Wednesday, December 4, 2013
In its opinion in Minority Television Project v. FCC, the en banc Ninth Circuit upheld the constitutionality of 47 U.S.C. § 399b which prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates.
Writing for the majority, Judge McKeown began by mentioning the showcase programming of public television: "Masterpiece Theater, PBS NewsHour, children’s programs such as Sesame Street and Curious George." In recognition of the "follow the money" reality, Congress recognized that advertising would "change the character of public broadcast programming and undermine the intended distinction between commercial and noncommercial broadcasting." The First Amendment challenge by Minority Television Project, a public television broadcaster, was mounted after it was fined by the FCC for violating the ban on advertising through its "underwriting announcements." While the district judge upheld the statute, a divided Ninth Circuit panel upheld only the ban on for-profit advertising, while two judges issued separate opinions striking down the statute’s ban on issue and political advertising
The en banc majority upheld the constitutionality of the entirety of the bans, applying intermediate First Amendment scrutiny from FCC v. League of Women Voters, 468 U.S. 364 (1984) that nevertheless requires that the restrictions be "narrowly tailored" to further a substantial government interest, as well as a consideration of the sufficiency of less restrictive means, but do fall short of the strict scrutiny standard advanced by Minority Television Project. Applying intermediate scrutiny, the en banc majority held that legislative record was "ample" to support the statute and that the "case 'does not present a close call' requiring us to elaborate on what evidentiary burden Congress bears in enacting a law that implicates First Amendment rights." The majority stated that "substantial evidence before Congress supported the conclusion that the advertising prohibited by § 399b posed a threat to the noncommercial, educational nature of NCE [noncommercial educational] programming and that the additional evidence bears out Congress’s predictive judgment in enacting § 399b." For the majority, "Poking holes in the congressional evidence is hardly a substitute for the scrutiny required of this court."
The most contentious disagreement involved the ban on political and issue advertising. The majority held that Congressional findings regarding commercial advertising included political and issue advertising:
Congress determined that the “insulation of program control and content from the influence of special interests—be they commercial, political or religious”—was necessary. See H.R. Rep. No. 97-82, at 16 (1981). The government’s evidence regarding the enormous sums spent on political advertising confirms Congress’s prediction that, like advertising by for- profit entities, political advertising dollars have the power to distort programming decisions. In 2008 alone, political advertisers spent $2.2 billion. As the campaign season gets longer and longer, commercial television viewers are bombarded with political and issue advertising. Prohibiting only goods and services advertising and allowing issue and political advertising would have shifted incentives and left a gaping hole in § 399b’s protections.
While recognizing that political speech has a preferred place in First Amendment hierarchies of speech, the majority nevertheless found that the Congressional consideration of "commercialization" extended to this type of speech, as well as crediting Congressional consideration of an "experiment" to allow some time, place, and manner restrictions and the Congressional rejection of that option.
Judge Callahan wrote a very brief concurring and dissenting opinion, rejecting the constitutionality of the ban on the political and issues advertising.
Chief Judge Kozinski, joined by Judge Noonan, wrote a lengthy dissenting opinion, arguing that all of the advertising bans should be held unconstitutional. This opinion interestingly begins with what one might call its own sort of advertisement for American exceptionalism and the firstness of the First Amendment:
The United States stands alone in our commitment to freedom of speech. No other nation—not even freedom-loving countries like Canada, England, Australia, New Zealand and Israel—has protections of free speech and free press like those enshrined in the First Amendment. These aren’t dead words on paper written two centuries ago; they live. In many ways, the First Amendment is America. We would be a very different nation but for the constant buffeting of our public and private institutions by a maelstrom of words and ideas, “uninhibited, robust, and wide-open.”
The dissent criticizes the majority's defence to Congress, including discussion from the FCC regarding the experiment, although the majority's opinion, in footnote 10, stated it was "surprised by the dissent’s effort to undermine the Commission’s recommendation with selective excerpts from the Commission’s report." The dissent also criticized the intermediate standard of review as being problematical and unpredictable as to outcome.
Should Minority Television Project seek certiorari, one might wonder whether Justice Sotomayor's appearance on Sesame Street will matter.
The Ninth Circuit earlier this week upheld a congressional ban on paid advertisements for for-profits, issues of public importance or interest, and political candidates. The 9-2 (or 8-1-1) ruling in Minority Television Project, Inc. v. FEC said that the ban, at 47 U.S.C. Sec. 399b, did not violate the First Amendment.
The ruling is most notable for Chief Judge Kozinski's call for the Supreme Court to reconsider its approach to the First Amendment for broadcast media. If Chief Judge Kozinski is reading the tea leaves right, this case may just be the vehicle for the Court to change course on its traditional lower-level review (and therefore greater tolerance) for speech restrictions on broadcast media.
