Wednesday, May 15, 2013
What if the reporters' confidential sources were unknown even to the reporter? Might this solve the problems that the Court struggled with more than 40 years ago in Branzburg v. Hayes?
The New Yorker has introduced a technological attempt to insulate the source and the reporter. As The New Yorker explains its new concept, called "Strongbox" :
as it’s set up, even we won’t be able to figure out where files sent to us come from. If anyone asks us, we won’t be able to tell them.
A fuller explanation in the article by Kevin Poulson begins: "Aaron Swartz was not yet a legend when, almost two years ago, I asked him to build an open-source, anonymous in-box.
Of course, the government's technological abilities have also progressed since the grand jury inquiry of Branzburg.
The ACLU and 19 other organizations sent a letter this week to Secretary of Defense Chuck Hagel opposing the military's force-feeding hunger-striking detainees at Guantanamo Bay. According to the ACLU, 29 detainees are currently being force-fed. We previously posted on a ruling by New York's high court upholding the practice of force-feeing in New York prisons.
The military's standard operating procedures (SOP) on fasting and force-feeding changed just recently (published on Al Jazeera), loosening protections against force-feeding. (The earlier SOP is here.) Most notably, the recent changes to the SOP charge the military commander of the base, not a medical doctor, with determining who is a hunger striker.
Here's the ACLU's legal case against force-feeding, from this week's coalition letter to Secretary Hagel:
Force-feeding as used in Guantanamo violates Common Article 3 of the four Geneva Conventions of 1949, which bar cruel, humiliating and degrading treatment. It also could violate the Detainee Treatment Act of 2005, which prohibits the "cruel, inhuman, or degrading treatment" of prisoners "regardless of nationality or physical location." Indeed, a 2006 joint report submitted by five independent human rights experts of the United Nations Human Rights Council (formerly the U.N. Commission on Human Rights) found that the method of force-feeding then used in Guantanamo, and which appears to remain in effect today, amounted to torture as defined in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994. The report asserted that doctors and other health professionals authorizing and participating in force-feeding prisoners were violating the right to health and other human rights, including those guaranteed by the International Covenant on Civil and Political Rights, which the United States ratified in 1992. Those concerns were reiterated this month by the Office of the UN High Commissioner for Human Rights, the Inter-American Commission on Human Rights, the United Nations Working Group on Arbitrary Detention, and three UN Special Rapporteurs.
While the letter focuses on cruel, inhuman, or degrading treatment, there may be other problems with force-feeding, too. For example, force-feeding may infringe on hunger-striking detainees' free speech. But First Amendment claims by hunger-strikers in regular detention in the U.S. have not been successful; Guantanamo Bay detainees would almost certainly face even steeper First Amendment challenges in the courts. There's also the right to refuse medical treatment. As Michael Dorf (DorfonLaw.org) argues at jurist.org, "five Justices in [Cruzan v. Dir. Missouri Dep''t of Health] did say that they thought that competent adults have the right to refuse forced feeding, even if death will result." But that runs up against Washington v. Harper, holding that prison officials could override a prisoner's objection to forcibly being administered medication, assuming it's in the prisoner's medical interest.
Anyway, as Dorf points out, some Guantanamo detainees might have a hard time even bringing a case. Judge Kessler (D.D.C) dismissed a detainee force-feeding case in 2009, based on the jurisdiction-stripping provision in the Military Commissions Act of 2006. That provision says,
Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The difference here is that some of the hunger-strikers now have been cleared for release--the U.S. just can't find a place to send them. Those detainees are not "determined by the United States to have been properly detained as an enemy combatant or [are] awaiting such determination," and are not barred by 2241(e)(2) from bringing suit.
May 15, 2013 in Courts and Judging, Current Affairs, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Medical Decisions, News, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)
Most ConLawProfs would agree that First Amendment doctrine suffers from incoherence, but fewer may agree that institutionalism is the solution, and even those who do favor institutionalism may differ on their selection of the institutions deserving deference.
But for anyone teaching or writing in the First Amendment, Horwitz's book deserves a place on a serious summer reading list. My longer review appears in Law and Politics Book Review.
Thursday, May 9, 2013
Divided Sixth Circuit Panel Upholds Michigan's Public Act 53 Regulating Public School Union Dues Collection
A Sixth Circuit panel today upheld the constitutionality of Michigan's Public Act 53 in its opinion in Bailey v. Callaghan.
Michigan’s Public Act 53, enacted in 2012, governs public school employee union dues. It provides:
A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.
As the panel explained, "Thus, under the Act, unions must collect their own membership dues from public-school employees, rather than have the schools collect those dues for them via payroll deductions."
The panel reversed the district court's grant of a preliminary injunction, holding that the challengers' First Amendment and Equal Protection claims were "without merit."
On the First Amendment claim, the panel held that the case was squarely controlled by the Supreme Court's 2009 decision in Ysursa v. Pocatello Educational Ass'n, and the distinctions urged by the challengers were inapposite. Its summary exiled the dispute from First Amendment terrain:
So Public Act 53 does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind. Instead, the Act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern.
