Thursday, December 20, 2012

D.C. Circuit: NLRB Ruling Against Newspaper Violates First Amendment

A three-judge panel of the D.C. Circuit ruled this week in Ampersand Publishing, LLC v. NLRB that the National Labor Relations Board violated free speech when it ruled that the Santa-Barbara News-Press newspaper (published by Ampersand) violated the NLRA for sanctioning employees for the alleged bias in their articles.

The ruling is a reminder that free speech belongs to the publisher, not the reporters, when a publisher and its employees clash in employment disputes over the content of the publication.

The case arose out of a long-running dispute between Ampersand Publishing and employees of its Santa-Barbara News-Press over the content and viewpoint of the newspaper.  The publisher took measures to correct what it viewed as a slant in newspaper reporting.  Employees balked, arguing that the publisher was tilting stories the other way.  Employees protested, repeatedly demanding that the publisher "restore journalism ethics" to the paper, and eventually demanded that the publisher recognize a union. 

The publisher fired nine union-supporting employees--two for allegedly biased reporting, one for refusing to fire allegedly biased reporters, and six for publicly protesting the paper.  The publisher also cancelled a union-supporter's column and gave four others lower evaluations than they received in the past.

The union filed a complaint against the publisher, and an ALJ found, and the NLRB affirmed, that each of these acts violated the NLRA.

The D.C. Circuit vacated that ruling, holding that it violated the publisher's free speech.  "Where enforcement of the [NLRA] would interfere with a newspaper publisher's 'absolute discretion to determine the contents of [its] newspaper[],' the statute must yield."  Op. at 8, quoting Passaic Daily News v. NLRB, 736 F.2d 1543, 1557-58 (D.C. Cir. 1984).  "The First Amendment affords a publisher--not a reporter--absolute authority to shape a newspaper's content."  Op. at 8.

The court said that employees couldn't get around this by claiming that the publisher punished them for their pro-union activities (and not only their allegedly biased stories).  For one, the court said that all their protests referenced the publisher's content- and viewpoint-based decisions (the publisher's protected by free speech), not its anti-union actions (not protected by free speech).  For another, the employees can't sidestep the First Amendment's protection of the publisher's decisions simply by adding an allegation that the publisher violated the NLRA.  "Here, of course, the First Amendment wholly favors protection of the employer's interest in editorial control, the main issue in dispute; it is hard to imagine that employees can prevail over that simply by adding 'a few verses' of wage demands."  Op. at 13, referencing Judge Friendly's opinion in U.S. v. A Motion Picture Film Entitled "I Am Curious-Yellow," 404 F.2d 196, 201 (2d Cir. 1968).

SDS

December 20, 2012 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Read: William Ford on the Law and Science of Violent Video Games

The national conversation on violence has shifted since last week to include not only discussions of the Second Amendment, the role of conlaw scholars, appropriate quotations, and arming school teachers, but also "violent video games."

Mortal kombatAny mention of the regulation of violent video games occurs in the shadow of the Court's 2011 decision in Brown v. Entertainment Merchants Association in which the Court held unconstitutional California's statute prohibiting the sale of violent video games to minors under the age of 18 without parental permission. Scalia, for the Court, assessed the statute under the First Amendment, reasoning that the statute was not narrowly tailored:

As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.

In dissent, Breyer cited more than 100 studies on the links between violent video games and aggression, contending that legislatures were in a better position to assess such social science data than judges.

Ford-williamProfessor William Ford (pictured) interrogates the scientific and social scientific underpinnings of video game regulation.  In his article The Law and Science of Video Game Violence: What Was Lost in Translation?, forthcoming in Cardozo Arts & Entertainment Law Journal, available in draft on ssrn, Ford ultimately agrees with the Court's conclusion in Entertainment Merchants Association, given that "the First Amendment interests at stake in these cases outweighed the speculative possibility that a legislature is better able to assess scientific evidence than the courts."   He criticizes Breyer's view that legislatures are better positioned to assess the data than judges, by noting that legislators are also ill-equipped as social scientists.  Ford states that "there is no study, let alone a literature, assessing the relative skill of legislators and judges in reviewing or assessing scientific evidence."  Ford then implies that legislators might be less able to assess the evidence, because "the dominant goal usually associated with legislative behavior is reelection, which is not necessarily conducive to the careful assessment of scientific evidence." Taken to its logical conclusion, that sentiment would have the courts very busy indeed, and would obliterate deferential review in constitutional law.

Ford's arguments about the social science literature, however, are exceedingly well-taken.  In sum, it is inconclusive at best.  Considering not only Entertainment Merchants Association, but other legislation and cases, he summarizes:

The relevant literature is large, especially when one recognizes that these cases cannot just be about whether video game “violence” causes “aggression.” At a minimum, these cases were also about, or should have been about, a nuanced view of what counts as violence and aggression, how to operationalize violence and aggression, what types of violence may be particularly harmful, who might be most susceptible to harmful effects from violent media, and whether government restrictions would do anything to alleviate the harm.

Ford's article is also worth a read for its excellent discussion of "causation" in the debates about the role of video games.  This is an issue that may surface as more facts become known about recent events - - - and even more studies are produced that may be used by legislators and courts.

