Monday, March 4, 2013
Affirming the grant of a preliminary injunction a year ago, a panel of the Ninth Circuit has unanimously upheld Judge Susan Bolton's conclusion that the plaintiffs demonstrated a likelihood of success on the merits of their First Amendment challenge to SB1070's day labor provisions in its opinion in the case now styled as as Valle Del Sol v. Whiting.
The day labor provisions of SB1070, codified at Ariz. Rev. Stat. § 13-2928, provide:
A. It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
B. It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
The panel agreed with Judge Bolton that the day labor provisions regulate commercial speech and thus should be subject to the Central Hudson test, Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980).
The panel also agreed that the day labor provisions were content-based:
On their face, the day labor provisions target one type of speech – day labor solicitation that impedes traffic – but say nothing about other types of roadside solicitation and nonsolicitation speech. They are therefore classic examples of content-based restrictions. Our conclusion is confirmed by the stated purpose of the provisions, their legislative history and the disproportionate sanctions they impose for traffic problems arising from day labor solicitation.
Such a conclusion brings the analysis under the Supreme Court's decision in Sorrell v. IMS Health, Inc., especially as to the fourth prong of Central Hudson. However, the Ninth Circuit disclaimed reliance upon Sorrell, concluding "that the day labor provisions are deficient under even the pre-Sorrell, arguably more government-friendly, precedent urged by Arizona." The panel decided to "defer extended discussion of Sorrell for a more appropriate case with a more fully developed factual record," and simply applied Central Hudson.
The panel's analysis is direct and classic, easily finding that the day labor provisions fail each of Central Hudson's prongs, including the fourth even without the addition of Sorrell's arguably heightened standard for a content-based restriction.
In affirming the grant of the preliminary injunction, the panel highlighted the First Amendment interests at stake and agreed with the district judge that there would be irreparable harm and that the equities tipped in favor of granting the injunction.
Seemingly, if Arizona wants to regulate traffic safety, it is going to have to do so without targeting First Amendment interests.
You may have heard about California's so-called anti-paparazzi laws if you - - - or someone you know - - - is a Justin Bieber fan.
a) Notwithstanding any other provision of law, except as otherwise provided in subdivision (c) [providing for multiple penalties], any person who violates Section 21701[Interference with driver or mechanism] 21703 [Following too closely], or 23103[Reckless driving] with the intent to capture any type of visual image, sound recording, or other physical impression of another person for a commercial purpose, is guilty of a misdemeanor and not an infraction and shall be punished by imprisonment in a county jail for not more than six months and by a fine of not more than two thousand five hundred dollars ($2,500).
It’s been well-publicized that one photographer was killed in a traffic accident while tracking Bieber’s car, and another photographer, Paul Raef, was prosecuted by the LA City Attorney pursuant to §40008 for conduct while tracking Beiber’s car. The trial judge in that case dismissed the charges under §40008 as violating the First Amendment; an appellate panel is reviewing the case but has expressed preliminary doubts that the section is unconstitutional, citing Cohen v. Cowles Media Co.
Over at Justia, Julie Hilden argues that "picking out the state of mind of the paparazzi alone for censure and punishment may be a fatal mistake by the statute’s drafters." Hilden also has some things to say about the role of the press, paparazzi, and celebrities themselves.
Hawai'i is also considering an anti-paparazzi law in part because of the considerable energies being spent by Steve Tyler (yes, of Aerosmith). Hawai'i HB 465 would create a civil cause of action and passed the Senate on March 1.
ConLawProfs looking for an interesting in-class exercise - - - or even exam problem - - - might find Justin Bieber, Steven Tyler, and any other local celebrities, worth a second look.
Saturday, March 2, 2013
Benkler (pictured) makes the comparisons between the New York Times and Wikileaks, drawing not only yesterday's statement by Manning but also on a January hearing.
For Benkler, the aiding the enemy offense strikes at the heart of the First Amendment:
It prohibits not only actually aiding the enemy, giving intelligence, or protecting the enemy, but also the broader crime of communicating—directly or indirectly—with the enemy without authorization. That's the prosecution's theory here: Manning knew that the materials would be made public, and he knew that Al Qaeda or its affiliates could read the publications in which the materials would be published. Therefore, the prosecution argues, by giving the materials to WikiLeaks, Manning was “indirectly” communicating with the enemy. Under this theory, there is no need to show that the defendant wanted or intended to aid the enemy. The prosecution must show only that he communicated the potentially harmful information, knowing that the enemy could read the publications to which he leaked the materials. This would be true whether Al Qaeda searched the WikiLeaks database or the New York Times'.