The majority applied the traditional intermediate scrutiny test set out in League of Women Voters and ruled that 399b comfortably satisfied it:
We conclude that substantial evidence before Congress supported the conclusion that the advertising prohibited by Section 399b posed a threat to the noncommercial, educational nature of NCE programming and that the additional evidence bears out Congress's predictive judgment in enacting Section 399b.
Op. at 16. As to fitness:
In contrast [to the statute overturned in League of Women Voters], Section 399b's restrictions are narrowly tailored to the harms Congress sought to prevent. Having documented the link between advertising and programming, Congress reaffirmed the long-standing ban on advertising on NCE stations, but in a more targeted manner. In place of the prior absolute ban on promotional content, which swept within its reach a wide range of speech that did not pose a significant risk to public programming, Congress enacted targeted restrictions that leave untouched speech that does not undermine the goals of the statute. The restrictions leave broadcasters free to air enhanced underwriting, which both the FCC and Congress determined did not pose the same risk to programming as advertisements. Broadcasters may air any promotional content for which consideration was not receieved. Finally, the statute permits non-profit advertisements. As to this latter category, the government offered evidence that non-profit advertisements, which are few in number and perceived by the public as consistent with the mission of public broadcasting, do not pose the same threat as other forms of advertising.
Op. at 26-27.
The court declined the plaintiff-petitioner's invitation to apply strict scrutiny under Citizens United. The court said that "Citizens United was not about broadcast regulation; it was about the validity of a statute banning political speech by corporations." Citizens United did not "overrule decades of precedent sub silentio--especially given that the Court there expressly overruled two other cases with no mention of League of Women Voters or an intent to change the level of scrutiny for broadcasting." Op. at 13.
Judge Callahan concurred as to the prohibition against paid advertisements by for-profits, but dissented (for the same reasons as Chief Judge Kozinski) as to the prohibition on ads on issues of public importance and for political candidates.
Chief Judge Kozinski dissented (joined by Judge Noonan) with a full frontal assault on the intermediate scrutiny standard for speech restrictions in broadcast media. He wrote that the rationale for that standard "no longer carries any force." He said that intermediate scrutiny was too squishy and was undermined for broadcast media by "intervening developments" in the media. He pointed to an earlier Ninth Circuit ruling in which the court defied Supreme Court precedent based on changed circumstances, but was nevertheless affirmed by the Supreme Court. "So I guess the lesson is, we must not get ahead of the Supreme Court--unless we're right."
He obviously thinks he's right in predicting the downfall of intermediate scrutiny here.
Monday, December 2, 2013
Protesting near a military facility such as the Vandenberg Air Force Base in California can be fraught, but contours of the First Amendment as well as the actual property are before the United States Supreme Court in United States v. Apel, to be argued December 4.
The Ninth Circuit per curium opinion subject to the certiorari grant is very brief and does not address the constitutional issue:
Appellant John Apel, who was subject to a pre-existing order barring him from Vandenberg Air Force Base, was convicted of three counts of trespassing on the base in violation of 18 U.S.C. § 1382. After his convictions became final in district court, we decided United States v. Parker, 651 F.3d 1180 (9th Cir. 2011). Parker held that because a stretch of highway running through Vandenberg AFB is subject to an easement "granted to the State of California, which later relinquished it to the County of Santa Barbara," the federal government lacks the exclusive right of possession of the area on which the trespass allegedly occurred; therefore, a conviction under 18 U.S.C. § 1382 cannot stand, regardless of an order barring a defendant from the base. 651 F.3d at 1184.
However, the Ninth Circuit does specifically "question the correctness of Parker," the case upon which it is relying. In Parker, the defendant also raised First Amendment issues, but the panel decided the case on the powers of jurisdiction over the relevant strip of land.
Complicating matters is that the site where Apel was arrested is the fact that not only was Apel on a road that was under concurrent jurisdiction of federal, state, and county governments, but, according to his brief, was also in the area "set aside" for public protests.
Apel has been protesting near the Vanderburg Air Force for 14 years. Here's some great reporting on the background of the case from Scott Fina at the Santa Barbara Independent.
Sunday, December 1, 2013
While the Guy Fawkes mask is identified with the Occupy movement and with "Anonymous," it has reportedly been adopted by at least one protestor against health care reform - a Florida protestor who was also a police officer carrying a hand gun.
As we've previously discussed, First Amendment challenges to the criminalization of wearing a mask have not been very successful, but there are definitely valid constitutional arguments.
For ConLaw Profs drafting exam questions, this could be an interesting issue, especially if it were integrated into the other challenges to the PPACA, such as the recent grant of certiorari in Hobby Lobby and Conestoga Wood, including Judge Rovner's hypotheticals.
More about the arrest and Florida statutory scheme is here.
Wednesday, November 27, 2013
The Treasury Department yesterday announced that it will propose new guidance for social welfare organizations that will better define the requirements for tax-exempt status for those organizations engaged in candidate-related political activities.