RR
[image: Mortal Kombat via]

 

December 20, 2012 in Current Affairs, First Amendment, Games, Scholarship, Second Amendment, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 19, 2012

D.C. Circuit Orders Halts ACA Contraception Challenges, but Keeps Eye on Government

A three-judge panel of the D.C. Circuit yesterday ordered challenges to the Affordable Care Act's requirement that covered employers offer group health insurance plans that provide certain forms of contraception, without cost sharing, in abeyance.  The ruling in Wheaton College v. Sebelius means that these challenges will not go forward in the D.C. Circuit, until and unless the government goes back on its promise to write new regulations that exempt religious employers, and that they are unlikely to go forward elsewhere.

Recall that these cases involve religious employers' objections to the ACA's contraception requirement under the First Amendment, the Administrative Procedures Act, and the Religious Freedom Restoration Act.  Lower courts dismissed the cases, however, on the government's commitment to write new regulations that would exempt religious employers.  

We covered the most recent case, with links to others, here.

The D.C. Circuit's Order puts an exclamation point after these earlier lower-court rulings.  The Order refers to the government's prior commitments to write new regs, but also to its specific commitment at oral argument to never enforce the contraception rule against Wheaton College or those similarly situated.  The court said: "We take the government at its word and will hold it to it."

Still, the court didn't dismiss the cases.  Instead, it ordered them held in abeyance, "subject to regular status reports to be filed by the government with this court every 60 days from the date of this order."  Thus the Order puts the burden on the government to continue to move forward in writing new regs.

SDS

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

Daily Read: Claire Potter's "Teachers Are Not Soldiers"

If the often touted solution to unacceptable speech is "more speech" in the First Amendment context, perhaps there is a parallel Second Amendment solution, as in "more guns."  Indeed, one repeated suggestion to prevent school shootings is to arm teachers with sufficient fire power.

Cpotter01Claire Potter (pictured) contemplates this suggestion in her popular Chronicle of Higher Education column "Tenured Radical."  Her latest post "Teachers are not Soldiers," highlights the ethical and moral rationales for not allowing violence to escalate into our schools and universities.

But Potter also has a compelling and deeply pragmatic argument. She relates an incident when a student was killed on campus and she and her colleague suspected that perhaps "Jack," a student who had been acting unbalanced, was the perpetrator:

Imagine if, because of our uncertainty about what was wrong with Jack or what it meant, we had greeted our innocent student — already laboring under great emotional strain — with a couple of handguns in the face. Imagine, worse, if there had been a second, inadvertent, killing that day because we misread his fear, anger or confusion as aggression. Veteran police officers, well trained as they are, make this mistake with far too great a frequency in the city I now live in. Historically, and in our current wars, so do soldiers. 

Potter's post is worth reading in full, especially if you can't precisely articulate the reasons you don't want to carry an automatic weapon with you to class in addition to your casebook, notebook, powerpoint notes, flash drive, keys, and class attendance list. 

RR

December 19, 2012 in Current Affairs, First Amendment, Second Amendment, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 18, 2012

Sixth Circuit: No First Amendment Right for University Employee's Op-Ed

In its opinion yesterday in Dixon v. University of Toledo, the Sixth Circuit addressed what it labeled a "narrow inquiry," articulating the issue as "whether the speech of a high-level Human Resources official who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing" is protected speech under the First Amendment.

The panel held that it was not.

Dixon was the "interim Associate Vice President for Human Resources at the University of Toledo"  when she wrote and published what the Sixth Circuit opinion describes as "an op-ed column in the Toledo Free Press rebuking comparisons drawn between the civil-rights and gay-rights movements."  Crystal Dixon's op-ed, Gay rights and wrongs: another perspective, published in the Toledo Free Press in 2008 (available here), did not identify her position although it did address some university policies.  It also approvingly discussed the ex-gay movement, quoted Biblical passages, and provided comparative economic data for gay men and lesbians - - - none of which the Sixth Circuit mentioned, but probably contributed to the University's decision to terminate her due to the "public position" she took that "in direct contradiction to University policies and procedures as well as the Core Values of the Strategic Plan which is mission critical."

479px-The_University_of_Toledo.svgThe Sixth Circuit affirmed the district judge's grant of summary judgment to the university. 

There was no question that the speech was on a matter of public concern, but a question whether her speech was protected under the Pickering balancing test, Pickering v. Bd. of Educ., 391 U.S. 563 (1968).  The Sixth Circuit precedent included a presumption that “where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law.”

In its relatively brief opinion, the Sixth Circuit panel had little difficulty agreeing with the district judge that Dixon had substantial discretionary authority in her position and that her public statements conflicted with the university position's to extend civil rights protections to LGBT students and employees.

Dixon also raised an equal protection argument that other employees who made pro-LGBT statements and in one case attributing anti-LGBT sentiments to "religious bigotry" were not similarly terminated.  The court held that Dixon did not demonstrate that these employees were "similarly situated."

Indeed, it seems that the case turns on Dixon's highly placed position in Human Resources.