The Equal Protection argument was dispatched with even less fanfare:
The question here is whether there is any conceivable legitimate interest in support of this classification. We hold that there is: the Legislature could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers. The plaintiffs’ equal-protection claim therefore fails.
Dissenting, Judge Jane Branstetter Stranch begins by noting that the "majority spills little ink" - - - the opinion is 5 pages - - - and then proceeds with a more robust analysis of the First Amendment challenge. She takes seriously the viewpoint discrimination argument given the Michigan legislature's specific statement that the purpose of Act 53 was to put a "check on union power." This type of viewpoint discrimination means that Ysursa does not control, and in fact "Ysursa expressly acknowledges the long-standing prohibition on viewpoint discrimination in the provision of government subsidies," although the Court held that because that law applied to all employers, there was no viewpoint discrimination. Instead, she relies on Citizens United to contend:
To the extent Act 53’s purpose is to cripple the school unions’ ability to raise funds for political speech because Michigan’s legislature finds that speech undesirable, it is plainly impermissible. Political speech, of course, is a core First Amendment activity that “must prevail against laws that would suppress it, whether by design or inadvertence.” Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010). And “restrictions distinguishing among different speakers, allowing speech by some but not others,” run afoul of the First Amendment precisely because they are “all too often simply a means to control content.” Id. at 898–99.
This doctrinal prohibition applies not only to laws that directly burden speech, but also to those that diminish the amount of speech by making it more difficult or expensive to speak. See, e.g., Citizens United, 130 S. Ct. at 897.
It does seem that Judge Stranch's dissent has the better argument, and definitely the more developed one.
[image: Central School Iron River Michigan, circa 1909, via]
Wednesday, May 8, 2013
A three-judge panel of the D.C. Circuit struck the enforcement mechanisms for the NLRB rule requiring employers to post a notice of employee rights. The ruling yesterday in National Association of Manufacturers v. NLRB means that the NLRB rule is invalid.
The case strikes a blow at the NLRB effort to educate employees on their workplace rights, in an era where union membership is way down (7.3% of the private workforce) and where more and more workers enter the workplace without knowledge of their rights.
The case arose after the NLRB promulgated a rule that required employers to post a notice of employee rights in the workplace. Violation of the rule came with an unfair labor practice under Section 8(a)(1) of the NLRA. (It also came with a suspension of the running of the six-month period for filing any unfair labor practice charge, and it constituted evidence of unlawful motive in a case in which motive is an issue.)
The rule says,
[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures . . . .
29 C.F.R. Sec. 104.202(a). (Here's the single-page version of the notice poster.) But the plaintiffs argued that this violated the NLRA and free speech. The court agreed, concluding that the rule violated Section 8(a), which says:
The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.
The court said that "[a]lthough Section 8(a) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board's rule does both."
The court rejected the NLRB's argument that the required post is the Board's speech, not the employer's speech. Comparing Section 8(a) to First Amendment law, the court said that it didn't matter: dissemination of messages gets the same free speech treatment as creation of messages.
The court also rejected the NLRB's argument based on UAW-Labor Employment & Training Corp. v. Chao, (D.C. Cir. 2003), which upheld President Bush's executive order requiring government contractors to post notice at their workplaces informing employees of their rights not to be forced to join a union or to pay union dues for nonrepresentational activities. (The plaintiffs in that case argued only that President Bush's EO was preempted by the NLRA; they lodged no First Amendment claim.) The difference, according to the court: there was no prospect in UAW of a contractor's being charged with an unfair labor practice for failing to post the required notice.
(Two members of the panel, Judges Henderson and Brown, would have gone farther and ruled that the NLRB lacked authority to pomulgate the posting rule.)
The court addressed the preliminary issue whether the NLRB had a quorum when it promulgated the rule, in light of its recent ruling in Noel Canning v. NLRB that President Obama's recess appointments were invalid. But the court held that the NLRB had a quorum when the rule was filed with the Office of the Federal Register (the relevant time), even if it didn't have a quorum when the rule was published.
Friday, May 3, 2013
The hunger strike amongst prisoners at Guantanamo Bay has led to force-feeding, a situation prompting the Office of the High Commissioner for Human Rights at the UN to issue a statement reiterating the disapproval of Guantanamo and remind the United States that:
in cases involving people on hunger strikes, the duty of medical personnel to act ethically and the principle of respect for individuals’ autonomy, among other principles, must be respected. Under these principles, it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.
New York's highest court, in its opinion in Bezio v. Dorsey regarding a state prisoner on a hunger strike reached an opposite conclusion. The court's majority stated:
The issue before us is whether Dorsey's rights were violated by a judicial order permitting the State to feed him by nasogastric tube after his health devolved to the point that his condition became life-threatening. We answer that question in the negative.
Yet the question of Dorsey's "rights" that were properly before the court occupied the bulk of the majority and dissenting opinions. The state Department of Corrections and Correctional Services (DOCCS) had originally sought the judicial order relating to Dorsey, a "serial hunger striker," which Dorsey resisted with pragmatic rather than constitutional arguments. But the state relied heavily on previous New York law - - - including a case involving Mark Chapman, the man convicted of murdering John Lennon - - - to support the constitutionality of forced-feeding.
