Monday, August 11, 2014
Here's the call for what looks like an important conference:
Call for Papers
The staff of the Lincoln Memorial University Law Review invites submissions related to its Spring 2015 Symposium entitled “The Snowden Effect: The Impact of Spilling National Secrets.” The Symposium will be held on Friday, January 30, 2015 at the LMU-Duncan School of Law in downtown Knoxville, Tennessee.
The LMU Law Review’s goal for the Symposium is to facilitate discussion among scholars and practitioners regarding the implications of the national security disclosures by former government contractor Edward Snowden. Topics will include, but not necessarily be limited to: the protection of government sources and methods; Fourth Amendment and privacy issues; the effect of the Snowden disclosures and other such security leaks on U.S. foreign policy, particularly or relationships with our allies; surveillance state concerns; and the classification of government material.
The LMU Law Review will publish a dedicated symposium issue related to the Symposium’s theme. The Law Review welcomes submissions for this specially-themed issue, which will be comprised of several articles, notes, and essays bringing together leading experts on the theory, application, and scholarly analysis of these contemporary national security issues.
To be considered for publication in the symposium issue, please submit by October 15, 2014: (1) an abstract or a draft article; and (2) a curriculum vitae (CV). Participation in the Symposium is not a requirement for publication in the symposium issue. All materials should be submitted through the LMU Law Review’s website.
For more information contact the Editor in Chief of the law review at jacob.baggett (AT)lmunet.edu.
Thursday, August 7, 2014
Eleventh Circuit: No Preliminary Injunction for Ordinance Aimed at Curbing Loud Sounds Outside Abortion Clinics
In its opinion in Pine v. City of West Palm Beach, a unanimous Eleventh Circuit panel affirmed the district judge's refusal to enjoin the enforcement of § 34-38 of the Code of the City of West Palm Beach which bans amplified sound within 100 feet of the property line of any health care facility.
The court held that the Sound Ordinance survived the First Amendment challenge as a valid time, place, or manner restriction on speech that is content-neutral, is narrowly tailored to advance the City’s substantial interest in protecting patients, and leaves open ample alternative avenues of communication, and further that it was not unconstitutional as applied to the abortion protesters.
The court relied upon Ward v. Rock Against Racism, which upheld a sound amplification regulation. It distinguished the Court's recent declaration of unconstitutionality of an abortion clinic buffer zone in McCullen v. Coakley:
This case raises issues sharply different from those addressed recently by the Supreme Court in McCullen. There, the Supreme Court struck down a Massachusetts law that prohibited activists from standing within thirty-five feet of the driveway or entrance of a reproductive health care facility. For a number of reasons, the Court held that the restriction was not narrowly tailored to the government’s interest in preventing obstructions and congestion outside of abortion clinics. The Court explained that the Massachusetts law “unnecessarily swe[pt] in innocent individuals and their speech” by “categorically exclud[ing] non-exempt individuals from the buffer zones.” Notably, Massachusetts had failed to pursue a variety of available, less-restrictive solutions for congestion problems. Finally, the law barred access to public sidewalks and ways, “areas historically open for speech and debate.” Massachusetts had taken “the extreme step of closing a substantial portion of a traditional public forum to all speakers.”
These considerations cut the other way in this case. Instead of casting a wide net that captures innocent speech, the Sound Ordinance targets only actions near health care facilities that produce types of noise that can endanger patients. In addition, here there are no less restrictive means: because the heart of the problem is loud, raucous, or disturbing noise, a restriction on that sound is narrowly tailored. Unlike in McCullen, the record here contains no evidence of feasible alternatives that protect patient health from such sound. Finally, the Sound Ordinance in no way prevents Petitioners from accessing public ways and sidewalks near the Center. They simply cannot create loud, raucous, or unreasonably disturbing noise while there.
[citations omitted]. The court had made clear that "the City’s noise control regulations indicate that the Sound Ordinance restriction on amplified sound applies only to 'loud and raucous noise, or any noise which unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety' of others within a health care facility quiet zone." The court stated it the Sound Ordinance was not intended to have the "absurd" result that would prohibit "any electronic equipment that uses or produces amplified sound, from paging systems to administrators’ telephones to patient monitoring devices."