RR

December 18, 2012 in Equal Protection, First Amendment, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Complaint Against NYPD Alleging Right to Record Police Officers

The First Amendment right to record public police interactions with "smartphones" is the basis of a complaint filed yesterday in Charles v. City of New York.  The facts as alleged by plaintiff Hadiyah Charles are not dissimilar to those in Glik v. Cunniffe in which the First Circuit in 2011 found a First and Fourth Amendment violation and denied qualified immunity to the officers involved. (Compare the Seventh Circuit decision earlier this year).

NYCLUappThe recitation of facts in Charles' complaint link her actions to the controversial "stop and frisk" policy of the NYPD that she sought to record.  Her allegations also include failure to train law enforcement officers to abide by the department's Patrol Guide as well as the First Amendment.  Ms. Charles was arrested, held for some time, her phone searched, released with a charge of disorderly conduct that was ultimately dismissed.  The complaint also contains allegations that police officers derided Ms. Charles for being a "street lawyer." Ms. Charles is not an attorney, but an HIV activist who has been recognized as a "Champion of Change" by the White House.

A report in Gothamist has more details. 

And for those who plan on replicating Ms. Charles' activities, NYCLU has an "app" for that: “Stop and Frisk Watch” includes the ability to record, provide information, and transmit it to the NYCLU. 

RR
[image: screenshot from NYCLU video via].

December 18, 2012 in Criminal Procedure, First Amendment, Fourth Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, December 16, 2012

Justice Ginsburg Keeps NDAA's Indefinite Detention in Place Pending Appeal

Justice Ginsburg on Friday declined to reinstate a permanent injunction against the government's detention authority in the National Defense Authorization Act.  The ruling means that the NDAA's authorization for detention stays on the books pending appeal of the case, Hedges v. Obama, to the Second Circuit.

We covered the district court case and ruling here.

Recall that the plaintiffs in Hedges, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 of the NDAA violated the First Amendment.  That Section provides:

(a) In General.  Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Force of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

We covered the NDAA here.

The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons" based on their communications with certain individuals overseas.

Judge Katherine B. Forrest (SDNY) agreed and issued a permenant injunction this past September.  But the Second Circuit stayed that injunction in October and ordered expedited review.

On Friday, Justice Ginsburg denied the plaintiffs' request to vacate the Second Circuit stay.  She cited her own previous denial of an application to vacate a stay in Doe v. Gonzales, a case challenging the FBI's authority to collect electronic communications for use in anti-terrorism investigations under the PATRIOT Act.  Just like Judge Forrest here, the district court in Doe ruled that portion of the PATRIOT Act unconstitutional; and just like the Second Circuit here, the Second Circuit stayed that ruling and ordered an expedited appeal.

Thus it's a mistake to read Justice Ginsburg's denial as a ruling on the merits.  Instead, she appears to be letting the case run its course at the Second Circuit.  She said as much, writing, "Respect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition."

SDS

December 16, 2012 in Association, Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 11, 2012

Federal District Judge: North Carolina's "Choose Life" License Plate Scheme Unconstitutional

Is a specialty license plate government speech permissible under the First Amendment?  In a 21 page opinion and order in ACLU of North Carolina v. Conti, Senior United States District Judge James Fox held that North Carolina's "choose life" specialty license plate scheme was not protected government speech and therefore enjoined the issuance of such license plates.

800px-North_Carolina_1999_DXT-4752
Judge Fox described the North Carolina scheme as unique in comparison to other state statutory schemes and likewise noted that the legislature rejected offering other specialty plates that would have expressed an opposing view, such as "respect choice."

The central issue in the case, however, was whether the "choose life" specialty license plate could be described as "government speech" and thus protected under First Amendment doctrine as articulated in Rust v. Sullivan and most recently in the Court's unanimous 2009 opinion in Pleasant Grove City v. Summum.

Judge Fox rejected the state's argument that the degree of government control was "the" single factor test.  Instead, Judge Fox relied upon the Fourth Circuit's four factor test:

  • the central purpose of the program in which the speech in question occurs
  • the degree of editorial control exercised by the government and private parties
  • the identity of the literal speaker
  • whether the government or private entity bears the ultimate responsibility for the speech

Judge Fox noted that these factors were consistent with Supreme Court precedent and that the Fourth Circuit had employed them recently. 

Applying these factors, Judge Fox found that although the state exercised editorial control (despite the fact that the design and idea originated with a national organization outside the control of the state), the other factors weighed in favor of private, or hybrid private-state speech.

Judge Fox's order closed the case; it is sure to be appealed.  Meanwhile, North Carolina car owners are not relegated to the standard license plate: Judge Fox's opinion states that there are 150 types of specialty license plates available in the state.  More information is available here.

RR
[image via]

December 11, 2012 in Abortion, First Amendment, Fourteenth Amendment, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, December 9, 2012

Ninth Circuit Says Hoax Anthrax Threat Not Protected By Free Speech

The Ninth Circuit ruled last week in U.S. v. Keyser that a criminal defendant's hoax anthrax threat was not protected by the First Amendment.