Chief Judge Lippman, dissenting (and joined by Judge Rivera) argued that there were too many factual distinctions, including any finding that the prisoner or the institution was actually in danger.
As noted, DOCCS's own consulting psychiatrist stated flatly in his assessment that Mr. Dorsey was not suicidal. He was undoubtedly manipulative [as the doctor had stated], but all civil disobedience is manipulative. Manipulativeness, obviously, is not a sufficient predicate for forced feeding by the State.
While concluding that the issues are not properly before the court, and that the case is moot under state constitutional doctrine, the dissenting judges nevertheless concluded
The right to refuse treatment, we have held, is a kind of liberty interest within the protective ambit of the Due Process Clause of the State Constitution. While the right may be overcome in compelling circumstances justifying the state's resort to its police power and the state may thus intervene to prevent suicide, the individual's basic prerogative to make decisions affecting his or her own personal health and right to be left alone, i.e. to personal privacy, ordinarily will trump even the best intended state intervention.
For the majority of the court, however, the balance articulated in Turner v. Safley (1987) was easily resolved in favor of the legitimate penological interests of the prison, including the risk of a "significant destabilizing impact on the institution" by an inmate hunger strike, to allow force feeding an inmate.
May 3, 2013 in Due Process (Substantive), First Amendment, Fourteenth Amendment, International, Medical Decisions, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Saturday, April 27, 2013
While the facts may not be as originally reported, the NRA t-shirt of West Virginia High School Student has been causing consternation. Was he really suspended - - - and arrested - - - for wearing a t-shirt?
Such a result is most likely inconsistent with Tinker v. Des Moines Independent Community School District. But that's not the full constitutional or perhaps factual story.
Friday, April 26, 2013
In an interesting advisory opinion from the Federal Election Commission (FEC), the ability of same-sex couples married under state law to make political contributions similar to opposite-sex married couples is thwarted by the Defense of Marriage Act (DOMA). Recall that the United States Supreme Court is currently considering the constitutionality of DOMA in United States v. Windsor, argued last month.
The advisory opinion explained the underlying regulatory scheme:
Notwithstanding the prohibition on contributions in the name of another, a Commission regulation governing “[c]ontributions by spouses” provides that “limitations on contributions . . . shall apply separately to contributions made by each spouse even if only one spouse has income.” 11 C.F.R. 110.1(i). Thus, under Section 110.1(i), a spouse with no separate income may make a contribution in his or her own name “through the checking account of the other spouse.”
It concluded that "so long as the relevant provisions of DOMA remain in effect, the Committee may not apply 11 C.F.R. 110.1(i) to contributions from same-sex couples married under state law," although the Commission recognized that DOMA was currently under review.
In a separately issued concurring statement, FEC Chair Ellen Weintraub (pictured) emphasized that her "vote today was in no way intended to endorse the discriminatory, irrational burden that DOMA places on political participation by individuals in same sex."
If DOMA is not declared unconstitutional by the United States Supreme Court on the basis of equal protection, the FEC's opinion might be fertile ground on which to grow a First Amendment challenge.
[image of Ellen Weintraub via]
Wednesday, April 24, 2013
Over at the Best Practices Policy Project, "dedicated to supporting organizations and advocates working with sex workers, people in the sex trade," two City University of New York (CUNY) School of Law students, Kat Thomas and Lauren Parnes, provide their perspectives on Monday's Supreme Court oral argument United States Agency for International Development v. Alliance for Open Society International, Inc. which we discussed here.
Because they were in the courtroom, they were able to add the fact that several of the Justices - - - including Chief Justice Roberts - - - nodded in agreement with this point made by David Bowker, Counsel for Alliance for Open Society:
on the government’s theory, the government can give you — can give anyone in the country a dollar in Medicare funds and say, okay, now that you’ve taken a dollar of our money, we want you to profess your agreement with the Affordable Care Act, and we want you to never say anything inconsistent with that in your private speech. That is — that is wildly inconsistent with the First Amendment. That’s exactly what’s happening here. The only difference is the subject of prostitution. That’s what makes it less palatable.
The palatableness of the subject matter for the Justices and counsel alike is further explored by Thomas and Parnes. Worth a read.
Monday, April 22, 2013
The Court heard oral arguments today, sans Justice Kagan, in United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work.
In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs. The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan. The Second Circuit had held the provision unconstitutional.
Arguing as Deputy Solicitor General in support of the provision's constitutionality, Sri Srinivasan stressed that the Congressional requirement was "germane" to the government's goal in "partnering" with private organizations. Justice Scalia, in addition to finding the term "partnering" a "terrible verb," seemed to voice sentiments consistent with his previous conclusions in funding cases that the government can choose to spend its money as it wished. Interestingly, Justice Alito was more troubled, as he expressed in his first comment and question to the Deputy Solicitor General:
JUSTICE ALITO: I'm not aware of any case in which this Court has held that it is permissible for Congress to condition Federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees. I'm not aware of any case in which that kind of compelled speech has been permitted. And I would be interested in -- and it seems to me like quite a -- a dangerous proposition. I would be interested in whatever limitations you think there might be on that rule, which seems to be the general rule that you're advocating. Other than the requirement of germaneness, is there anything else.