Benkler's contribution is a must-read for anyone following the Manning prosecution.
Friday, March 1, 2013
No, not John Paul Cohen's jacket about the draft, central to the 1971 case of Cohen v. California.
This jacket was worn a little over a year ago and prompted an arrest as we discussed then.
Recall that the Supreme Court Building has special status, arguably as a First Amendment free-zone. And although the charges were dropped against last year's jacket wearer - - - Fitzgerald Scott - - - he brought suit in the United States District Court for the District of Columbia.
In its memorandum supporting its motion to dismiss,the United States Attorney's office includes this intriguing point heading: "The Fact that Plaintiff’s Jacket Conveyed a Message Only Reinforces the Conclusion that There Was Probable Cause for the Arrest." Essentially, the government argues that the "message" does not support a First Amendment claim of political speech targeted because of its content, but instead is a "concession" under 40 U.S.C. § 6135, prohibiting the display of items designed to bring notice to an organization or movement within the United States Supreme Court building. Recall that the Supreme Court has upheld the constitutionality of §6135.
While it seems that Scott has an uphill battle under the current precedent, his battle is certainly a reminder of Justice Thurgood's Marshall observation that the Supreme Court occupies an ironic position with regard to the First Amendment.
While there is apparently no official copy of Bradley Manning's statement, The Guardian has published a copy of Manning's lengthy statement as transcribed by independent journalist Alexa O'Brien.
At this point I decided that it made sense to try to expose the SigAct tables to an American newspaper. I first called my local news paper, The Washington Post, and spoke with a woman saying that she was a reporter. I asked her if the Washington Post would be interested in receiving information that would have enormous value to the American public.
Although we spoke for about five minutes concerning the general nature of what I possessed, I do not believe she took me seriously. She informed me that the Washington Post would possibly be interested, but that such decisions were made only after seeing the information I was referring to and after consideration by senior editors.
I then decided to contact [missed word] the most popular newspaper, The New York Times. I called the public editor number on The New York Times website. The phone rang and was answered by a machine. I went through the menu to the section for news tips. I was routed to an answering machine. I left a message stating I had access to information about Iraq and Afghanistan that I believed was very important. However, despite leaving my Skype phone number and personal email address, I never received a reply from The New York Times.
Such revelations invite an obvious comparison between Bradley Manning's plight and that of Daniel Ellsburg, who revealed The Pentagon Papers and prompted the renowned First Amendment decision in New York Times v. United States (1971). Another comparison is to a Civil War prosecution, even as courts consider First Amendment claims resisting the government subpoenas of Twitter accounts.
But Bradley Manning's case is proving unique.
The Sixth Circuit ruled earlier this week in Freedom from Religion Foundation, Inc. v. City of Warren that a city's holiday display didn't violate the Establishment Clause and that its refusal to include the petitioner's message in the display didn't violate free speech.
The City of Warren puts up a holiday display every year between Thanksgiving and New Years in the atrium of its civic center. The display includes a range of secular and religious symbols, including a lighted tree, reindeer, snowmen, a "Winter Welcome" sign, and a nativity scene. The Freedom from Religion Foundation wrote a series of letters to the Mayor asking him to remove the nativity scene, but the Mayor refused. So the Foundation asked the Mayor to include its sign in the display; the sign read:
At this season of THE WINTER SOLSTICE may reason prevail. There are no gods, no devils, no angels, No heaven or hell. There is only our natural world, religion is but myth and superstition that hardens hearts and enslaves minds.
The Mayor declined. He wrote back explaining, in his view, why the sign would "provoke controversy and hostility," why it violates this country's basic religious beliefs ("our country was founded upon basic religious beliefs"), and even why the Foundation's "non-religion is not a recognized religion" under the First Amendment. The Foundation sued, arguing that the display violated the Establishment Clause and that the Mayor's rejection of its sign violated free speech. The Sixth Circuit rejected the claims.
The Sixth Circuit ruled that the display didn't violate the Establishment Clause, becuase, under Lynch v. Donnelly (1984) and County of Allegheny v. ACLU (1989), it contained sufficiently diverse religious symbols and sufficient secular items so that it didn't unconstitutionally promote a religion or religion generally. (The court recognized that the Mayor's letter took some liberties with constitutional law: "the Mayor, apparently untrained as a lawyer, may not have missed his calling." Still, it read the letter to mean that the Mayor was principally concerned about the controversy and hostility that the sign might provoke, and not preferencing religion.)