Keyser, in an ill-fated and badly misguided effort to drum up support for his self-published book, Anthrax: Shock and Awe Terror, mailed hundreds of packets of powder labeled "Anthrax."  The packets actually contained sugar.  (The three mailings at issue in this case went to Congressman Radinovich's Modesto office, a McDonald's restaurant, and a Starbucks.)  Keyser was convicted on two counts of mailing threatening communications and three counts of communicating false or misleading information regarding the presence of a biological weapon.  We was sentenced to 51 months in prison.  He appealed, in part, on the argument that his conviction and sentence violated free speech.

The Ninth Circuit disagreed.  The court said that the mailings to McDonald's and Starbucks constituted unprotected true threats:

Given the broad media coverage of actual anthrax being sent through the mail in 2001, a reasonable person would understand that a recipient would perceive a packet of powder with the word "Anthrax" and a biohazard symbol printed on it as a threat.  A reasonable person would also understand that the word "sample" would not alleviate that concern--if read and processed at all, the word would likely indicate a small amount of the actual substance, rather than a prop or representation.

Op. at 12.  

The court said the mailings were also not protected as a hoax.  The court cited and distinguished Alvarez (the Stolen Valor Act case from last term), quoted its own Alvarez ruling, and said that this case involved a false statement plus harm:

False and misleading information indicating an act of terrorism is not a simple lie.  Instead, it tends to incite a tangible negative response.  Here, law enforcement and emergency workers responded to the mailings as potential acts of terror, arriving with hazardous materials units, evacuating buildings, sending the samples off to a laboratory for tests, and devoting resources to investigating the source of the mailings.  Recipients testified to being "scared to death," "petrified," "shocked and appalled," "worried," and feeling "instant concern."  . . .  Prompting law enforcement officials to devote unnecessary resources and causing citizens to fear they are victims of a potentially fatal terrorist attack is "the sort of harm . . . Congress has a legitimate right to prevent by means of restricting speech."  United States v. Alvarez, 617 F.3d 1198, 1215 (9th Cir. 2010).

Op. at 14-15.

SDS

December 9, 2012 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 4, 2012

Federal District Judge Enjoins California's Law Prohibiting Sexual Orientation Conversion Therapy

California's SB 1172, slated to become effective January 1 and prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18.  Senior District Judge William Shubb, in an opinion issued late yesterday in Welch v. Brown, has issued a temporary injunction of the statute. 

494px-Flag-map_of_California.svgConsidering the claims of two therapists and one potential therapist who had undergone SOCE as an adult, Judge Shubb first held that the plaintiffs did not have third party standing to assert the claims of minors or parents.  As to the therapists, however, Judge Shubb held that their First Amendment claims were entitled to strict scrutiny which they were unlikely to survive on the merits.

In so doing, Judge Shubb rejected the argument that lesser standards under the First Amendment should apply given that the regulation was directed at a profession.  Additionally, the judge rejected the argument that the regulation was directed at conduct rather than speech, holding that because "at least some forms" of SOCE involve "talk therapy," speech was the central issue. 

Supporting the conclusion that strict scrutiny was the correct standard, Judge Shubb focused on the legislative history of SB1172: the "Legislature’s findings and declarations convey a consistent and unequivocal message that the Legislature found that SOCE is ineffective and harmful." 

Below is a video of the legislative floor statement of the bill's sponsor, Senator Ted Lieu, and the subsequent vote:

 

 

 

For Judge Shubb, because "a mental health provider’s pursuit of SOCE is guided by the provider’s or patient’s views of homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality."  Thus, Judge Shubb concluded that the statute was undoubtedly subject to strict scrutiny.

In addition to Ninth Circuit precedent, Judge Shubb relied heavily upon the Supreme Court's 2011 decision in Brown v. Entertainment Merchants Ass’n, finding unconstitutional California's violent video game sale to minors prohibition.  Quoting from Entertainment Merchants, Judge Shubb stressed that SB1172 cannot survive strict scrutiny "unless the state demonstrates an “'actual problem’ in need of solving” and “a direct causal link” between SOCE and harm to minors.  While protecting minors was a compelling state interest, Judge Shubb faulted the legislative findings:

evidence that SOCE “may” cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny.

Judge Shubb also faulted the "underinclusiveness" of the statutory scheme:

Here, SB 1172 prohibits only mental health providers from engaging in SOCE and, as defendants have pointed out, unlicensed individuals who do not qualify as “mental health providers” under the bill can engage in SOCE. If SOCE is harmful and ineffective, the harm minors will endure at the hands of unlicensed individuals performing SOCE is equal, if not greater,than the harm they would endure from mental health providers performing SOCE. In fact, the California Legislature has previously “recognized the actual and potential consumer harm that can result from the unlicensed, unqualified or incompetent practice of psychology.”  [citation omitted] The limited scope of SB 1172 therefore suggests that it is likely underinclusive in its application only to mental health providers.

Given Judge Shubb's reasoning, it is likely that he will issue a permanent injunction and equally likely that the decision will be appealed to the Ninth Circuit.