The new proposed guidance is aimed at 501(c)(4) organizations, which are organized under the IRC for social welfare purposes, but nevertheless engage in significant political activities. The 501(c)(4) form allows these organizations to fly under the radar while still engaging in politics. For example, 501(c)(4) organizations need not disclose their donors to the FEC, and they need not disclose all of their political activities to the IRS. (The Center for Responsive Politics notes that "Americans for Tax Reform, for instance, told the FEC it spent $15.8 million on independent expenditures in 2012, while it told the IRS it spent just $9.8 million.) An organization can retain its 501(c)(4) status so long as less than half (up to 49%) of its activity is political.
These "dark money" organizations have exerted dramatically increased influence in elections: "While nonprofit organizations spent just $5.2 million on federal elections in 2006, that number rocketed to more than $300 million by 2012," according to The Daily Beast. These organizations include tea party groups and others that the IRS targeted, leading to an IG report earlier this year, which led to the proposed rules.
The proposed guidance is designed to make it easier for the IRS to determine whether a social welfare organization exceeds the threshold for candidate-related political activities by better defining those activities. "These proposed rules reduce the need to conduct fact-intensive inquiries, including inquiries into whether activities or communications are neutral and unbiased." The likely net result is that some or many of these organizations will find that their activities now increase the percentage of "candidate-related political activity" in which they're involved, forcing them either to reduce their political activities or to lose their non-profit status.
The proposed guidance "defines the term 'candidate-related political activity,' and would amend current regulations by indicating that the promotion of social welfare does not include this kind of activity." In particular, the guidance defines certain communications, grants and contributions, and activities closely related to elections or to candidates as "candidate-related political activity."
Citizens for Responsibility and Ethics in Washington has a statement here and a resource page here. The Center for Responsive Politics has a statement here and a resource page, with a nice graphic, here.
Tuesday, November 26, 2013
As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.
In lengthy opinions, the Tenth Circuit en banc in Hobby Lobby essentially divided 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause. The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.
The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both. First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010), distinguishing free speech from free exercise of religion. Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.
For ConLaw Profs, here are some useful links: A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here; a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here, ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here, a discussion of the district judge's opinion in Hobby Lobby is here, a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.
[image: Supreme Court Justices by Donkey Hotey via]
November 26, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Religion, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Sunday, November 24, 2013
Judge Barbara Crabb (pictured) of the Western District of Wisconsin concluded in her opinion in Freedom from Religion Foundation v. Lew that 26 U.S.C. § 107(2) violates the establishment clause of the First Amendment to the United States Constitution.
The statute at issue provides that:
In the case of a minister of the gospel, gross income does not include—(1) the rental value of a home furnished to him as part of his compensation; or
(2) the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home and to the extent such allowance does not exceed the fair rental value of the home, including furnishings and appurtenances such as a garage, plus the cost of utilities.
I am not aware of any decision in which a majority of the Supreme Court considered whether a claim under the establishment clause would be defeated if the particular benefit at issue were granted to atheists, but still excluded secular groups. At least in the context of this case, there is a plausible argument that the claim would survive. . . .
Regardless, to the extent defendants mean to argue that § 107(2) is constitutional because of an abstract possibility that an atheist could qualify as a minister of the gospel, I disagree. . . .
In this case, no reasonable construction of § 107 would include atheists. In the concurring opinion in Texas Monthly that defendants cite, Justice Blackmun rejected as “facially implausible” an argument that atheistic literature could be included as part of “[p]eriodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith.” Texas Monthly, 489 U.S. at 29 (Blackmun, J., concurring in the judgment). Defendants do not explain why they believe interpreting § 107 to include atheists is any more plausible. Hearings Before the H. Comm. on Ways & Means, 83rd Cong. at 1574-75 (sponsor of § 107(2) stating that purpose of law was to help ministers who are “fight[ing] against” a “godless and anti-religious world movement”).
The issue of whether §107 would plausibly cover atheists was also important to Judge Crabb's conclusion that the plaintiff organization and individual plaintiffs had standing.
Judge Crabb's opinion centers the exclusion of nonbelievers as well as the Lemon test in a way that some current Establishment Clause litigation fails to do, such as the recent oral argument in Town of Greece v. Galloway. The constitutionality of government preference for religion over "irreligion" is an unsettled contention at the heart of Establishment Clause jurisprudence. It ensures the decision will be appealed to the Seventh Circuit.
Friday, November 22, 2013
The Federal Election Commission split 2-2 and thus denied a request from the Tea Party Leadership Fund for an exemption from FEC disclosure requirements of names of individual contributors who contributed more than $200 to the group. The non-action means that the Tea Party Leadership Fund will have to disclose contributors like everybody else subject to the FEC's disclosure requirement. NPR reports here.
The Tea Party argued that its donors are subject to harassment and hostility from government officials and private actors--with over 1,400 pages of evidence. Two Commissioners reportedly agreed, and two disagreed. The two competing draft FEC opinions are here. The Commission, splitting 2-2, didn't accept either. That meant that the Tea Party's request was denied.