The court ruled that the Mayor's rejection of the sign didn't violate free speech, because, under Pleasant Grove v. Summum (2009), the display was government speech, and the government doesn't have to be viewpoint neutral in its own speech. The court emphasized that the display was approved and controlled by the government, even if it included some privately-donated items.
Wednesday, February 27, 2013
In its opinion in Moore-King v. County of Chesterfield, a panel of the Fourth Circuit has upheld the constitutionality of ordinances specifically directed at those defined as "fortune tellers." The fortune tellers must have a business license, like all other businesses, but must also:
- have a special permit from the Chief of Police, the application for which must include biographical information, fingerprints, criminal history, and an authorization for a background check;
- pay a license tax of $300;
- be located within particular business districts, excluding certain other business districts.
As to the free speech claim, the Fourth Circuit disagreed with the district judge's finding that the Moore-King's practice was inherently deceptive and thus categorically excluded from First Amendment protection. In support, the panel interestingly replied upon United States v. Alvarez (the "Stolen Valor case). Yet the panel then struggled with the appropriate First Amendment doctrine that should be applied - - - a not unusual situation in First Amendment litigation - - - rejecting the commercial speech doctrine and time, place or manner analysis and settling upon what it named the "professional speech doctrine."
As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. [citation omitted] With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.
The panel then engaged in little analysis, except to say that this did not mean that the government had "carte blanche" but that it held that the government "regulation of Moore-King's activity falls squarely within the scope of that doctrine."
As to Free Exercise, the panel rejected Moore-King's qualifications to assert the claim:
Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude.
In addition to the First Amendment claims, Moore-King had also challenged the regulatory scheme on the basis of Equal Protection, although this argument was largely predicated upon her First Amendment interests as the fundamental rights that would trigger strict scrutiny. Again, the Fourth Circuit affirmed the district judge's grant of summary judgment in favor of the government.
This is a case ripe for critique and would make a terrific subject for student scholarship.
February 27, 2013 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 26, 2013
Eleventh Circuit Affirms Preliminary Injunction Against Florida's Mandatory Drug Testing of Welfare Recipients
In its unanimous panel opinion today in Lebron v. Sec't Florida Dep't of Children & Families, the Eleventh Circuit affirmed a district judge's grant of a preliminary injunction against Florida Statute §414.0652 requiring drug testing of all persons who receive public benefits.
Recall that 16 months ago, Federal District Judge Mary Scriven issued a preliminary injunction against the controversial law championed by equally controversial governor Rick Scott requiring drug testing for each individual who applies for benefits under the federally funded TANF (Temporary Assistance for Needy Families) program to take a drug test, which must occur at an "approved laboratory" and be paid for by the applicant. As the Eleventh Circuit panel made clear, it was not resolving "the merits of the constitutional claim" but only addressing "whether the district court abused its discretion in concluding that Lebron is substantially likely to succeed in establishing that Florida’s drug testing regime for TANF applicants violates his Fourth Amendment rights."
Nevertheless, the Eleventh Circuit's opinion, authored by Judge Rosemary Barkett, left little room to argue that the statute could survive a constitutional challenge. Barkett observed that in the "specific context of government-mandated drug testing programs, the Supreme Court has exempted such programs from the Fourth Amendment’s warrant and probable cause requirement only where such testing 'fit[s] within the closely guarded category of constitutionally permissible suspicionless searches,'" requiring that the "proffered special need for drug testing must be substantial,” citing Chandler v. Miller, 520 U.S. 305 (1997). These special needs include "the specific risk to public safety by employees engaged in inherently dangerous jobs and the protection of children entrusted to the public school system’s care and tutelag." The Eleventh Circuit easily found that welfare recipients did not fall into a special needs category:
The question is not whether drug use is detrimental to the goals of the TANF program, which it might be. Instead, the only pertinent inquiry is whether there is a substantial special need for mandatory, suspicionless drug testing of TANF recipients when there is no immediate or direct threat to public safety, when those being searched are not directly involved in the frontlines of drug interdiction, when there is no public school setting where the government has a responsibility for the care and tutelage of its young students, or when there are no dire consequences or grave risk of imminent physical harm as a result of waiting to obtain a warrant if a TANF recipient, or anyone else for that matter, is suspected of violating the law. We conclude that, on this record, the answer to that question of whether there is a substantial special need for mandatory suspicionless drug testing is “no.”