Thus construed, the court found that the Ordinance was not being enforced based on viewpoint when it was not enforced against "drive-through loudspeakers within the quiet zone by quick-service restaurants Wendy’s and Pollo Tropical." Instead, the protestors use of bullhorns was directly within the "loud and raucous noise" prohibition.
The court ended by emphasizing that the opinion was limited to the "extraordinary" remedy of a preliminary injunction and they plaintiffs were free to pursue a permanent injunction. But given that the court found that the plaintiffs did not demonstrate they had a likelihood of success on the First Amendment merits, the prospects for prevailing on those same First Amendment arguments are slight.
In a closely watched case with First Amendment implications, the New Jersey Supreme Court in State v. Skinner held in an unanimous opinion that violent rap lyrics, written by a defendant before the events that led to his indictment, may not be admitted at his criminal trial as evidence of motive and intent.
The court's opinion takes the opportunity to explicitly outline the First Amendment issue:
The New Jersey Chapter of the American Civil Liberties Union (ACLU) appears in this case as amicus curiae on behalf of defendant. The ACLU asserts that defendant’s rap lyrics are a form of artistic expression and thus are entitled to heightened protection under the First Amendment of the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution. The ACLU emphasizes that defendant’s lyrics are not akin to a diary and therefore contain limited probative value. Moreover, because rap lyrics are often a vehicle for social and political commentary, the ALCU argues that admitting defendant’s lyrics would run the risk of chilling otherwise valuable speech. Accordingly, the ACLU urges the establishment of a strict guideline against the admissibility of expressive works in a criminal trial, in light of the First Amendment protections ordinarily afforded to such works. It urges that their admissibility should be limited to situations clearly indicating that the author engaged in the crimes about which he or she has written. In the ACLU’s view, to hold otherwise would unduly discourage, or even punish, lawful expression.
[Update: The ACLU brief is available here].
However, the remainder of the opinion does not explicitly engage with the First Amendment or free speech doctrine. Nevertheless, the court's ruling is infused with free speech perspectives. After articulating its holding under the NJ rules of evidence that "violent, profane, and disturbing rap lyrics that defendant wrote constituted highly prejudicial evidence against him that bore little or no probative value on any motive or intent behind the attempted murder offense with which he was charged," the court notes that the "use of the inflammatory contents of a person’s form of artistic self-expression as proof of the writer’s character, motive, or intent must be approached with caution."
The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.
Again, while the rationale is firmly embedded in the evidentiary rules, the First Amendment perspectives are evident.
[image: Bob Marley via]
Wednesday, August 6, 2014
The D.C. Circuit ruled yesterday in Stop This Insanity, Inc., Employee Leadership Fund v. FEC that the federal restrictions on corporate PACs do not violate the First Amendment. But in the wake of Citizens United, which held that corporations didn't have to establish separate PACs to engage in political speech in the first place, the ruling probably won't much matter.
The case arose when Stop This Insanity, Inc., or "STII," a corporation, sought to establish a separate PAC to solicit and spend funds on political speech. But when STII realized that its PAC would be subject to federal regulations--in particular, restrictions on whom and when the PAC could solicit--it filed suit, arguing that the restrictions violated the First Amendment. On the other hand, STII did not complain (obviously) about the benefit its PAC received under federal regulations, that it did not have to disclose its fundraising expenses. The court summed up its claim:
Simply put, Stop This Insanity would like to use its segregated fund [its PAC] to solicit the entire public while concealing its expenses for such solicitation.
STII argued that Citizens United compelled this result. In particular, STII said that Citizens United prohibits restrictions based on distinctions between different organizational entities, and the regulations single out corporate PACs for restrictions on solicitation. STII claimed that the restrictions were therefore subject to the highest scrutiny, and failed.