The Court upheld disclosure requirements against a facial challenge in Buckley v. Valeo. But it also said that the disclosure requirements might be unconstitutional as against a minor party that could show a "reasonable probability" that its contributors would be subjected to threats, harassment, and reprisals if their contributions were disclosed. Buckley at 69-74 (discussing NAACP v. Alabama).
Courts and the FEC have awarded an exemption under this standard only in very narrow cases, to the Communist Party and the Socialist Workers Party, minor parties that "rarely have firm financial foundation." On the other hand, a court in 2011 denied an exemption to ProtectMarriage.com, a group that raised $30 million and supported California's Prop 8 (banning same-sex marriage in the state). (Doe v. Reed, the Court's 2010 case, involved disclosure, but by way of a state's Public Records Act, not the FEC regs.)
Tuesday, November 19, 2013
Among the materials released today as we discussed earlier, is the 87 page opinion by the Presiding Judge of the Foreign Intelligence Surveillance Court, again difficult to name or cite given that the usual caption material is redacted:
But the opinion's footnote 27 with the portions redacted - - - and not redacted - - - does deserve special notice:
"For ease of reference, the term XXXXXXXXXXXXX is used to mean XXXXXXXXXXXXXX."
Monday, November 18, 2013
In its routine order list today, the Court's list of "MANDAMUS DENIED" included "13-58 - IN RE ELECTRONIC PRIVACY INFORMATION CENTER."
The petition for writ of mandamus and prohibition or writ of certiorari was filed by the Electronic Privacy Information Center and essentially sought review of an Order from the Foreign Intelligence Surveillance Court. The order redacts the names of the parties from whom the "tangible things" are sought, but the petition describes the order as compelling "Verizon Business Network Services to produce to the National Security Agency, on an ongoing basis, all of the call detail records of Verizon customers."
As one of its Questions Presented, the petition stated:
Whether the Foreign Intelligence Surveillance Court exceeded its narrow statutory authority to authorize foreign intelligence surveillance, under 50 U.S.C. § 1861, when it ordered Verizon to disclose records to the National Security Agency for all telephone communications “wholly within the United States, including local telephone calls.”
The import of the Supreme Court's denial is both trivial and momentous. On the one hand, there is little if anything to be read into the Court's refusal to exercise its highly discretionary power to grant a petition for a writ as it does in 1% of cases. On the other hand, there is something to be inferred about the Court's interest in and willingness to supervise the unusual FISA given constitutional rights.
But the Court's failure to accept the case certainly does not mean the underlying issues will be so easily dispatched.
Daily Read: "Reassignment" by Toby Heytens (or was it so unusual that the Second Circuit reassigned the "Stop and Frisk" cases?)
As we discussed last week, in In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin and as to the removal of Judge Scheindlin, wrote that reassignment "while not an everyday occurrence, is not unusual in this Circuit" and in support cited nine cases from 1999 - 2011, and discussed that it occurs in other circuits.
Would that the panel had had Professor Toby Heytens' forthcoming article, simply entitled "Reassignment," available in draft on ssrn. Heytens discusses more than 650 reassignment cases and concludes that circuit courts have
exercised that power in pretty much every type of case imaginable: criminal cases and civil cases, federal question cases and diversity cases, “big” cases and “small” cases. Reassignment has been going on since 1958, but the pace seems to be quickening: more than 20% of the cases in my 55-year dataset were decided during the last five years, at a rate of a little more than one every two weeks during that span.
Although Heytens begins his article discussing a contentious 1996 case from the Second Circuit, involving District Judge Jack Weinstein of New York, he finds that it is another circuit that has by far the most reassignments. Guesses? It's the Seventh Circuit. Interestingly, the Seventh Circuit is the only one to have a circuit rule governing reassignments and thus allows for the circuit panel to simply cite the rule and not provide any rationale for the change. Depending upon one's point of view, this may have obscured the "removal" of Judge Scheindlin or it might have portrayed it as a normal procedure.
Although not focused on Scheindlin, here's what Heytens says about the possible differences:
On one hand, this may seem problematic, because it violates the intuition that public reason-giving is an important part of justifying the exercise of coercive judicial power.
On the other hand, reassignment underscores that there can be virtues in circumspection as well. Appellate court decisions have many audiences: not just the trial judges and the parties, but also other judges, future litigants, and other interested readers. Both the Seventh Circuit’s approach of ordering reassignment via an unexplained reference to a circuit rule that may not mean anything to most readers and the First Circuit’s approach of separating the reassignment order from the underlying opinion can be seen as ways of reducing the salience of the decision to order reassignment and thus make the decision feel less like a public scolding.
In the stop and frisk cases, the public scolding aspect of the Second Circuit's brief initial opinion predominated - - - at least in its reception by the public. Indeed, the revised opinion seemingly took pains to refute that interpretation.