RR
[image via; video via]

UPDATE here

December 4, 2012 in Family, First Amendment, Opinion Analysis, Sexual Orientation, Speech, Standing | Permalink | Comments (1) | TrackBack (0)

Daily Read: Corporate Free Speech

Bezanson_randy_sqIn their article, Commercial Expression and Business Regulation in the Shadow of Citizens United and Sorrell, available in draft on ssrn, authors ConLawProf Randy Bezanson (pictured), William O'Hare, and Robert Miller ask "whether the system and market- based flexibility accorded government in its regulatory action will continue to be respected." 

In interrogating this question, one of their three case studies of regulation is off-label drug marketing, the subject of yesterday's divided Second Circuit opinion reversing a criminal conviction on the basis of the First Amendment, and an application of Sorrell v. IMS Health, Inc.  In their consideration of off-label drug advertising more generally, they write:

the apparent overbreadth of specific applications of a regulation will seem obviously unconstitutional without a perspective that recognizes a speech restriction as part of a broader system of similar speech regulations that, added together, protect the systematic and market justifications of government action. It may be obvious that sophisticated consumers of off-label drug treatments, or sophisticated investors in the new issue market for stock, don’t need the information or the waiting periods or the other regulatory steps that government may impose. But if those steps do help the market system by assuring equal and complete consumer information, even if at some inconvenience to a sophisticated few, there is justification for the looser scrutiny that the Supreme Court has historically accorded regulation of commercial speech.

Worth a read for anyone teaching or writing in the commercial speech area.

RR

December 4, 2012 in Current Affairs, First Amendment, Profiles in Con Law Teaching, Recent Cases, Scholarship, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, December 3, 2012

Second Circuit On First Amendment Right to Promote Drug for Off-Label Use Without Criminal Consequences

In a sharply divided and long overdue opinion in United States v. Caronia issued today, a panel of the Second Circuit reversed a conviction relying primarily on the Supreme Court's 2011 decision in Sorrell v. IMS Health, Inc.

The conviction, according to the jury verdict, was for "Conspiracy to introduce a misbranded drug into interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2)."  However, Judge Denny Chin, writing for the majority, emphasized that Caronia's statements - - - promoting the off-label use of the drug while he was as a pharmaceutical marketer - - - were the basis of the conviction: "Caronia was, in fact, prosecuted and convicted for promoting Xyrem off-label."  Thus, because the majority rejected the government's argument that the statements were (merely) evidence of intent, the conviction raised a First Amendment issue.  The panel then extensively discussed Sorrell, beginning with an explication of its two-step analysis:

First, the Court considered whether the government regulation restricting speech was content- and speaker-based. The Court held that it was; the regulation was therefore subject to heightened scrutiny and was "presumptively invalid."  Second, the Court considered whether the government had shown that the restriction on speech was consistent with the First Amendment under the applicable level of heightened scrutiny. The Court did not decide the level of heightened scrutiny to be applied, that is, strict, intermediate, or some other form of heightened scrutiny.

[citations omitted].  The panel concluded "that the government's construction of the FDCA's misbranding provisions imposes content- and speaker-based restrictions on speech subject to heightened scrutiny," and then that "the government cannot justify a criminal prohibition of off-label promotion even under Central Hudson's less rigorous intermediate test."  The majority seems especially troubled that the crime, at least as the court has constructed it,  is "speaker-based because it targets one kind of speaker -- pharmaceutical manufacturers -- while allowing others to speak without restriction." 

In a vigorous dissent, Judge Debra Ann Livingston stressed that speech acts are often evidence of intent and that "the majority calls into question the very foundations of our century-old system of drug regulation."  She provides a literary analogy to refute Caronia's argument that he "merely discussed “a perfectly lawful practice: the use of a lawful drug, Xyrem, for off-label purposes.” 

But the fact that a physician or a patient could legally use Xyrem for an off-label purpose is not enough to make out Caronia’s First Amendment claim. There might be no law forbidding the consumption of arsenic. But this would not endow Abby and Martha with a First Amendment right to offer arsenic-laced wine to lonely old bachelors with the intent that they drink it. See Arsenic and Old Lace (Warner Bros. Pictures 1944). And any statements Abby or Martha made suggesting their intent—even if all of the statements were truthful and not misleading—would not be barred from evidence by the First Amendment simply because arsenic might legally be consumed.

 

 

 

While Judge Chin's opinion could - - - taken to its logical conclusion - - - have a dramatic effect, it seems limited to the pharmaceutical arena.

RR

 

December 3, 2012 in First Amendment, Interpretation, Medical Decisions, Opinion Analysis, Recent Cases, Speech, Supreme Court (US) | Permalink | Comments (3) | TrackBack (0)

Thursday, November 29, 2012

Maine Governor May Remove Mural Without Violating Free Speech

The First Circuit ruled in Newton v. LePage that the Maine governor did not violate free speech by removing and relocating a mural from the state Department of Labor offices that he said was pro-labor.

Governor LePage ordered the mural's removal from the waiting room at the Maine DOL offices because he said he wanted the state to convey neutrality as between labor and employers.  He said the mural, commissioned by the state and paid for by state and federal funds, didn't cut it.  Five Maine residents sued, arguing that the removal amounted to viewpoint discrimination in violation of the First Amendment.