Alito soon thereafter posed an example mentioned in an amicus brief about the ability of government funding schools, and again, Srinivasan repeated the requirement of "germaneness." Later, Alito mentioned another example, mixing advocacy of guns and receiving health care, and Srinivasan again answered similarly.
Justice Ginsburg's concerns were similar, with an addition of the question of the recipients as foreign NGOs as a distinguishing feature from precedent as well as a practical issue.
David Bowker, arguing for Alliance for Open Society and other organizations, attempted to distinguish a funding criteria from mandated speech once the fnding decision had been made, although this led into a discussion of viewpoint discrimination rather than compelled speech. Later, Bowker brought it back to the distinction based upon Rust v. Sullivan, in a colloquy with Justice Sotomayor:
MR. BOWKER: And what Rust says, and I – I think we fall back on Rust, which we think is just on all fours with where we are here, and that is what the government cannot do -- and I think this answers your question -- is outside the government program the government cannot control private speech. And it was critical in that case -- Justice Rehnquist, at pages 196 and 197, said, "The doctors there and the public health organizations there are free to engage in their own private speech and their own activities, and they are not required to endorse any viewpoint they don't, in fact, hold." And here -
It was not until the Government's rebutal that one of the oddest features of the statute was raised, when Sotomayor stated,
JUSTICE SOTOMAYOR: I would have less problem accepting your message if there weren't four major organizations who were exempted from the policy requirement . . .
There seems to be a bit of selection on the government in terms of who it wants to work with. It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.
In his last moments of argument, Srinivasan, responding to Justice Ginsburg, argued that the exemptions made "good sense" given that three of the four have members that are sovereign entities. Unfortunately, the rationale supporting that fourth entity was not explored.
The hypotheticals and examples raised by the Justices in oral argument showed some concern about just how far Congress could extend a provision similar to the one about prostitution in the Leadership Act. The distinction between funding and compelled speech doctrines was often obscured, making the outcome uncertain. More certain is that Justice Kagan's perspective will be sorely missed.
Thursday, April 18, 2013
In its sharply divided opinion in Center for Constitutional Rights v. United States, the United States Court of Appeals for the Armed Forces rejected a claim that of public access to the trial and documents regarding the Bradley Manning court martial.
In this case, the appellants - - Center for Constitutional Rights, Glenn Greenwald, “Salon.com,” Jeremy Scahill, “The Nation,” Amy Goodman, “Democracy Now!,” Chase Madar, Kevin Gosztola, Julian Assange, and Wikileaks - - - sought press access. The three-judge majority noted that the court "invited counsel for the accused to file a brief on the issues but they declined to do so." It concluded that the court did not have the "jurisdiction" to grant the relief requested.
The two dissenting opinions - - - each judge authoring an opinion that the other joined - - - reject the majority's disinclination to assert its own power.
A dissenting opinion, by Chief Judge Baker joined by Senior Judge Cox, begins by centering the First Amendment concerns:
The general public has a qualified constitutional right of access to criminal trials. Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555 (1980) (plurality opinion). Public access to a criminal trial includes appropriate access to filings. Nixon v. Warner Commc’ns , Inc. , 435 U.S. 589 , 597 (1978) . “Congress intended that, to the extent ‘practicable,’ trial by court - martial should resemble a criminal trial in a federal district court.” United States v. Valigura , 54 M.J. 187, 191 (C.A.A.F . 2000). The right to a public trial is embedded in Rule for Court’s - Martial (R.C.M.) 806, which provides that “ [e]xcept as otherwise provided in this rule, courts - martial shall be open to the public.”
Judge Baker's opinion stops short of concluding that there should be press access to the proceedings and documents, but does conclude that the court should determine the specific contours of the First Amendment right.
Judge Cox's dissenting opinion, joined by Baker, emphasized the court's role to assist the military trial judge, noting that the military judges " are in a better position to do that than is a federal district judge to solve the issues presented."
Thus, it seems as if it will continue to be difficult to determine what is happening in the court martial of Bradley Manning.
Tuesday, April 16, 2013
Now in print is the Fall 2012 Albany Law Review Symposium “What Are We Saying? Violence, Vulgarity, Lies . . . And The Importance Of 21st Century Free Speech."