In his conclusion, Heytens identifies the question of "whether more fine-grained methods of measuring judicial ideology reveal any interesting patterns about how appellate judges use reassignment" as one meriting further investigation. Certainly the reassignment of Judge Shira Scheindlin in the highly controversial stop and frisk cases will prove fertile ground. Moreover, the question of disciplining a judge's out-of-court activities, including those that might implicate the First Amendment, should also be added to the mix.
[image of circuit courts of appeal map via]
Sunday, November 17, 2013
The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one. Here's an overview of (and reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.
For those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals. [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].
Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.
In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS. The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.
In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."
In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views. One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement. The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.
These hypotheticals would make a terrific in class discussion. They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.
November 17, 2013 in Cases and Case Materials, First Amendment, Interpretation, Medical Decisions, Opinion Analysis, Recent Cases, Religion, Reproductive Rights, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Rapper and celebrity Kayne West is selling tour t-shirts with an image of the Confederate flag and provoking controversy, as this video shows:
But what if a student wanted to wear such a shirt to public school?
Last month, the United States Supreme Court denied a petition for writ of certiorari to the Fourth Circuit's decision in Hardwick v. Heyward, thus continuing its refusal to hear cases in which circuit courts have upheld the ability of schools to prohibit Confederate flag gear or apparel against a First Amendment claim by students.
Applying Tinker v. Des Moines Independent Community School District, the circuit and district courts have generally held that there is a likelihood of substantial dispruption, whether or not the school has had a history of racial violence, and whether or not there is agreement that the meaning of the Confederate flag is connected to racism or even race.
More about the issue of wearing the Confederate flag in schools is in my column for the London School of Economics blog.
Wednesday, November 13, 2013
In a 15 page opinion (with extensive appendices) issue late Wednesday, In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin, which we discussed here. Calling her a "long serving and distinguished jurist of the United States District Court for the Southern District of New York," the Second Circuit panel nevertheless again concluded that "reassignment is advisable to preserve the appearance of justice."
Recall that the underlying controversy involves Judge Shira Scheindlin's orders in Floyd v. City of New York and in Ligon v. City of New York regarding the NYPD's implementation of stop and frisk as violative of equal protection.
In today's opinion, the panel
"explains the basis for our order of October 31, 2013, directing the reassignment of these cases to a randomly selected district judge and supersedes that order. To reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct. We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin’s appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that “reassignment is advisable to preserve the appearance of justice.”
The explanation stresses that the opinion is based on the appearance of partiality rather than any "findings of misconduct, actual bias, or actual partiality on the part of Judge Scheindlin." Again, this appearance of partiality is twofold. First, there are the judge's statements on the record in a related case. After quoting some of the statements, the panel concluded:
We believe that a reasonable observer viewing this colloquy would conclude that the appearance of impartiality had been compromised. We do not mean to suggest that a district judge can never engage in a colloquy with a party during which the judge advises the party of its legal or procedural options. However, we think, particularly in combination with the public statements described below, that a reasonable observer could question the impartiality of the judge where the judge described a certain claim that differed from the one at issue in the case before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim could be viable and would likely entitle the plaintiffs to documents they sought, and advised the party to designate it as a related case so that the case would be assigned to her.
Second, the panel considered - - - as the "statements described below" - - - the judge's statements to the press. While the panel noted the judge "did not specifically mention the Floyd or Ligon cases in her media interviews," nevertheless, the context was critical. And while "nothing prohibits a judge from giving an interview to the media,"
judges who affiliate themselves with news stories by participating in interviews run the risk that the resulting stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’”
The panel opinion does not reference the First Amendment. The panel did, however, reference the Code of Conduct for United States Judges, but only to disavow its mention in the earlier order. Here, the Second Circuit panel of judges wrote,
We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act. . . .
But as to the removal - - - or reassignment - - - the panel again found this to be the proper remedy. Reassignment, the panel wrote, "while not an everyday occurrence, is not unusual in this Circuit." In support of this, the panel cited nine cases from 1999 - 2011. The panel also noted it occurs in other circuits. [UPDATE: For scholarship on this topic, see here].
Thus, the opinion softens some of the original language, expanding on the relatively brief previous order, but does not waver from the conclusion or remedy. If the original order was a "slap" as some people characterized it, this replacement is more of a stern lecture rendered in patronizing and disappointed tones.
Monday, November 11, 2013
The Veterans Day Off Bill, reintroduced by Congressperson Bruce Braley of Iowa this year would require employers with more than 50 employees to give any veteran Veterans Day off, with or without pay. The bill includes an exemption for cases in which the day off would negatively impact public health or safety, or cause significant economic or operational disruption.
First, there could be an equality challenge. Nonveterans could challenge the law as a denial of the equal protection component of the Fifth Amendment. Certainly the law would be making a classification between veterans and nonveterans. However, this classification receives receives the lowest level of scrutiny from the courts: the government would have the legitimate interest of "honoring veterans" and a single day off, that could be without pay, would most likely be reasonable. It would be similar to veterans preferences in government employment which have been held constitutional, even though they have a disparate negative impact on women, as in Personnel Administrator of Massachusetts v. Feeney, decided by the United States Supreme Court in 1979.