The court disagreed. It said that the solicitation restrictions did not prevent a PAC from speaking (the way a corporation was prevented from speaking before Citizens United); instead, they simply regulated the speech in the nature of a disclosure. Moreover, the court noted that after Citizens United corporate PACs are functionally obsolete: they remain on the books, but they serve no particular purpose, because corporations can now spend on their own. Given that reality, restrictions on corporate PACs (which a corporation, like STII, voluntarily established) don't unduly restrict a corporation's speech, because the corporation itself can speak (with restrictions that "are less burdensome" than those on a corporate PAC). As the court said,
Despite the availability of a more robust option--at least, when it comes to independent expenditures--[STII] has decided to do things the hard way. And now, trapped in a snare it has fashioned for itself, STII decries its inability to use the [PAC] in the way it sees fit--without the limits Congress attached to the operation of these funds.
The ruling means that federal solicitation restrictions on corporate PACs stay on the books, at least unless and until the case is appealed.
But in practical terms the ruling probably won't mean much. That's because a corporation that wants to solicit and spend money for political speech today probably would opt for the more "robust option"--simply solicit and spend the money itself, the "less burdensome" way to do it--and not "do things the hard way" by establishing a corporate PAC. In other words, while corporate PACs and the restrictions on them stay on the books, it seems doubtful that any corporation today would use them for its political speech.
Friday, August 1, 2014
Affirming the opinion of United States District Judge Deborah Batts, the Second Circuit's opinion in American Atheists v. Port of Authority of NY and NJ held that there is no Establishment Clause violation when the National Museum at the former World Trade Center towers destroyed on September 11, often colloquially known as the "Ground Zero" Museum or the September 11 Museum, chose to display a large Latin cross.
Importantly, the cross is placed in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” as part of the September 11 historical narrative. On appeal, the American Atheists seemingly narrowed the original challenge and argued that the defendants "impermissibly promote Christianity in violation of the Establishment Clause and deny atheists equal protection of the laws by displaying The Cross at Ground Zero in the Museum unaccompanied by some item acknowledging that atheists were among the victims and rescuers on September 11."
The unanimous panel's 42 page opinion applies Lemon v. Kurtzman to the Establishment Clause issue and much more briefly considers the equal protection argument.
Here's the court's summary of its conclusion:
1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:
a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;
b. an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and
c. there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.
2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.
It would be doubtful if this case goes any further; the cross at the museum looks as if it is there to stay.
Tuesday, July 29, 2014
In a 71 page opinion with two dissenting opinions for two judges, the District of Columbia Circuit en banc clarified the First Amendment standard for labeling requirements in American Meat Institute v. U.S. Department of Agriculture.
Recall that the COOL - - - country of origin label - - - as applied to meat was explained by the DC Circuit as newly requiring the "production step," so that
instead of saying, “Product of the United States,” a label for Category A meat will now read, “Born, Raised, and Slaughtered in the United States.” Similarly, Category B meat might now have to be labeled, “Born in X, Raised and Slaughtered in the United States,” and Category C meat “Born and Raised in X, Slaughtered in the United States.”
The basic issue is a choice of precedent one: Should the consumer disclosure principle of Zauderer v. Office of Disciplinary Counsel (1985) control or should the more rigorous ordinary commercial speech test of Central Hudson govern?
The panel's relatively brief opinion chose Zauderer and upheld the rule against the meat industry's First Amendment challenge, but the DC Circuit rather quickly vacated the opinion and granted en banc review. The panel itself noted that other panel opinions might be read to the contrary and suggested the "full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information."
The en banc opinion now holds "that Zauderer in fact does reach beyond problems of deception, sufficiently to encompass the disclosure mandates at issue here." In so doing, it explicitly overruled R.J. Reynolds Tobacco Co. v. Food & Drug Admin decided in 2012.