Maine Mural 1

The First Circuit disagreed.  It said that government has wide latitude in determining what art to display, or not to display, especially in a non-public forum (like a government office waiting room), and that it has a sufficient justification in appearing neutral.  Moreover, the court noted that the government didn't propose to remove the mural entirely; instead, it will relocate it to an alternative location.

Maine Mural 2

The court said that this case was easier for the government than Pleasant Grove City v. Summum:

Here, unlike Summum, the issue does not involve a public park, nor does it involve the government's decision whether or not to accept a private donation.  It is also clear that no Equal Protection or Establishment Clause concerns are raised by the case.  This case does not involve the suppression of private speech.

The government reiterated its commitment to relocate the mural at oral argument.  After all, it said, this is now the most famous piece of art in Maine.

SDS

November 29, 2012 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

D.C. Signs Regulation Violates Free Speech

Chief Judge Royce C. Lamberth (D.D.C.) ruled today in Act Now to Stop War and End Racism Coalition v. D.C. that the District of Columbia's regulation governing the posting of signs on city lampposts violated the First Amendment on its face.  Judge Lamberth granted summary judgment to the plaintiffs and thus ended this latest chapter in this long-running dispute over D.C. signs.  But the ruling also invites the city to come back with a new sign regulation, maybe leading to the next chapter in this case.

The regulation--after five years of litigation and four changes--now reads,

108.5  A sign, advertisement, or poster shall be affixed for no more than one hundred eighty (180) days.

108.6  A sign, advertisement, or poster related to a specific event shall be removed no later than thirty (30) days following the event to which it is related.  This subsection is not intended to extend the durational restriction in subsection 108.5.

108.11 Within twenty-four hours of posting each sign, advertisement, or poster, two (2) copies of the material shall be filed with an agent of the District of Columbia so designated by the Mayor.  The filing shall include the name, address, and telephone number of the originator of the sign, advertisement, or poster, and if the sign is for an event, the date of the event.

108.13  For purposes of this section, the term "event" refers to an occurrence, happening, activity or series of activities, specific to an identifiable time and place, if referenced on the poster itself or reasonably determined from all circumstances by the inspector.

The court ruled that city lampposts were a designated public forum and that the reg created a content-based distinction (between signs for events and all other signs).  But the court said that the city failed to provide a content-neutral justification for the distinction.  It wasn't enough, the court said, that the city's attorney represented that the reg was designed to reduce litter and enhance aesthetics.  The city had to produce more (like some actual proof of the city's actual purpose).

The court also said that the reg was unconstitutionally vague.  Judge Lamberth ruled that 108.13 allowed an inspector to determine which signs qualified as "event" signs without sufficient criteria or guidance.

This is only the latest ruling in this long-running dispute and may lead to more reg changes and more litigation, especially if the District insists on its distinction between signs for events and all other signs.

SDS

November 29, 2012 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 28, 2012

Seventh Circuit Says No First Amendment Violation in Non-Confirmation for Political Support

The Seventh Circuit ruled this week in Embry v. City of Calumet that city aldermen did not violate free speech when they vowed not to ratify the mayor's nominee to be city department commissioner based on the nominee's support of the mayor in the prior election. 

The case arose when Embry, the Commissioner for the Department of Streets and Alleys in Calumet City, a position appointed by the mayor, supported the mayor and a group of aldermen running as a team in the city's election.  The aldermen defected from the team of candidates, however, and pressured Embry to support a rival candidate for another alderman slot.  After Embry declined, the aldermen said they'd oppose ratification of Embry's appointment as Commissioner of a new, consolidated city department (that included Embry's old Department of Streets and Alleys).  The mayor then nominated someone else, the council approved, and Embry lost the job.

Embry sued the aldermen, arguing that their opposition to his appointment violated free speech.  He claimed that his case was governed by the public-employee speech rule in Connick v. Myers and Pickering v. Board of Education.

The Seventh Circuit disagreed.  The court ruled that Embry's position was a policy-making position, subject to the Elrod-Branti rule that says that for policy-making jobs the "government employer's need for political allegiance . . . outweighs the employee's freedom of expression[.]"  Op. at 4 (quoting Bonds v. Milwaukee Cnty., 207 F.3d 969 (7th Cir. 2000).  In other words: political appointees can be removed for political reasons.

Moreover, the court said that Embry failed to allege any particular speech unconnected to political affiliation or policy views that led to his non-confirmation.  Embry only alleged that he publicly supported the team, and that he was fired "based on [his] political allegiance to [the mayor]." 

The ruling is consistent with rulings in other circuits and likely ends this case.

SDS

November 28, 2012 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, November 26, 2012

Court Reignites Health Care Reform Challenge

The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit.  The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.

Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim.  The Supreme Court declined to review that case, Liberty University v. Geithner.  But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.

The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others).  (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.) 

The district court ruled against the plaintiffs on all counts and dismissed the case.  The Fourth Circuit dismissed the case under the AIA and didn't reach the merits. 

The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause.  Thus after NFIB these issues appear to remain open on remand:

  • Whether the mandates violate the Religion Clauses or the RFRA;
  • Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
  • Whether the mandates violate equal protection;
  • Whether the mandate violates free speech and associational rights.