Second, there could be a challenge to Congressional power to require private employers to allow employees a day off. Requirements that private employers do not practice race or sex discrimination, or comply with wage and hour laws, or provide family medical leave, have all been held constitutional. This law would be similar to those laws, as well as the the federal law protecting employment for those serving in the military, the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Bill does not apply to employees working for state governments where the Eleventh Amendment could serve as a potential bar to lawsuits seeking to vindicate rights.
Lastly, should the United States Supreme Court ever recognize that secular for-profit corporations have a free exercise of religion right under the First Amendment, the future could bring a challenge by the major shareholders of a corporation that sells sequins or makes kitchen cabinets or sells groceries on the basis that the shareholders are Quakers, for example, who have a sincere and deeply held pacifist religious belief that would be burdened by being mandated to support a day off for someone who had participated in the activities of war.
[image: The Afghanistan-Iraq War Memorial in Salem, Oregon, via]
Saturday, November 9, 2013
Federal district judge Freda Wolfson has upheld the constitutionality of New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in her extensive opinion in King v. Christie.
Recall that Chris Christie - - - now the recently re-elected Governor of New Jersey - - - signed the bill into law last August, accompanied by a signing statement, and that the plaintiffs, including Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”), argued that the statute violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.
The district judge found that the First Amendment challenges raised by the plaintiffs were the most serious ones, but also found that the statute restricts neither speech nor religious expression, and that the statute survived rational basis scrutiny.
Regarding speech, Judge Wolfson concluded that on its face, the statute plainly regulates conduct, quoting the statutory language:
“shall not engage in sexual orientation change efforts,” and further defines “‘sexual orientation change efforts” as “the practice of seeking to change a person’s sexual orientation.”
(emphasis in opinion). She extensively discussed the Ninth Circuit's opinion in Pickup v. Brown, upholding a smiliar California statute prohibiting SOCE. She briefly distinguished the federal district judge's opinion in Wollschlaeger v. Farmer declaring unconstitutional Florida's prohibition of physicians asking patients about gun ownership, noting that unlike the Florida law, the NJ statute "does not seek to regulate the conveying of information, only the application of a particular therapeutic method." She also confronted the implications of the plaintiffs' arguments:
there is a more fundamental problem with Plaintiffs’ argument, because taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible. Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services.
She likewise rejected the argument that there was sufficient expressive conduct to merit an analysis under the intermediate scrutiny standard of O'Brien, finding instead that rational basis was the appropriate standard and switching to a due process analysis, having "rejected Plaintiffs' First Amendment free speech challenge." (footnote 22). Not surprisingly, she finds this standard easily satisfied. Relatedly, she easily concludes that the challenge to the term "sexual orientation" as vague and the challenge to the statute as overbroad are both without merit.
As to the free exercise of religion challenge, Judge Wolfson concludes that the statute is a neutral one of general applicability and rejects the argument that the statute's exceptions create a disproportionate impact on religious expression. Again, she concludes that rational basis applies and for the same rationales discussed in the free speech analysis, the statute easily satisfies the standard.
In other matters, the judge found that the plaintiffs did not have sufficient Article III standing to raise the injuries to their minor clients and their parents. On the other hand, the judge granted intervernor status to Garden State Equality.
The judge's opinion is a well reasoned one, and is certainly buoyed by the Ninth Circuit's similar conclusion.
The plaintiffs filed a Notice of Appeal immediately, so the matter is already on its way to the Third Circuit.
[image: Diagram of the Brain circa 1300 via]
November 9, 2013 in Due Process (Substantive), Family, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Friday, November 8, 2013
In its opinions in excess of 150 pages in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, a divided panel of the Seventh Circuit has (again) entered the fray regarding the claim of secular for-profit corporations that rights of religious freedom have been infringed by the (PP)ACA's so-called contraception mandate. We've discussed the complicated landscape here, and specific cases such as the divided DC Circuit's opinion in Gilardi v. HHS, by the Sixth Circuit in Eden Foods v. Sebelius and Autocam Corp. v. Sebelius, by the divided Third Circuit in Conestoga Wood Specialties Corp. v. Secretary of HHS, and, of course, in the divided en banc opinion of the Tenth Circuit in Hobby Lobby, presently before the United States Supreme Court on a petition for writ of certiorari.
In this consolidated opinion in Korte and Grote, the majority of the Seventh Circuit panel - - - in an opinion authored by Judge Diane Sykes and joined by Judge Joel Flaum - - - reiterated its previous views and its previous divide - - - with Judge Ilana Diamond Rovner again dissenting - - - now that the "appeals have now been briefed and argued and are ready for decision."