The Eleventh Circuit also rejected Florida's "consent" argument. Because under Florida’s program an applicant is required to sign an acknowledgment that he or she consents to drug testing, the State argued these consented-to searches are reasonable under the Fourth Amendment. The Eleventh Circuit deemed Florida's reliance on Wyman v. James, 400 U.S. 309 (1971) "misplaced," because there the home visit by the social worker as a condition of receiving welfare benefits was not considered a search, while drug testing does constitute a search.
The Eleventh Circuit briefly discussed "unconstitutional conditions," a theme that Judge Jordan, in a brief concurring opinion, echoed. But Jordan's discussion of unconstitutional conditions provided perhaps the only possibility that Florida might ever prevail, although interestingly relying largely upon First Amendment doctrine.
Judge Jordan's concurring opinion, however, questioned the outcome of any test requiring that the means chosen serve the government interest:
I am skeptical about the state’s insistence at oral argument that the Fourth Amendment permits the warrantless and suspicionless drug testing of all TANF applicants even if the evidence shows, conclusively and beyond any doubt, that there is 0% drug use in the TANF population. The state’s rationale—that such drug testing is permissible because the TANF program seeks to “move people from welfare to work”—proves too much. Every expenditure of state dollars, taxpayers hope, is for the purpose of achieving a desirable social goal. But that does not mean that a state is entitled to require warrantless and suspicionless drug testing of all recipients of state funds (e.g., college students receiving Bright Futures scholarships, see Fla. Stat. § 1009.53) to ensure that those funds are not being misused and that policy goals (e.g., the graduation of such students) are being achieved. Constitutionally speaking, the state’s position is simply a bridge too far.
The consensus of the federal judges who have considered the Florida statute's constitutionality does seem to be that the statute has definitely gone "too far."
Monday, February 25, 2013
The Fourth Circuit ruled last week in Clatterbuck v. City of Charlottesville that a lower court erred in dismissing a free speech challenge to Charlottesville's anti-solicitation ordinance. The court remanded the case for further proceedings.
The ruling means that the case will go back to the district court to determine whether the City had an intent to censor speech in adopting the ordinance. If so, the ordinance will be subject to strict scrutiny analysis (and almost certainly be struck); if not, it'll get the test for time-place-manner regulations in a public forum (and likely be upheld, at least by the district court, since it already upheld it under this test).
The case tests Charlottesville's ordinance that bans panhandling--solictation for immediate donation of anything of value--in a particular area on the Downtown Mall. The lower court granted the City's motion to dismiss the case, ruling that the ordinance was a content-neutral time-place-manner regulation on speech. The lower court came to this conclusion based in part on testimony at a city council meeting in favor of the ordinance, which it said showed that the City adopted the ordinance for content-neutral reasons (safety, and the like). The testimony was not part of the record on the City's motion to dismiss.
The Fourth Circuit reversed. It said that under its pragmatic approach to content neutrality, it looks both to the face of the ordinance and to the "censorial intent" behind it. A challenger must show both in order to trigger strict scrutiny analysis of the ordinance.
Here, the court ruled that the ordinance is content-based on its face, because it distinguishes between solicitation of immediate donations and solicitation of donations in the future. But it couldn't determine from the record on a motion to dismiss whether there was also "censorial intent." And it ruled that the district court's evidence of censorial intent--the testimony at the city council meeting--shouldn't have been considered on a motion to dismiss (which wasn't converted to a motion for summary judgment).
The court said that there wasn't enough evidence in the record at this early stage for it to determine censorial intent, and it remanded the case for further proceedings.
Wednesday, February 20, 2013
In its opinion in Hartmann v. California Department of Corrections and Rehabilitation (CDCR), a panel of the Ninth Circuit reversed in part a district judge's dismissal on a complaint by prisoners' regarding the availability of Wiccan paid-chaplain positions.
The operative policy maintained paid full-time and part-time chaplain positions only for adherents of five faiths: Catholic, Jewish, Muslim, Native American, and Protestant. At the heart of the plaintiffs' claims was the allegation that there are more Wiccan prisoners at the women's prison than prisoners of the other faiths.
Interestingly, the plaintiffs did not prevail on their Free Exercise claim under the First Amendment. Affirming the district judge, the Ninth Circuit panel wrote that even accepting the allegations as true,
while Plaintiffs may be better able to exercise their religious beliefs with the assistance of a paid full-time Wiccan chaplain, it is well-settled that the First Amendment does not require prison administration to provide inmates with the chaplain of their choice. . . . The Free Exercise Clause does not require prison administration to provide Plaintiffs with more than that which they are currently receiving—i.e., the services of staff chaplains and a volunteer Wiccan chaplain.