As the DC Circuit reasoned,
Zauderer itself does not give a clear answer. Some of its language suggests possible confinement to correcting deception. Having already described the disclosure mandated there as limited to “purely factual and uncontroversial information about the terms under which [the transaction was proposed],” the Court said, “we hold that an advertiser's rights are adequately protected as long as [such] disclosure requirements are reasonably related to the State's interest in preventing deception of consumers.” (It made no finding that the advertiser's message was “more likely to deceive the public than to inform it,” which would constitutionally subject the message to an outright ban. See Central Hudson. *** The language with which Zauderer justified its approach, however, sweeps far more broadly than the interest in remedying deception. After recounting the elements of Central Hudson,Zauderer rejected that test as unnecessary in light of the “material differences between disclosure requirements and outright prohibitions on speech.” Later in the opinion, the Court observed that “the First Amendment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed.” After noting that the disclosure took the form of “purely factual and uncontroversial information about the terms under which [the] services will be available,” the Court characterized the speaker's interest as “minimal”: “Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal.” All told, Zauderer 's characterization of the speaker's interest in opposing forced disclosure of such information as “minimal” seems inherently applicable beyond the problem of deception, as other circuits have found.
Thus, the DC Circuit has resolved an important conflict and erected an obstacle for First Amendment challenges to labeling regulations.
Wednesday, July 23, 2014
The Supreme Court yesterday vacated the Ninth Circuit ruling over the weekend that ordered the delay of a scheduled execution until the condemned prisoner received details from the state about the method of execution.
Recall that the condemned prisoner, Joseph Rudolph Wood III, argued that the state's failure to provide him information violated his First Amendment right to receive information about the method of execution. The Ninth Circuit agreed--or at least agreed that he had a likelihood of success on the merits, or that he raised a "serious question" on the merits--and granted a preliminary injunction.
The Supreme Court's order vacates that ruling. It means that the execution can go forward without the information.
The order was short and unsigned, with no real legal analysis:
The application to vacate the judgment of the United States Court of Appeals for the Ninth Circuit granting a conditional preliminary injunction, presented to Justice Kennedy and by him referred to the Court, is granted. The district judge did not abuse his discretion in denying Wood's motion for a preliminary injunction. The judgment of the United States Court of Appeals for the Ninth Circuit reversing the district court and granting a conditional preliminary injunction is vacated.
Monday, July 21, 2014
The Ninth Circuit on Saturday ordered the delay of a scheduled execution until the condemned prisoner gets information about the two-drug cocktail that Arizona plans to use. The court ruled (on a motion for a preliminary injunction) that Joseph Rudolph Wood III had a likelihood of success on the merits, or that he raised a "serious question" on the merits, that the state's denial of information violated the First Amendment.
The order comes on the heels of a ruling last week by a California federal district judge that the death penalty violates the Eighth Amendment. The court's opinion noted the recent botched executions in Oklahoma and Ohio in recognizing the need for publicity and public scrutiny of methods of execution.
The court held that Wood likely had a First Amendment right to information about the cocktail. The court said that this right derived from the First Amendment right to information about different stages the criminal process, and in particular the right to view executions in California First Amendment Coalition, a Ninth Circuit case that says that "the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber . . . ."
The court also looked to historical practice in transparency in execution methods. It said that the "evidence does not conclusively establish a historical tradition of public access to the sources of lethal injection or the qualifications of executioners," but still
such exhaustiveness is not required at the preliminary injunction stage. Instead, we ask only whether Wood raises "serious questions" going to the merits.
Answer: Yes, he does.
The ruling means that Arizona has to provide more particular information about its method of lethal injection before it can execute Wood. The ruling is a victory for transparency in executions and will likely contribute to the growing public pressure against the death penalty.
Tuesday, July 15, 2014
The D.C. Circuit ruled today that a former teacher in the D.C. schools did not enjoy protection under the First Amendment after he was fired for sending an e-mail complaining about his principal's misrepresentation of student test scores to former Chancellor Michelle Rhee.
The teacher, Bruno Mpoy, had a long list of complaints against his principal, Donald Presswood, when he sent an e-mail to Rhee. Nearly all of these involved classroom conditions. But after Mpoy was fired (and undoubtedly aware of the first part of the Garcetti test and the D.C. Circuit's interpretation of it), he focused on this sentence in the e-mail:
Dr. Presswood, the principal of Ludlow Taylor, misrepresented students' performance and results on the DCCAS Alternative [the achievement test used to measure student learning and improvement].