These cases—two among many currently pending in courts around the country—raise important questions about whether business owners and their closely held corporations may assert a religious objection to the contraception mandate and whether forcing them to provide this coverage substan- tially burdens their religious-exercise rights. We hold that the plaintiffs—the business owners and their companies—may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religious- exercise rights. Under RFRA the government must justify the burden under the standard of strict scrutiny. So far it has not done so, and we doubt that it can. Because the RFRA claims are very likely to succeed and the balance of harms favors protect- ing the religious-liberty rights of the plaintiffs, we reverse and remand with instructions to enter preliminary injunctions barring enforcement of the mandate against them.
(emphasis in original).
Korte & Luite Johan Contractors, Inc., is general contractor in Illinois, employing about 90 full-time employees, 70 of whom belong to a union that sponsors their health-insurance plan, and 87% of the stock is owned by Cyril and Jane Korte, who describe themselves as devout Roman Catholics. Interestingly, as the opinion relates, in August 2012, the
Kortes discovered that their then-existing health plan covered sterilization and contraception—coverage that they did not realize they were carrying. Because providing this coverage conflicts with their religious convictions, they began to investigate alternative health-care plans with the intention of terminating their existing plan and substituting one that conforms to the requirements of their faith.
But, they now argue, the ACA's contraception mandate stands in their way. Also interestingly, although not in the court's opinion, the Korte company has been awarded the contract to renovate the Illinois Supreme Court building, in a contract for more than 7 million dollars.
The Grotes include six individual plaintiffs who own and manage Grote Industries, Inc., a manufacturer of vehicle safety systems headquartered in Indiana, having 1,148 full-time employees at various locations, including 464 in the United States, and providing a health-care plan that is self-insured.
The opinions and analysis are extensive, but they provide little that is different from their previous opinions or from other courts' opinions, with the exception of dissenting Judge Rovner's hypotheticals discussed below. The majority's analysis on the individual plaintiffs focuses on standing and there is no resort to the "pass through" test that some other courts have used. Regarding RFRA, the majority relies on the Dictionary Act's definition of "person," and concludes that covering corporations within RFRA is not a "poor fit," indeed,
A corporation is just a special form of organizational association. No one doubts that organizational associations can engage in religious practice. The government accepts that some corporations—religious nonprofits—have religious-exercise rights under both RFRA and the Free-Exercise Clause.
The majority uses a series of First Amendment Free Exercise Clause cases, including Sherbert v. Verner, the Seventh Day Adventist employee seeking workers' compensation benefits, and Braunfeld v. Brown, the "Jewish merchants" challenging a Sunday-closing law, to conclude that such" cases show that far from categorically excluding profit-seekers from the scope of the free-exercise right, the Supreme Court has considered their claims on the merits, granting exemptions in some and not others based on the compelling-interest test."
Dissenting, Judge Rovner contends that while her "esteemed colleagues have made the best case possible for the notion that the contraception mandate interferes with the plaintiffs’ free exercise rights," she believes that the majority's "holding and rationale represent an unprecedented and unwarranted re-conception of both what the free exercise of religion entails and what constitutes a substantial burden on that exercise," because the majority "extends a highly personal right to a secular corporation, a man-made legal fiction that has no conscience enabling belief or worship." She continues regarding the substantial burden - - - or what she sees as a lack therefof - - - and notes that the majority "permits the plaintiffs to invoke their free exercise rights offensively rather than defensively, in a way that circumscribes the rights Congress has given to employees, by permitting the corporate employers to rewrite the terms of the statutorily- mandated health plans they provide to their employees."
Judge Rovner's opinion is most provocative - - - and probably most useful for Constitutional Law Professors - - - in providing three hypotheticals worth considering. [Update: discussion of hypotheticals here].
Wednesday, November 6, 2013
Update on Stop and Frisk Judge's Removal by Second Circuit: Judge Shira Scheindlin Seeks Intervention
It was not only that a panel of the Second Circuit stayed Judge Shira Scheindlin's orders in Floyd v. City of New York and in Ligon v. City of New York regarding the NYPD's implementation of stop and frisk as violative of equal protection. But the panel - - -consisting of Judges John M. Walker, Jr, José A. Cabranes, and Barrington D. Parker - - - took the unusual move of removing Judge Scheidlin from the case, as we discussed here.
Now, counsel on behalf of Judge Scheindlin, have filed a Request for Leave to File Motion to Address Order of Disqualification (here). In addition to rules of appellate procedure, the motion relies upon the First and Fifth Amendments. Specifically, the motion alleges that discussion of important legal issues by members of the judiciary is crucial to public understanding of the rule of law and is consistent with the values of the First Amendment, and that the general discussions by the judge cannot be deemed to "run afoul" of the Code of Judicial Conduct and cannot justify a sua sponte order removing her as judge.
The removal of the judge has been roundly criticized, but now the Second Circuit has been asked to respond.
Oral Arguments in Town of Greece v Galloway: Can the Town Council Ask Those Attending to Bow Their Heads and Pray?