On the other hand, the CDRC's choice to provide paid chaplains for five more established religions risks an Establishment Clause violation. The panel, assuming again that the allegations were true, held that the prison administration created staff chaplain positions for five conventional faiths, "but fails to employ any neutral criteria in evaluating whether a growing membership in minority religions warrants a reallocation of resources used in accommodating inmates’ religious exercise needs." the panel provided some guidance to the lower court (and counsel): at a minimum, a court would have to ascertain whether paid staff chaplains work only at the women's prison or are required to travel to other prisons, jails, and correction facilities in the State and there could be a survey of inmate religious affiliation in the women's prison population and the broader CDCR prison population.
The panel also considered the California constitutional claims as well as the RLUIPA, equal protection, and the proper defendants. But the case is noteworthy for its illustration of the relationship between Free Exercise and Establishment Clause challenges.
[image: Wiccan symbol via]
Tuesday, February 19, 2013
The Supreme Court today said it would take up McCutcheon v. FEC, a case testing federal biennial limits on contributions to candidates, PACs, parties, and committees. (The jurisdictional statement is here.) While the case directly challenges biennial limits under the Buckley framework, the petitioner also preserved the issue whether Buckley's contribution-expenditure scrutiny distinction violates free speech.
It's not clear how much the case could matter to the sheer amount of money in politics. That's because contributors already have ample and growing opportunities to contribute to proliferating super-PACs and 501(c)(4) organizations. But if the Court takes on Buckley's contribution-expenditure distinction, the ruling could be quite significant both for First Amendment doctrine and money in politics. (That distinction means that the government can regulate contributions to prevent political corruption, but expenditures get full First Amendment protection.) It could be the next step after Citizens United in further opening the money spigot.
The case directly attacks federal biennial expenditure limits under the Bipartisan Campaign Reform Act. BCRA limits an individual's contribution to a candidate, a national party, a local party, and a PAC in each calendar year. These are called "base limits." But BCRA also limits an individual's total contributions to all federal candidates, party committees, and PACs every two years. These are the "biennial limits."
McCutcheon argues that the biennial limits restrict his ability to contribute to as many candidates and parties as he'd like, thus restricting his First Amendment rights. In particular, he says that the biennial limits under BCRA have no justification and therefore must be struck.
To see why, start with the old biennial limit upheld by the Court in Buckley. Back then, there were no base limits for contributions to PACs or national or local parties. (There was a base limit on contributions to candidates, though--$1,000 per.) McClutcheon argues that the Court in Buckley upheld the biennial limit because it was designed to prevent a contributor from circumventing the base limit on candidates. How? By contributing massive amounts through political committees that would simply funnel the money to the candidate.
McClutcheon says that BCRA--with its base limits and biennial limits on candidates, committees, PACs, and parties--can't be designed to prevent circumvention in the same way. This is because BCRA's base limits themselves restrict circumvention. (BCRA's base limit on a party, e.g., prevents a contributor from funneling massive amounts of money through the party to the candidate). McClutcheon says that the only effects of BCRA's biennial limits are to restrict the total amount of cash he can spend and, with the base limits, to restrict the number of candidates, committees, PACs, and parties that he can spend on--thus violating his First Amendment rights. (E.g.: He would've liked to give $25,000 each to the RNC, the National Republican Senatorial Committee, and the National Republican Congressional Committee before the 2012 election, but that would have exceeded the biennial limit.) McClutcheon says his case against the biennial limit on contributions to candidates is even stronger, because even Buckley didn't hold that there's an anti-circumvention interest in that limit. He claims that that limit serves only to prevent him from contributing to as many people as he'd like.
McClutcheon also argues that the biennial limits are too low.
The Court could rule on the narrow issue whether the biennial limits violate Buckley's anti-circumvention interest (which supported the old biennial limit). This kind of ruling (if, as expected, it overturns the biennial limits) could give contributors another way to spend more money in politics, but it would retain Buckley's contribution-expenditure scrutiny distinction. Alternatively, the Court could take on BCRA's biennial limits and Buckley's contribution-expenditure distinction. This could fundamentally change how we approach campaign finance restrictions under the First Amendment (even if it's not obvious that it would necessarily result in a ton more money in politics).
The First Amendment's relationship to what we call "academic freedom" can be fraught (here's one recent example), but in her compelling new book, Priests of Our Democracy Marjorie Heins provides doctrinal, historical, and political links between our understandings. Subtitled The Supreme Court, Academic Freedom, and the Anti-Communist Purges, the book takes as it centerpiece Keyishian v. Board of Regents (1967), a case that is oft-cited and just as often omitted from casebooks.