As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).

As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.

If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.

But then again, that's what many of us said about NFIB.

SDS

November 26, 2012 in Abortion, Association, Cases and Case Materials, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Religion, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, November 22, 2012

Thanksgiving 2012

The relationship between Thanksgiving and the First Amendment's religion clauses, as well as to the economy, is a recurrent topic of constitutional conversation at this time of year.

President Obama's Thanksgiving Proclamation for 2012 includes several references to "God," such as:

"On Thanksgiving Day, individuals from all walks of life come together to celebrate this most American tradition, grateful for the blessings of family, community, and country. Let us spend this day by lifting up those we love, mindful of the grace bestowed upon us by God and by all who have made our lives richer with their presence."

The President has been criticized in the past for not including sufficient mentions of "God" in conjunction with Thanksgiving.

Thanksgiving_1900
Obama's 2012 Proclamation repeats earlier invocations of two presidents, stating this year:

When President George Washington marked our democracy's first Thanksgiving, he prayed to our Creator for peace, union, and plenty through the trials that would surely come. And when our Nation was torn by bitterness and civil war, President Abraham Lincoln reminded us that we were, at heart, one Nation, sharing a bond as Americans that could bend but would not break.

The current President does not mention FDR, the president responsible for Thanksgiving being the second to last Thursday - - - rather than the last - - - for economic reasons.  According to the National Archives:

In 1939, however, the last Thursday in November fell on the last day of the month. Concerned that the shortened Christmas shopping season might dampen the economic recovery, President Franklin D. Roosevelt issued a Presidential Proclamation moving Thanksgiving to the second to last Thursday of November. As a result of the proclamation, 32 states issued similar proclamations while 16 states refused to accept the change and proclaimed Thanksgiving to be the last Thursday in November. For two years two days were celebrated as Thanksgiving - the President and part of the nation celebrated it on the second to last Thursday in November, while the rest of the country celebrated it the following week.

Meanwhile, there is controversy about so-called "blue laws" banning the opening of stores on Thanksgiving day itself.  Recall that the United States Supreme Court, in an opinion by Chief Justice Earl Warren, rejected the First Amendment challenges and upheld a criminal conviction under a Sunday blue law in McGowan v. Maryland, 366 U.S. 420 (1961). 

RR
[image via]

November 22, 2012 in Current Affairs, First Amendment, History, Religion | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 20, 2012

District Judge to Hobby Lobby: No Substantial Burden on Religious Beliefs re: ACA Contraception Compliance

404px-Hobbies_Magazine_J._E._Standley_coverThe contraception provision requirement of the ACA continues to foment litigation.  However, unlike last week's decision by a federal district judge granting the preliminary injunction in favor of Tyndale House Publishers, a small Christian publishing house, yesterday a federal district judge denied a preliminary injunction sought by Hobby Lobby, a privately held corporation operating 514 arts and crafts stores in 41 states regarding the so-called "morning after"  or "Plan B" contraceptive pill.

In a 28 page opinion, Judge Joe Heaton of the Western District of Oklahoma, denied Hobby Lobby's claims, as well as the claims by Mardel, a Christian supply and bookstore chain; both corporations are owned by the Green family through a management trust.  Interestingly, much of the judge's analysis revolves around the identity of the plaintiffs as it relates to whether their First Amendment and RFRA are being violated.  

Denying the preliminary injunction, Judge Heaton concluded:

Plaintiffs have not demonstrated a probability of success on their First Amendment claims. Hobby Lobby and Mardel, secular, for- profit corporations, do not have free exercise rights. The Greens do have such rights, but are unlikely to prevail as to their constitutional claims because the preventive care coverage regulations they challenge are neutral laws of general applicability which are rationally related to a legitimate governmental objective.

Plaintiffs also have failed to demonstrate a probability of success on their Religious Freedom Restoration Act claims. Hobby Lobby and Mardel are not “persons” for purposes of the RFRA and the Greens have not established that compliance with the preventive care coverage regulations would “substantially burden” their religious exercise, as the term “substantially burdened” is used in the statute. Therefore, plaintiffs have not met their prima facie burden under RFRA and have not demonstrated a probability of success as to their RFRA claims.

The applicability of free exercise rights and RFRA rights to corporations is resoundingly rejected by Judge Heaton.  His analysis as to the persons involved does, in part, depend upon their attentuated relationship to the entities subjected to the ACA requirements.

RR
[image via]

November 20, 2012 in Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Privacy, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Daily Read: Reporting the MSK Trial at Guantanamo

In an excerpt published in Slate this morning, from his e-book, Camp Justice, journalist Mattathias Schwartz writes compellingly of covering the ongoing trial United States v. Khalid Sheikh Mohammed, et al.  We most recently discussed Khalid Sheikh Mohammed (KSM), the so-called "mastermind" of 9-11 and the onlgoing legal proceedings, when KSM was arraigned.  