-- Ronald K.L. Collins......Foreword: Exceptional Freedom—The Roberts Court, the First Amendment, and the New Absolutism
-- Robert M. O'Neil........Hate Speech, Fighting Words, and Beyond--Why American Law is Unique
-- Rodney A. Smolla........Categories, Tiers of Review, and the Roiling Sea of Free Speech Doctrine and Principle: A Methodological Critique of United States v. Alvarez
-- Jeffery C. Barnum.........Encouraging Congress to Encourage Speech: Reflections on United States v. Alvarez
-- Marjorie Heins..........The Supreme Court and Political Speech in the 21st Century: The Implications of Holder v. Humanitarian Law Project
-- R. George Wright.........Are There First Amendment “Vacuums?”: The Case of the Free Speech Challenge to Tobacco Package Labeling Requirement
-- Robert D. Richards & David J. Weinert.........Punting in the First Amendment’s Red Zone: The Supreme Court’s “Indecision” on the FCC’s Indecency Regulations Leaves Broadcasters Still Searching For Answers
-- Marvin Ammori & Luke Pelican.........Media Diversity and Online Advertising
-- Martin H. Redish & Michael J.T. Downey.........Criminal Conspiracy as Free Expression
-- Owen Fiss........The Democratic Mission of the University
-- Welcome & Opening Remarks.......Benjamin P. Pomerance
-- Debate on Citizens United v. Federal Election Commission.......Floyd Abrams and Alan B. Morrison, moderated by Ronald K.L. Collins
-- Panel Discussion on Recent U.S. Supreme Court Free Speech Cases and Their Implications......Adam Liptak (moderator), Ronald K.L. Collins, Susan N. Herman, Alan B. Morrison, Robert M. O'Neil, Robert D. Richards
Thursday, April 11, 2013
The Supreme Court in recent years has issued a series of opinions striking restrictions on some of the most offensive kinds of speech. From restrictions on violent video games, to funeral protests, to crush videos, and even to lies about receiving the Medal of Honor, the Court has put free speech ahead of offense. The Court privileged free speech over countveiling factors in other areas, too, perhaps most notably in Citizens United.
But in Holder v. Humanitarian Law Project, the Court went the other way. In HLP, the Court upheld the "material support" provision of the PATRIOT Act, which outlawed speech that provided material support to terrorists. The ruling didn't obviously square with the Court's clear trend to privilege speech over offense or other consderations, and it came under sharp fire in the media and the academic world. In particular, nobody seemed to defend HLP in relation to some of the Court's canonical cases and doctrine on categories of unprotected speech. (And that's becuase some the most relevant categories--in particular, group defamation and hate speech--have themselves been targets for some academics.)
Alexander Tsesis (Loyola Chicago) is out to change that in his most recent contribution to free speech scholarship, Infammatory Speech: Offense Versus Incitement, recently posted on SSRN and to appear in the University of Minnesota Law Review.
Tsesis distinguishes between the Cour's treatment of offensive speech (in the string of cases mentioned above) and its treatment of threatening speech--overturning restrictions on the former, and upholding restrictions on the latter. He defends HLP as a case involving threatening speech, or as protecting public safety. In particular, he puts HLP right at the intersection of Virginia v. Black (holding that a state may ban cross burning with the intent to intimidate, as a type of true threat) and Beauharnais v. Illinois (upholding a state statute penalizing group defamation), even if HLP applied a heightened form of scrutiny:
Viewed in concert, the holdings in Black, Beauharnais, and HLP indicate that the Court is deferential to the regulation of speech for a limited number of public safety purposes. The public safety policies involved in these three cases were inapplicable to the offensive speech cases . . . . HLP did differ from the other two incitement cases in its reference to a "more rigorous scrutiny" while never adopting any comparable standard for proving up group defamations or true threats. This distinction is logical because material support might involve discourse that is not harmful on its face, albeit increasing organizations' standing and credibility, while true threats and group defamations are by definition menacing to the public at large or some targeted segment thereof. Thus, the greater potential for error and abuse in the enforcement of material support statutes required a heightened level of scrutiny that would be unfitting for the other two categories.
Along the way, Tsesis explores some of the problems applying a category like incitement to digital communications and the internet, where there's not always imminence but there still may be a threat to public safety. Group defamation and true threats are better fits for this kind of communication, he says. And thus they're better fits for understanding and justifying HLP, too. He also convincingly takes on those who criticize HLP, Black, and Beauharnais.
Tsesis's upshot: "When statements, emblems, badges, symbols, or other forms of expression that are historically tied to persecution and harmful stereotypes are intentionally used to put others in fear of violence, they are unprotected by the First Amendment."
This is a terrific piece, well argued, thoughtful and provocative. It also fills a hole in the literature. Highly recommended; read it.
Tuesday, April 9, 2013
A three-judge panel of the Tenth Circuit ruled yesterday in Taylor v. Roswell Independent School District that a school can ban students' distribution of rubber fetus dolls without violating free speech, free exercise, or equal protection.
The case arose when members of a student group, Relentless, distributed rubber fetus dolls to fellow students at two schools, without required administration permission. The dolls were said to have the weight and size of a 12-week-old fetus. Relentless members apparently distributed them to educate fellow students and to protest abortion. But that message only backfired:
Both schools experienced doll-related disruptions that day. Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the "popcorn" ceilings so they became stuck. Dolls were used to plug toilets.
Op. at 7-8. And on and on.
The administration stepped in and stopped the distribution, even though it allowed students to distribute other non-school-related items (like Valentine's Day items), and even though it previously permitted Relentless to distribute other things like McDonald's sandwiches to teachers. (Maybe not surprisingly, those things didn't cause the same kinds of disruptions.)