Mpoy argued that this sentence was not written pursuant to his official responsibilities--and that he therefore jumped the first Garcetti hurdle by showing that he spoke "as a citizen." (As a threshold matter, in order for a public employee's speech to enjoy First Amendment protection, the employee must have spoken (1) as a citizen and (2) on a matter of public concern. Only then, if a plaintiff can so show, the court goes on to apply the free speech test, whether the government "had an adequate justification for treating the employee differently from any other member of the general public.")
The D.C. Circuit disagreed. The court ruled that Mpoy wrote this sentence in his capacity as an employee:
In [the context of the e-mail], the sentence about the misrepresentation of the students' results was also plainly a greivance about Presswood's interference with Mpoy's duty to assess and ensure the achievement of his students.
That means that Mpoy didn't even get out of the gate under Garcetti. No citizen speech; no protected speech; no First Amendment protection.
The court added a section to address the recently decided Lane v. Franks. In that case, the Supreme Court held that the First Amendment "protects a public employee who provided truthful sworn testimony, compelled by subpoena," when testifying was outside the scope of the employee's "ordinary job responsibilities." The court considered the possibility that the adjective "ordinary" signalled a narrowing of the area of employee speech left unprotected by Garcetti.
But the court said that it didn't have to decide that; it ultimately didn't matter. That's because the school officials could reasonably believe that they could have fired Mpoy--and therefore enjoyed qualified immunity.
Monday, July 14, 2014
The Second Circuit ruled last week in Holland v. Goord that prison authorities substantially burdened a Muslim prisoner's free exercise of religion when they punished him for failing to complete a urine test within a three-hour window during fasting time for Ramadan. The plaintiff couldn't complete the test because he refused to drink water during his fast. (H/t to reader Jeff Wadsworth.)
The ruling means that the case goes back to the trial court to determine whether the prison authorities had a sufficient penalogical interest in requiring the urine test (and the water drinking, in order to facilitate the test) under Turner v. Safley. But that doesn't look good for the state: the Second Circuit noted that there was no good reason why the authorities couldn't administer the test (and require the plaintiff to drink water) after sundown (indeed, the plaintiff suggested this option himself). It also noted that the prison subsequently changed its own regulations to allow a religious accommodation to urine testing.
The Second Circuit rejected the plaintiff's invitation to disregard the "substantial burden" test from Employment Division v. Smith. Instead, the court ruled that the urine test met that requirement, drawing on its own cases saying that the denial of a religious meal is a substantial burden on religion.
The court also rejected the trial court's conclusion that the urine test and water drinking were mere de minimis burdens (because the plaintiff could have made up a drink of water during the fast with one extra day of fasting). The court said that the plaintiff sufficiently showed that this would have been a "grave sin," even if he could have made up for it.
Because the state changed its rules on urine testing to allow a religious accommodation, the court denied the plaintiff's request for injunctive relief under both his free exercise claim and his RLUIPA claim. The court rejected other claims, too. But it remanded the free exercise claim for determination whether the state had a sufficient penalogical interest in conducting the urine test the way that it did, and, if not (as is likely), for money damages.
Seventh Circuit Finds Indiana's Clergy-Only Marriage Solemnization Statute Violates the First Amendment
In its 11 page opinion today in Center for Inquiry v. Marion Circuit Court Clerk, a panel of the Seventh Circuit has held Indiana Code §31-11-6-1 violates the First Amendment. The provision specifies who can solemnize a marriage and includes "religious officials designated by religious groups but omits equivalent officials of secular groups such as humanist societies." The plaintiffs, a humanist group and a leader of the group deemed a "secular celebrant," were not allowed to solemnize a marriage unless they obtained clergy credentials or "called themselves a religion."
Judge Easterbrook, writing for the unanimous panel, stated that it is unconstitutional to make distinctions between "religious and secular beliefs that hold the same place in adherents’ lives," citing the well known conscientous objector cases of Welsh and Seeger, as well as Torasco v. Watkins, and the Seventh Circuit precedent regarding accommodations for atheists in prison. There is not, Easterbrook wrote, an "ability to favor religions over non-‐‑theistic groups that have moral stances that are equivalent to theistic ones except for non-‐‑belief in God or unwillingness to call themselves religions."