For ConLawProfs not teaching Keyishian - - - and this book will make you wonder why you are not - - - Heins' book illuminates important First Amendment doctrine and politics. Her history develops the parties, the lawyers, and the institutions involved in Keyishian with fascinating detail and readable prose. Her discussion of the larger anti-Communist "purges" is sharp and solid; it leads to considerations of the post 9/11 landscape.
And for ConLawProfs writing in the area, Heins' volume is an absolutely essential read.
Sunday, February 17, 2013
Judge James E. Boasberg (D.D.C.) in two separate cases in the last four weeks or so rebuffed an argument by the U.S. Attorney's Office for the District of Columbia that a plaintiff has no Bivens claim against federal officers for violation of First Amendment free speech rights. The holdings in these cases were unremarkable, given the state of circuit law and the approach in other circuits to the question--which recognize a plaintiff's cause of action to bring a First Amendment claim against federal officers. But the government's argument that the plaintiffs in these recent cases lacked this cause of action raises the specter that First Amendment Bivens claims could be on the chopping block.
(A Bivens claim is a suit against a federal officer for a violation of a constitutional right. There's no statutory authorization for this kind of suit (as there is against a state officer for violation of a constitutional right, under 42 U.S.C. Sec. 1983), and so the Supreme Court has implied a cause of action for cases against federal officers involving certain constitutional rights. "Bivens" refers to the pioneering case imlying such a cause of action, Bivens v. Six Unknown Named Agents.)
It's hardly surprising that the federal government would press the position that Bivens claims are limited and ought not to be extended beyond those discrete constituitonal claims where the Supreme Court has recognized them. And it's not news that this Supreme Court might not be particularly amenable to Bivens claims beyond those that it already recognized (and it hasn't recognized a Bivens claim under the First Amendment).
But the government's argument in the two recent D.C. District cases may suggest a new line of attack, based on language in a recent Supreme Court case, Ashcroft v. Iqbal.
Iqbal famously reaffirmed that there's no vicarious liability under Bivens. It also famously said that Bivens complaints need to meet a certain threshold of specificity--a new, higher threshold that made it more difficult to bring these kinds of claims. But it also said something else: It said that the Court is reluctant to extend Bivens to claims that it has not yet recognized, and it noted that it had not yet recognized a Bivens claim based on the First Amendment. The Court wrote:
Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability "to any new context or new category of defendants." [Citations omitted.] That reluctance might well have disposed of respondent's First Amendment claim of religious discrimination. For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, [citation omitted], we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment. Bush v. Lucas, 462 U.S. 367 (1983).
Iqbal at 11. (In Bush, the Court rejected the petitioner's Bivens-free speech claim because there was a comprehensive statutory scheme already available to him.)
The government seized on this language from Iqbal in the two recent cases in the D.C. District and argued that it raised the question whether long-standing circuit law recognizing a First Amendment claim under Bivens was still viable.
Judge Boasberg rejected the argument:
Even if Defendants are correct in predicting the Supreme Court's response to questions not yet before it, this Court cannot accept its invitation to depart from this Circuit's binding precedent.
That circuit precedent goes back to Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977). And as Judge Boasberg wrote, the Third and Ninth Circuits have also recognized First Amendment claims pursuant to Bivens.
This government line of attack, based on language in Iqbal, may not mean anything other than the government predictably arguing for a narrow Bivens doctrine. Or it may be the start of a new and revived effort to put Bivens-First Amendment claims that are recognized by the lower courts before the Supreme Court--and on the chopping block.
Judge Boasberg's ruling in Bloem v. Unknown Department of the Interior Employees allowed an Occupy-DC protester's claim to go forward against Interior employees for confiscating his property from the McPherson Square protest site. Judge Boasberg's ruling in Hartley v. Wilfert allowed a protester's claim to go forward against Secret Services officers who stopped her and asked for personal information as she tried to communicate a message about sex discrimination in law enforcement in front of the White House. In addition to ruling that Bivens extended to both First Amendment claims, Judge Boasberg also rejected the officers' qualified immunity claims.
February 17, 2013 in Cases and Case Materials, Courts and Judging, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)
Thursday, February 14, 2013
Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad." The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.
Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.
Dworkin's article is worth a (re)read.
For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?" Dworkin wrote:
We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.
Dworkin's voice will be missed.
February 14, 2013 in Affirmative Action, Campaign Finance, Cases and Case Materials, Current Affairs, First Amendment, Religion, Speech, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 13, 2013
Apparently upset by an image of a legislator's head being photo-shopped onto the image of a porn star's body, the Georgia legislature is entertaining a bill that would define such an act as defamation.