So Relentless members sued, arguing that the administration violated free speech, the Free Exercise Clause, and equal protection.
The Tenth Circuit rejected each of these claims. As to free speech, it said that the case did not involve content-based discrimination, and that nobody contested the administration's ability to confiscate dolls that were used to harm school property or for lewd or obscene expressions of their own. Instead, the case involved private, non-school-related speech, and "[a]pplying Tinker, we hold that the District did not violate Plaintiffs' free speech rights because it reasonably forecasted that distribution of the rubber dolls would lead to a substantial disruption." Op. at 16. The court also held that the pre-approval policy looked like a licensing scheme, but with plenty of procedural safeguards (inluding two appeals) and substantive constraints on official discretion--and in the special environment of a school, where the First Amendment doesn't give students the same free speech rights that they may have, say, in the public square. Finally, the court held that the pre-approval policy wasn't unconstitutionally vague, because a student of ordinary intelligence would know when he or she needs to get a license, and how. The court said that the plaintiffs failed to show any arbitrary enforcement.
As to the Free Exercise Clause, the court held that there was no evidence of discriminatory purpose on the part of the administrators--that the ban on fetal doll distribution was neutral--that therefore rational basis review applied, and that the administrators had a rational reason for banning the doll distribution--that is, stopping the "doll-related disruptions." As to equal protection, the court said that the plaintiffs couldn't show that they were treated differently than anyone else seeking to distribute items at school and so couldn't show a violation of equal protection.
Monday, April 1, 2013
Can a judge - - - a Supreme Court Justice - - - be a practitioner of "popular constitutionalism"? Was Justice Felix Frankfurter such a judge?
Snyder's view of popular constitutionalism may be a broader than some, but his linking of judicial restraint with popular constitutionalism, especially when situated in the New Deal era, is sound. Snyder concentrates on three of the most important and oft-criticized constitutional moments of Frankfurter's judicial career – the flag salute cases of Minersville School Dist. v. Gobitis (1940), reversed a mere three years later in West Virginia Bd. of Educ. v. Barnette (1943); Brown v. Board of Education and its progeny; and Baker v. Carr (1962).
Snyder concludes: "Frankfurter’s judicial reputation suffered at the hands of scholars intent on preserving the Warren Court’s legacy of protecting civil rights and civil liberties. Frankfurter’s Baker [v. Carr] dissent, however, has proven to be just as prophetic as some of Holmes’s and Brandeis’s dissents because it revealed the ugly underside of the Warren Court’s legacy – judicial supremacy."
While others have certainly noted the vacillations of progressive and conservative judicial activism, Snyder's article calls for a renewed evaluation of Frankfurter and perhaps of popular constitutionalism.
In her opinion in American Atheists v. Port of Authority of NY and NJ Judge Deborah Batts of the Southern District of New York rejected a challenge to the plan to include a seventeen foot cross (pictured) in the National September 11 Memorial and Museum.
Judge Batts, however, did hold that the actions of the Memorial and Museum were subject to constitutional constraints. The defendants had argued that the "National September 11 Memorial and Museum at the World Trade Center Memorial Foundation" was not a state actor and thus the complaint against it, and the Port Authority, should be dismissed. Batts dispatched this argument with a rehearsal of the causal connections:
But for the Port Authority’s donation of the cross, but for the Port Authority granting the Foundation a property interest at the WTC Site, but for the Port Authority’s aid in constructing the Museum, and but for their continuing financial and operating relationship, the Foundation would not be able to include the artifact in the Museum.
She also found that the Foundation could be deemed a state actor because of its "pervasive entwinement" with the government.
The American Atheists were far less successful on their federal and state constitutionallaw arguments based on the Establishment Clause and Equal Protection.
In the more serious Establishment Clause challenge, Judge Batts concluded that the planned use of the cross passed the test of Lemon v. Kurtzman (1971). The placement of the cross in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” part of the September 11 historical narrative, was not an endorsement of religion. Judge Batts found it important that
there will be numerous secular artifacts around the cross, as well symbol steel with depictions of a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline, which will reinforce to the reasonable observer that they are perceiving a historical depiction of some people’s reaction to finding the cross at Ground Zero.
She disagreed that the size of the cross was determinative. First, the plaintiffs were mistaken that it was the largest object in the museum at seventeen feet; the "Last Column," also to be included, is thirty-seven feet tall. Second, she observed that the artifact’s size was a function of its size when it was found; "Defendants did not create the cross to be such an imposing figure."
As for the Equal Protection challenge, Judge Batts found that there was not even an allegation of intentional discrimination or animus, and that the Foundation's act would easily survive rational basis review. The Museum is merely telling the history surrounding September 11 and the cross, and its meaning for some, is part of that history. The museum has the choice whether or not to include atheistic symbols.
Because the cross is situated among other artifacts and it is in a museum, any appeal from Judge Batts' grant of summary judgment for the defendants would most likely be unsuccessful. It looks as if the September 11 Museum will include the seventeen foot cross.