As for Indiana's argument that the humanists were not actually being excluded from solemnizing marriages under the statute, the court had this to say:
Adherents to faiths with clergy can be married in two steps: first they obtain a license, Ind. Code §31-11-4-1, and then they have the marriage solemnized by a priest or equivalent person in the list in §31-11-6-1. (Plaintiffs do not challenge the licensure statute, because religion is irrelevant to that procedure.) Humanists could achieve the same result in three steps: first get a license, then have a humanist celebrant perform a public ceremony appropriate to their beliefs, and finally have a clerk of court or similar functionary solemnize the marriage. That’s true enough—but it just restates the discrimination of which plaintiffs complain. Lutherans can solemnize their marriage in public ceremonies conducted by people who share their fundamental beliefs; humanists can’t. Humanists’ ability to carry out a sham ceremony, with the real business done in a back office, does not address the injury of which plaintiffs complain.
Interestingly, the opinion also had something to say about the equal protection problems of the statutory scheme, noting that the distinctions between religions that have clergy and those that do not as well as "the state’s willingness to recognize marriages performed by hypocrites," violate the Equal Protection Clause:
It is irrational to allow humanists to solemnize marriages if, and only if, they falsely declare that they are a “religion.” It is absurd to give the Church of Satan, whose high priestess avows that her powers derive from having sex with Satan, and the Universal Life Church, which sells credentials to anyone with a credit card, a preferred position over Buddhists, who emphasize love and peace. A marriage solemnized by a self-declared hypocrite would leave a sour taste in the couple’s mouths; like many others, humanists want a ceremony that celebrates their values, not the “values” of people who will say or do whatever it takes to jump through some statutory hoop.
The court found Indiana's reliance on the Supreme Court's most recent Establishment Clause decision, Town of Greece v. Galloway inapposite, easily distinguishing Galloway as not being about the regulation of private conduct as the Indiana solemnization statute was.
The decision could pave the way for other First Amendment challenges to solemnization statutes that provide a special status for religious clergy.
Thursday, July 3, 2014
In an emergency motion for a Temporary Restraining Order filed today in Hassan v. Obama in the District Court for the District of Columbia, the petitioner relies on Monday's controversial decision by the United States Supreme Court in Burwell v. Hobby Lobby.
Petitioner, Imad Abdullah Hassan, a detainee at Guantánamo Bay, invokes the Religious Freedom Restoration Act (RFRA) to prevent the federal government from depriving him of " the right to participate in communal prayers during the Islamic holy month of Ramadan," a tenet of his religious faith.
As the motion outlines, the DC Circuit had previously held in Rasul v. Myers, 563 F.3d 527, 532-33 (D.C. Cir. 2009), that the Guantánamo Bay detainees are not protected “person[s]” within the meaning of the RFRA. The court in Rasul "bypassed the dictionary definition of “person” and instead looked to prior case law prescribing the scope of the word “person” for purposes of the Fourth and Fifth Amendments— which did not, in the Rasul court’s view, apply to nonresident aliens."
However, the motion argues this is a "dead letter" after the Court's decision in Hobby Lobby which "eviscerates the reasoning in Rasul and makes clear that Petitioner, as a flesh-and-blood human being, is among the 'person[s]' protected by the RFRA." Indeed, the court in Rasul held that in RFRA Congress merely "intended to incorporate the standard governing free exercise claims that prevailed before the Supreme Court's 1990 decision in Employment Division v. Smith," and that such claims did not include resident noncitizens. But in Hobby Lobby, the Justice Alito's opinion for the Court explicitly states:
the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?
[Opinion at 33].
Thus, the motion argues that
a nonresident alien Guantánamo Bay detainee, who inarguably has constitutional rights in what is de facto sovereign U.S. territory, see Boumediene v. Bush, 553 U.S. 723 (2008), must also enjoy the protections extended by the RFRA.