Georgia HB39 provides that a person commits defamation when he or she causes an unknowing person wrongfully to be identified as the person in an obscene depiction in such a manner that a reasonable person would conclude that the image depicted was that of the person so wrongfully identified.
The reasonable person standard here would probably exclude application to the upsetting image - - - which is clearly and inartfully photoshopped - - - and thus not satisfy the elements of the statute.
As for the First Amendment considerations, the reasonable person standard might serve to distinguish the statute from the Campari advertisement parody at issue in Hustler Magazine v. Falwell. But as a defamation statute, the Georgia bill fails to incorporate the public figure malice standard firmly established since 1964's NYT v. Sullivan and surely a legislator is a quintessential public figure.
The bill's combination of the defamation tort with "obscenity" is not likely to solve any First Amendment issues, especially since the bill's definition of obscene depiction is "a visual depiction of an individual displaying nudity or sexual conduct." Simple nudity as coextensive with obscenity has been constitutionally suspect since 1973's Miller v. California.
The bill is merely a bill, but it needs some serious revision for it to become a constitutional statute.
Monday, February 11, 2013
The leak of the DOJ white paper on drone attacks and its publication raise yet again the First Amendment issues surrounding prosecutions for leaks and possibily for publication.
Less than two weeks ago, the Congressional Research Service released its 33 page report, authored by legislative attorney Jennifer Elsea, entitled "Criminal Prohibitions on the Publication of Classified Defense Information."
The report centers wikileaks and Bradley Manning, but also discusses five other pending prosecutions that have received less publicity, including the Administration's attempt to compel New York Times reporter James Risen to testify
at the trial of former CIA officer Jeffrey Sterling, who is accused of providing classified
information to Mr. Risen that formed the basis of part of Risen's book, State of War: The Secret History of the CIA and the Bush Administration.
The report considers the statutory frameworks, problems such as jurisdiction and extradition, other legislative proposals, and - - - in six pages - - - the constitutional issues. While brief, the First Amendment discussion is nevertheless a good review and a good reminder that the law is deeply unsettled even with respect to classified information.
Wednesday, February 6, 2013
ConLawProfs often appear on controversial panels and law schools often present controversial programming. Are there limits?
Policitical Science Professor (and Chair of the Department) Paisley Currah (pictured) of Brooklyn College has been embroiled in a "firestorm" of late. As Professor Currah writes in The Chronicle of Higher Education:
Last month the political-science department at Brooklyn College, which I chair, was asked to either cosponsor or endorse a panel discussion on the boycott, divestment, and sanctions (BDS) movement organized by a student group, Students for Justice in Palestine. We decided to cosponsor the event, which is to take place on Thursday and to feature the philosopher Judith Butler and the Palestinian-rights activist Omar Barghouti. The BDS movement advocates using nonviolent means to pressure Israel to withdraw from Palestinian territories. Our decision landed us in a firestorm.
The flames of the firestorm have been fanned by controversial LawProf Alan Dershowitz as well as a letter signed NYC officials with (somewhat) veiled threats of reducing government funding. The NYT weighed in on the matter, comparing it to Chuck Hagel's nomination for secretary of defense, and the Center for Constitutional Rights has also highlighted the controversy. As Professor Currah concludes:
The damage wrought by this controversy, however, could be long-lasting, and the lesson for other colleges is, I think, instructive. Many people have written letters and signed petitions in support of the principle of academic freedom, and my colleagues and I appreciate those efforts. But what we have learned at Brooklyn College is that supporting the principle of academic freedom is one thing; exercising that freedom by organizing or cosponsoring an event on a highly charged subject, like BDS, is another.
For ConLawProfs teaching First Amendment this semester, the underlying facts could be the basis for an excellent class discussion or exercise. For everyone involved in the academic enterprise, Currah's piece is an important read.
Thursday, January 31, 2013
No sooner had we posted on constitutionalizing right-to-work laws--and Michigan Governor Rick Snyder's certification to the state supreme court certain questions regarding his state's new right-to-work laws--than the Michigan ACLU filed suit in state court arguing that Michigan's laws are unconstitutional.
The ACLU complaint argues that the process of passing the laws violated the state's Open Meetings Act, the state constitutional right to assemble, and the First Amendment. In particular, the ACLU argues that the legislature closed and locked the Capitol to keep out additional protestors as the lame-duck legislature debated and voted on the bills on a super fast track.