Camp JusticeRecall that whether or not KSM would have a trial - - - and where - - - were hotly contested matters.  Now, Schwartz states that although the KSM trial at Guantanamo is an “open” and “public” proceeding [his quotes], accepting the Pentagon’s “invitation” to cover the proceedings, meant signing the 13-page Media Ground Rules document:

Among other things, I agreed not to disclose any Protected Information. The definition of Protected Information makes ample use of the word includes and sets no upper limit on what Protected Information might be.

The geographical restraints also limit reportial opportunities:

For the most part, News Media Representatives are confined to a few acres of Guantánamo, an area known as Camp Justice. Cut off from the town and the detention camps, Camp Justice is carved up into a jigsaw of designated zones by every conceivable type of wall: interlocking traffic barriers, chest-high, made of orange plastic; chains hanging between yellow stanchions; retractable fabric bands stretched airport-style between flimsier black stanchions; chain-link fences veiled in black tarps and topped with spools of concertina wire; chain-link blocks wrapped in green tarps and filled with rubble; “no photography” signs; “restricted area” signs; gates that swing on hinges; gates that pop up from the ground.

And then there is the trial itself, with the imposition of a 40 second sound delay.

This first hand journalistic account provides a useful context for any constitutional analysis of a "public trial," as well as for the ongoing discussions of national security and constitutionalism.

RR

November 20, 2012 in Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Habeas Corpus, War Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, November 18, 2012

Court Grants Temporary Injunction Against ACA Contraception Requirement

Judge Reggie Walton (D.D.C.) on Friday granted plaintiffs a temporary injunction in Tyndale House Publishers, Inc. v. Sebelius stopping the Secretary from enforcing HHS regs under the Affordable Care Act that require health insurance plans to provide contraception coverage against a self-insured Christian publishing house.  Judge Walton wrote that the plaintiffs were likely to succeed on their Religious Freedom Restoration Act claim and that they met other requirements for a temporary injunction.  The ruling, should it stand, paves the way for self-insured plaintiff-corporations to challenge the contraception requirement under the RFRA.

Tyndale House Publishers is a small Christian publishing house that operates under a Christian "statement of belief and policy" outlining its religious beliefs.  It doesn't offer its employees an outside health insurance plan; instead, it's self-insured and thus pays directly for its employees' health benefits.  Mark Taylor, the other named plaintiff, is Tyndale's president and CEO.

The plaintiffs balked at HHS regs, enacted under the ACA, that, with certain exemptions for religious organizations, require employers to provide contraception as part of their employee health insurance plans.  Importantly, they complained only about "drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo."  They filed suit, arguing that the regs violated the RFRA; the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment; the Fifth Amendment Due Process Clause; and the Administrative Procedures Act. 

The RFRA forbids the government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the government can "demonstrate[] that application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest."  42 U.S.C. Sec. 2000bb-1(a), (b).

Judge Walton first concluded that the plaintiffs had standing.  He wrote that Tyndale had standing under EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), which held that a corporation has standing to assert the free exercise rights of its owners.  Alternatively, Tyndale had third-party standing to assert its primary owner's free exercise rights.

As to the substance, Judge Walton wrote that Tyndale showed a "substantial burden," because

the contraceptive coverage mandate similarly places the plaintiffs in the untenable position of choosing either to violate their religious beliefs by providing coverage of the contraceptives at issue or to subject their business to the continual risk of the imposition of enormous penalties for its noncompliance.

Op. at 22.  Judge Walton distinguished O'Brien v. HHS (E.D. Mo. 2012) (holding that the plaintiff did not suffer a substantial burden, because it provided employee health insurance through a group plan), because here the self-insured plaintiff, Tyndale, would pay directly for its employees' contraception (and not indirectly, through a group plan).  Judge Walton explained:

The court dismissed the plaintiffs' RFRA claim [in O'Brien], holding that the plaintiffs had failed to show that the contraceptive coverage mandate substantially burdened their religious exercise.  Describing the burden at issue as the "funds, which plaintiffs will contribute to a group health plan, [that] might, after a series of independent decisions by health care providers and patients covered by [the company's] plan, subsidize someone else's participation in an activity that is condemned by plaintiffs' religion," the court reasoned that the burden on the plaintiffs' religious exercise was simply too attenuated to qualify as "substantial." . . . 

Here, the plaintiffs provide direct coverage to Tyndale employees through a self-insured plan in which "Tyndale acts as its own insurer."  This difference in the manner in which coverage is provided is significant because while the company in O'Brien contributes to a health insurance plan which ultimately pays for the services used by the plan participants, Tyndale itself directly pays for the health care services used by its plan participants, thereby removing one of the "degrees" of separation that the court deemed relevant in O'Brien.

Op. at 23-24.

Judge Walton also concluded that the government's compelling interests in promoting public health and providing employed women with access to health care on par with employed men wouldn't be undermined by exempting Tyndale (and therefore weren't necessary here), because the government already exempts a number of other employers.  He noted that Tyndale objected only to certain kinds of contraception--Plan B, ella, and intrauterine devices--and provided some other contraceptive coverage through its health plan, and that requiring Tyndale to provide the full range of contraceptives wasn't necessary to achieve public health and equality between female and male employees.

SDS

November 18, 2012 in Cases and Case Materials, First Amendment, Free Exercise Clause, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)