Wednesday, March 20, 2013
Third in a Series: Guest Post by Versely Rosales, City University of New York (CUNY) School of Law, class of 2014
The brief submitted by National Association of Evangelicals; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-Day Saints; The Lutheran Church-Missouri Synod; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries supports the position of BLAG arguing for the constitutionality of DOMA.
The brief argues that rational basis review is the proper standard for evaluating legislation, like DOMA, that implicates questions of values, culture, and policy. The brief also argues that “moral and religious views voiced in support of DOMA do not detract from its validity.”
The rational basis argument:
This amicus brief first argues that rational basis governs because what is at issue in DOMA “is not a discrimination against a discrete and insular minority.” Instead, the issue is a “profound culture debate over the nature and meaning of marriage.” Further, because “homosexuals” have political power, they do not need extraordinary judicial protection from majoritarian interests. Thus, they can rely on the democratic political processes to engage in a debate over values, morals, judgments, and culture. Therefore, rational basis review is the only standard that allows for spirited democratic debate over the different visions of marriage that should prevail in the federal government. By applying anything other than rational basis, the Court would deprive the public of this debate. In particular, it would deny faith communities, who have a “long experience in these matters” and “unique perspectives,” to be heard by democratic decision makers.
Thus, the brief contends that the Second Circuit’s conclusion that Section 3 of DOMA is unconstitutional stands on a “rickety foundation.” The Second Circuit is faulted for “creat[ing] the first new protected class in 35 years,” and being contrary to every federal court of appeals that has addressed the question. Further, this amicus brief notes several other reasons why heightened scrutiny is “plainly improper in this case.” First, heightened-scrutiny jurisprudence contains a strong presumption against creating new suspect classes as courts should be very reluctant to closely scrutinize legislative choices. Secondly, the Constitution presumes that unjust discrimination will be remedied through the ordinary democratic process. Thirdly, the Supreme Court’s refusal to recognize any new suspect classes confirms the necessity of a very cautious approach into sensitive areas.
The amicus brief of these religious organizations criticizes the Second Circuit opinion for failing to recognize that rational basis review is the proper standard of review for preserving the primacy of the democratic process in cases turning on fundamental issues of public policy, culture, and morality. DOMA is argued to be within this category because it has become monumental cultural conflict between two major visions of marriage: traditional marriage which is centered on procreating and raising children; and the more recent, genderless, adult-orientated notion where procreation and childrearing are not central to marriage’s meaning. The traditional marriage concept has deep roots and provides a mechanism for coping with the reality that sex between men and women generally results in pregnancy and childbirth. And, whether proven or not, it is reasonable to accept that children born from opposite-sex married relationships will benefit by being raised by two parents within long-term relationships. In addition, lawmakers cannot and should not rely on social science scholars on the effects of sexual minorities parenting children because, in part, such opinions are inherently tentative and often laden with value-based assumptions. Thus, lawmakers should be allowed to use their judgments and own experience, which have led them to believe that traditional marriage and family structure deserve distinctive legal protections.
The amicus brief also points out while the Court has never adopted “the genderless, adult-centered definition of marriage,” it has “long endorsed the strong legislative preference for man-woman marriage as the foundation of our society.” Given this historical preference, the Court should construe DOMA as a rational preference for the tried and familiar over the untried and novel.
The moral and religious views argument:
The second main argument of this amicus brief contends “moral and religious views voiced in support of DOMA do not detract from its validity.” Congress identified “defending traditional notions of morality” as one of the four “governmental interests” for the enactment of DOMA. The brief argues that Congress recognized that the issue of marriage has moral or religious aspects for many Americans and that cannot be divorced from the practicalities. Lawmakers have the right to protect this valued moral norm, and when they do so, it should not be labeled as invalid just because it happens to coincide with the tenets of some - - -or all - - - religions. To declare DOMA void merely because it adheres to traditional moral and religious belief would fly in the face of this Court’s ruling that the Constitution does not allow the government to treat religion and those who practice or teach it as being subversive to American ideals and therefore subject them to unique disabilities. “By scrutinizing a law reflecting, in part, religious values more severely than others, courts would effectively target such beliefs or religious support for unusual burdens or penalties.”
Interestingly, the brief ultimately argues that to subject DOMA to heightened scrutiny simply because of its “affiliation with traditional morality would raise First Amendment concerns.”
Contribution of the Brief:
This amicus brief supports the position of BLAG that DOMA is unconstitutional. But although BLAG agrees that traditional marriage coincides with religious sections of the citizenry, it does not emphasize the moral aspect of DOMA in its brief.
The Government brief does not agree with the assertion that what is at issue is a cultural debate. The Government clearly argues in its brief that DOMA is based on discrimination and it affects the distribution of benefits to a sub-section of society. The Government also disagrees with the Amicus brief’s most basic contention: Homosexuals are not a discrete and insular minority deserving of heightened scrutiny.
The argument that the First Amendment is relevant is unique; it is not shared by BLAG or the Government.
[posted and edited by RR]
March 20, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 19, 2013
Judge Susan Illston (N.D. Cal.) ruled last week in In Re National Security Letter that the nondisclosure and judicial review provisions of the National Security Letter Statute violated free speech. But she stayed the ruling pending Ninth Circuit review.