The ACLU's legal arguments are different than the questions that Governor Snyder certified to the state supreme court. Governor Snyder's certification appeared to be designed to short-circuit promised litigation against the laws--on the merits. But the ACLU is now challenging the laws on the process. This suit, if not similarly short-circuited and if successful, could hold up implementation of the law, notwithstanding Governor Snyder's certified questions yesterday.
Monday, January 28, 2013
Judge Amy Berman Jackson (D.D.C.) on Friday dismissed the Roman Catholic Archbishop of Washington's challenge to the HHS regs pursuant to the Affordable Care Act that required insurers to provide coverage for preventive care, including contraception, for women. The ruling comes on the heels of the D.C. Circuit's ruling just last month that a similar challenge was not ripe.
Judge Jackson cited the D.C. Circuit ruling, Wheaton College v. Sebelius, and ruled that the Archbishop's challenge was similarly not ripe. (Recall that the D.C. Circuit reasoned that HHS committed to changing its regs, so that the contraception requirement wouldn't cover the religious employer in that case.) The D.C. Circuit wrote, "We take the government at its word and will hold it to it." So too Judge Jackson.
Unlike the D.C. Circuit, however, Judge Jackson did not hold the case in abeyance. Instead, she outright dismissed it, writing that the Archbishop could bring a new case if and when the government enforced a contraception mandate against it.
Last month's long-awaited decision in R. v. N.S. by the Canada Supreme Court considered whether or not a witness in a criminal trial had a religious right to wear a niqab during testimony.
The Court's fractured and ultimately unsatisfying decision has prompted some excellent commentary. A quick round-up from Sonia Lawrence at the Institute for Feminist Studies at Osgoode Hall on the day of the decision has been followed by more discussion.
Canadian ConLawProf Beverley Baines has an excellent commentary over at Jurist. Professor Baines provides an excellent synopsis of the case and situates it within Canadian constitutional jurisprudence. She focuses on the Court's analogy between wearing the niqab and publication ban precedent. Importantly, she also raises a central question raised by the particular facts in N.S.:
Identity is a complex matter in R. v. N.S.. Given that the accused assailants were her uncle and cousin, they knew the identity of the testifying victim. From N.S.'s perspective, her identity as a Muslim woman was threatened by the niqab ban. Her faith requires her to cover her face in the presence of men who are not members of her immediate family. Removing her niqab would rob her of her religious identity just as would depriving a Jewish man of his kippah, a Sikh of his turban or an Amish of his hair. Nor is the link between the niqab and the presumption of innocence transparent, despite the chief justice's repeated reference to the niqab portending a wrongful conviction. If the niqab is such a serious impediment, might wearing it not result in a wrongful acquittal?
Professor Natasha Bakht of the University of Ottawa Faculty of Law made a similar argument over at Blogging for Equality earlier this month, stressing the relationship between religious freedom and gender equality in Canadian constitutionalism:
The majority’s decision in NS while keeping the door open for Muslim women to wear the niqab while testifying in certain situations, did not adequately consider NS’s equality or section 7 rights. Indeed the word equality never appears in the decision! To frame NS’s claim as only rooted in religious freedom is to fundamentally misconstrue the intersectional nature of the issue at stake. NS is a sexual assault complainant. Asking a niqab-wearing woman to remove her veil is like asking her to remove her skirt or blouse in court. It is, literally, to strip her publicly and in front of her alleged perpetrators. We know that sexual assault is one of the most underreported crimes in Canada. Prohibitions on wearing the niqab while giving testimony will only discourage Muslim women from participating in the justice system.
Finally, Stephanie Voudouris at The Court attempts to "peel back" the layers of the case, again focusing on sexual assault and religious freedom, but also considering demeanor evidence. Voudouris' discussion is lengthy and provides a solid and objective overview of the case. But in the end, Voudouris offers a conclusion similar to Baines and Bakht, criticizing the
skewed scale on which the Court balances the harms to trial fairness against the harms to freedom of religion; a scale that may lead lower courts to ban the veil more often than not. Aside from the difficulties with the Court’s attempts to understand freedom of religion generally, this case provokes controversy because, in the words of Justice Abella, the Court is deciding these issues against the backdrop of questions about “whether the niqab is mandatory for Muslim women or whether it marginalizes the women who wear it; whether it enhances multiculturalism or whether it demeans it”, and of whether these global questions matter when a single woman comes before the court to testify against those who have assaulted her, and asks to do so in accordance with her religious beliefs.The majority opinion seemingly leaves wide discretion to the trial judge. It will be illuminating to learn what the judge in N.S. - - - and in other cases - - - ultimately decides.