The Court today heard oral arguments in Town of Greece v. Galloway regarding a New York town's practice of opening its council meetings with prayers, the large majority of which have been Christian.
unanimous panel opinion of the Second Circuit held that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity" and violated the First Amendment's Establishment Clause. The case has attracted much attention - - - a great PBS video is here - - - and in a move that surprised some, the Obama Administration filed a brief in support of the town.
Doctrinally, the arguments centered on an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature's employment of a chaplain to lead a legislative prayer. The majority opinion, authored by Chief Justice Burger, was seemingly not worried that the same chaplain had been employed for almost two decades, and relied upon the historical practice of legislative prayer. Among the many references to Marsh in the argument and its reliance on history is this one with (ConLawProf) Douglas Laycock, representing the challengers to the prayer, after some laughter:
JUSTICE KENNEDY: I mean, I'm serious about this. This involves government very heavily in religion.
MR. LAYCOCK: Well, government became very heavily involved in religion when we decided there could be prayers to open legislative sessions. Marsh is the source of government involvement in religion. And now the question is how to manage the problems that arise from that.
JUSTICE ALITO: Well, Marsh is not the source of government involvement religion in this respect. The First Congress is the source.
MR. LAYCOCK: Fair enough. The tradition to which Marsh points.
JUSTICE ALITO: The First Congress that also adopted the First Amendment.
Yet another possible distinction from Marsh is the Town of Greece town council is a "hybrid" body which has administrative function and persons appearing before it who are seeking specific relief, as well as being local. Justice Ginsburg complimented the Deputy Solicitor General, who argued as amicus curiae, supporting the Town of Greece, for being "quite candid" about this quality and stating that it would be proper to have "certain checks" in that setting. But the nature of those checks preoccupied the arguments. Does it matter how far the prayer and the "hearing" are separated in time? Should there be guidelines for those giving the prayers - - - and how much does this involve (entangle) the government in religious matters? Does it matter if the attendees are asked to show their hands if they personally feel in need of prayer? (To which Justice Scalia interjected, "That's not a prayer.") Additionally, there was little satisfaction with either the coercion or endorsement tests, and the (in)famous Lemon test made no appearance at all.
For some Justices, prayer as practiced in the Town of Greece council meetings seemed deeply troubling. For example, Justice Kagan quickly interrupted Thomas Hungar, arguing on behalf of the town:
JUSTICE KAGAN: Mr. Hungar, I'm wondering what you would think of the following: Suppose that as we began this session of the Court, the Chief Justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators. And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, we acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side. The members of the Court who had stood responded amen, made the sign of the cross, and the Chief Justice then called your case.
During his rebuttal argument, Mr. Hungar's attempt to demonstrate the town was not sectarian in its prayer was less than successful for Justice Sotomayor:
MR. HUNGAR: Thank you, Mr. Chief Justice.
First I would like to correct one factual misimpression, the assertion that only non-Christian prayer-givers delivered the prayer after 2008. It's not in the record, but the official web site of the Town of Greece shows that at least four non-Christian prayer-givers delivered prayers thereafter in 2009, '10, '11 and '13.
JUSTICE SOTOMAYOR: Counsel.
MR. HUNGAR: I'm sorry?
JUSTICE SOTOMAYOR: One a year.
MR. HUNGAR: I'm sorry, Your Honor?
JUSTICE SOTOMAYOR: Four additional people after the suit was filed.
MR. HUNGAR: Yes, Your Honor.
JUSTICE SOTOMAYOR: One a year.
MR. HUNGAR: Approximately.
JUSTICE SOTOMAYOR: How often does the legislature meet?
HUNGAR: Once a month.
And on the sectarian line . . . . .
Friday, November 1, 2013
Dave Eggers' new novel, The Circle, is a thought-provoking read for anyone working on surveillance, state secrets, corporate governance, privacy, or First Amendment issues as broadly defined. There are have been some questions raised, as in the review in Wired, whether the book is technologically sophisticated - - - I'd say it's not - - - or whether it works as literature - - - again, I'd lean towards not. I also think there are some gender and sexual politics that merit further analysis and mar the novel. But even with these faults, it is one of those books that gives expression to the way one sees daily life in our connected age.
Margaret Atwood has a terrific review of the book in New York Review of Books that gives a good overview of the themes, laced with literary references that the novel itself lacks. Discussing the book over at the New Yorker Blog, Betsy Morais contextualizes the novel, including some of the criticisms and analogues. There's a good rundown of reviews and the divisions about the book in The Atlantic "Wire."
The book lingers after it is read because it raises interesting questions about the relationships between corporate power and government, as well as our complicity in this internet and social age. And it's a quick read - - - especially electronically.
UPDATE: And here's the NYT Sunday Book Review by Ellen Ullman, who concludes the novel "adds little to the debate" : "Books and tweets and blogs are already debating the issues Eggers raises: the tyranny of transparency, personhood defined as perpetual presence in social networks, our strange drive to display ourselves, the voracious information appetites of Google and Facebook, our lives under the constant surveillance of our own government."