National Security Letters are those statutory inventions that require a wire or electronic communication service provider to turn over specified categories of subscriber information if the FBI certifies that the records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities. The statute also prohibits an NSL recipient from disclosing the NSL, so long as the FBI certifies that disclosure could threaten national security. (This is the nondisclosure provision.) Finally, it provides for judicial review NSLs and nondisclosure orders, but puts a thumb on the scale in favor of the government in review. (This is the judicial review provision.)
Judge Illston ruled that the nondisclosure provision "clearly restrains speech of a particular content--significantly, speech about government conduct," even if it is not a "classic prior restraint" or a "typical" content-based restriction on speech. As such, she ruled, the provision is subject to the Freedman v. Maryland safeguards--that a restraint prior to judicial review can be imposed only for a specific period, that expeditious judicial review of the decision must be available, and that the government must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.
But Judge Illston said that the nondisclosure provision didn't meet those safeguards, in particular, it didn't provide that the government had to initiate judicial review and bear the burden of proof. Moreover, she ruled that it swept too broadly, prohibiting recipients from disclosing even the mere fact of their receipt of an NSL.
As to judicial review, Judge Illston wrote that "the statute impermissibly attempts to circumscribe a court's ability to review the necessity of nondisclosure orders," by limiting how a court might set aside an NSL.
Judge Illston concluded that there was no way to read the nondisclosure provision to save it, and thtat it was not severable from the rest of the act. But she stayed her ruling pending Ninth Circuit consideration of the case.
Friday, March 15, 2013
Portions of the show examine "the ‘aiding the enemy’ charge the government has brought against Bradley Manning, the man who gave hundreds of thousands of classified documents to WikiLeaks," including an interview with Yocahi Benkler, whose New Republic article we profiled here. More of our discussions on Bradley Manning here, here, and here.
"On the Media" is broadcast on public radio throughout the nation; this week's show is worth a listen for anyone interested in the First Amendment.
Monday, March 11, 2013
Arizona's HB 2281, which we noted when it was passed in 2010, has been primarily upheld by federal district judge Wallace Tashima in his opinion late last Friday in Acosta v. Huppenthal. Recall that HB 2281, codified as Arizona Revised Statute §15-112 provides:
A. A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:
1. Promote the overthrow of the United States government.
2. Promote resentment toward a race or class of people
3. Are designed primarily for pupils of a particular ethnic group.
4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.
Savings clauses in subsections E and F state that the statute should not be construed to restrict or prohibit instruction in various matters, including "the historical oppression of a particular group of people based on ethnicity, race, or class."
It was the savings clauses and Judge Tashima's narrow interpretation of the statute that supported his conclusion that most of the statute survived the First Amendment challenge. Judge Tashima also ruled that the statute survived the Equal Protection and Due Process challenges.
As to the First Amendment, Judge Tashima explained:
Plaintiffs’ First Amendment claims are premised on two bases: the right to speak freely in the classroom, and the right to receive information and ideas. The first basis cannot sustain their claims because the statute does not limit what students can say in the classroom. But the statute does implicate the second basis because Plaintiffs have an established right to receive information and ideas in the classroom. Limitations on this right, however, are subject only to limited scrutiny, i.e., whether the provisions are reasonably related to a legitimate pedagogical concern.
In construing the first and second provisions - - - banning courses that "promote the overthrow" or "promote resentment" - - - he stressed a narrow reading of the word "promote." He also ruled that the exception for "historical oppression" (in the savings clause section F) keeps "the proscription from crossing the constitutional line."
However, he held that the third subsection - - - "Are designed primarily for pupils of a particular ethnic group" - - - could not be similarly saved. He noted that this provision does not promote any legitimate interest that is not already covered by the second provision, and could "chill the teaching of legitimate ethnic studies courses."
He returned to his narrow reading to uphold the fourth provision - - - "advocate ethnic solidarity:"
Thus, if the statute simply proscribed courses that taught ethnic solidarity, without any reference to the treatment of students as individuals, it likely would not survive even the most deferential scrutiny. The provision, however, is more narrowly tailored than an outright ban on the teaching of ethnic solidarity. Instead, the statute prohibits the “advocacy” of ethnic solidarity “instead of the treatment of pupils as individuals.” By phrasing this provision in the alternative, and by restricting only the direct “advocacy” of ethnic solidarity, the provision is at least reasonably related to legitimate pedagogical concerns.
Judge Tashima disposed of the Equal Protection and Due Process challenges with much more expediency. Regarding Equal Protection, he found that the statute did not make an express racial classification, and although there were "red flags" and "some aspects of the record may be viewed to spark suspicion that the Latino population has been improperly targeted" that "on the whole, the evidence indicates" that it was the program and not "Latino students, teachers, or community members who supported or participated in the program" that was the issue. Regarding Due Process, Judge Tashima concluded in a paragraph that there was no prima facie showing.
It seems likely that an appeal to the Ninth Circuit will be forthcoming.
[image: 1860 map of Tucson area via]