to finance the city's programs.  Thus, the ordinance was declared unconstitutional.

[image via]


October 15, 2012 in Books, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Read: Arlen Specter on the Wall Between Church and State

Senator Arlen Specter (pictured), who died yesterday, was known for his involvement with many constitutional law issues including Supreme Court Justice nominations.

Arlen_Specter_official_portraitHe also had a few things to say about the Establishment Clause:

The central problem with basing public policy on faith or religious belief is that, inevitably, there is the question of whose faith or religious belief. Put prayer in the schools and inevitably it becomes a question of whose prayer. Let us remember that most American Catholics began sending their children to parochial schools not because there was no prayer in America's public schools, but because the prayer that was there was the wrong kind of prayer. If we institutionalize school prayer, can we seriously expect that religious groups will not want to have some control over about the form and content of those prayers? Indeed, who other than religious groups could we possibly expect to fashion prayers and forms of devotion?

Arlen Specter, Defending the Wall: Maintaining Church/State Separation in America, 18 Harv. J.L. & Pub. Pol'y 575 (1995). 

Specter's essay explicitly states it was prompted by his "incidental reference" to "the basic American principle of separation of church and state” during the 1994 Iowa State Republican Convention that "caused the hall to erupt with boos." 

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October 15, 2012 in First Amendment, News, Religion | Permalink | Comments (0) | TrackBack (0)

Friday, October 12, 2012

Rabbis File Complaint Against NYC Regulation Requiring Circumcision Notice

The complaint filed in the Southern District of New York federal court in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene challenges the constitutionality of a recently passed regulation regulating circumcision on the basis of the First Amendment.  This is a much more narrow regulation that the San Francisco proposal to ban all male circumcision.

The NYC regulation, §181.21, goes into effect October 21 and amends the NYC Health Code, by requiring specific consent and a warning for "oral suction" circumcision:

A person may not perform a circumcision that involves direct oral suction on an infant under one year of age, without obtaining, prior to the circumcision, the written signed and dated consent of a parent or legal guardian of the infant being circumcised using a form provided by the Department or a form which shall be labeled “Consent to perform oral suction during circumcision,” and which at a minimum shall include the infant’s date of birth, the full printed name of the infant’s parent(s), the name of the individual performing the circumcision and the following statement: “I understand that direct oral suction will be performed on my child and that the New York City Department of Health and Mental Hygiene advises parents that direct oral suction should not be performed because it exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.”

The complaint's first count contends that the city may not compel speech absent a satisfaction of strict scrutiny, and that the section requires the person performing the circumcision - - - the mohelim in Orthodox Jewish tradition - - - to disseminate advice that he would not otherwise give, with which he disagrees, and that is a "value-based opinion" rather than a fact.  Interestingly, this is similar to the arguments against abortion consent procedures and warnings, although the complaint also notes that the mohelim are not commercial or professional actors.

The second - - - and perhaps more predictable count - - - sounds under the First Amendment's free exercise clause (and a subsequent count invokes the New York Constitution's similar clause).  The complaint alleges that the regulation was

designed to target the “practice known as metzitzah b’peh,” and the Department’s deputy commissioner for disease control described the regulation as an effort to “regulat[e] how part of a religious procedure is done”

This "targeting," of course, would mean the law would be subject to strict scrutiny under 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.  The ordinance of City of Hialeah had exemptions for other types of slaughter, a problem not only as to the "targeting" inquiry, but also as to the application of strict scrutiny.  



October 12, 2012 in First Amendment, Fourteenth Amendment, Religion, Speech | Permalink | Comments (0) | TrackBack (0)