Hobby Lobby leads inexorably to the conclusion that the nonresident alien detainees at Guantánamo Bay are “person[s]” protected by the RFRA. The Dictionary Act definition of “person” includes “individuals.” 1 U.S.C. § 1. The Dictionary Act does not confine “individuals” to U.S. citizens, just as it does not confine “corporations” to U.S. corporations; nor does it confine “individuals” to U.S. residents. The Guantánamo Bay detainees, as flesh-and- blood human beings, are surely “individuals,” and thus they are no less “person[s]” than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply. The fact that the detainees are at Guantánamo Bay changes nothing, for Hobby Lobby makes clear that a “person” whose religious free exercise is burdened under color of law need not be a U.S. citizen or resident in order to enjoy the RFRA’s protections.
The application of Hobby Lobby to "persons" who are detainees at Guantánamo Bay might be an unforeseen consequence of the decision, but the motion makes a convincing argument that it is a logical one grounded in the Court's holding and language.
In its opinion in People v. Marquan M, the New York Court of Appeals (NY's highest court), found that Albany Local Law 11 (2010) criminalizing cyberbullying was unconstitutional under the First Amendment.
The local law for Albany County criminalized cyberbullying against any "minor or person" (with "person" interestingly defined as including corporations) with cyberbullying defined as:
any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.
The majority opinion, authored by Judge Victoria Graffeo for four additional judges over a two-judge dissent, found that the law was overbroad under the First Amendment: "the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult."
The defendant and his actions here - - - a 15 year old who used Facebook to anonymously post "photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information," with "vulgar and offensive" "descriptive captions" - - - were within the "cyberbullying" that the Local Law intended to proscribe. But even Albany County agreed that the local law was overbroad. However, the County argued that the severability clause of the local law should be employed to excise the word "person" so that the only covered victims were minors. But the court found that even that would not "cure all of the law's constitutional ills." The dissenters would have engaged in saving constructions.
In ruling that a local law intended to criminalize as a misdemeanor cyberbullying did not survive the First Amendment because it was overbroad, New York's highest court left open the possibility that a prohibition of cyberbullying could be more narrowly crafted to survive First Amendment review: "the First Amendment does not give defendant the right to engage in these activities."
However, the court's opinion offers little guidance about how such a law or policy should be drafted. New York's Dignity for All Students Act as amended in 2012 places the responsibility for developing "policies and procedures intended to create a school environment that is free from harassment, bullying and discrimination" on school boards. While Albany's law was a general criminal statute, school boards will undoubtedly be considering Marquan M. as they review their current "cyberbullying" prohibitions in light of the First Amendment. They may also be recalling the Third Circuit's unhelpful intervention in a pair of "My Space" cases in which principals were arguably "bullied.
And undoubtedly, those interested in cyberbullying in and out of schools will be watching the "true threats on Facebook case," Elonis v. United States, to be heard by the United States Supreme Court next Term.
In an exceedingly brief per curiam opinion in Keating v. University of South Dakota, an Eighth Circuit panel reversed the conclusion of a district judge that the university's "civility code" was "impermissibly vague, in violation of the Due Process Clause of the Fourteenth Amendment.
The university provision at issue provided:
Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner. They must treat their colleagues, staff, students and visitors with respect, and they must comport themselves at all times, even when expressing disagreement or when engaging in pedagogical exercises, in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance.
The plaintiff, a tenure-track physics professor, did not have his employment contract renewed because of a strained relationship with his supervisors, including becoming "quite angry" at a meeting, being the subject of a sexual harassment claim, and sending an email accusing his immediate supervisor of being a lying, back-stabbing sneak.
The panel held that although the "policy employs broad language, that alone does not necessarily prevent an ordinary person from recognizing that certain conduct will result in discharge or discipline." Instead,
the civility clause articulates a more comprehensive set of expectations that, taken together, provides employees meaningful notice of the conduct required by the policy. The outer contours of the civility clause perhaps are imprecise, but many instances of faculty misconduct would fall clearly within the clause’s proscriptions, thus precluding the conclusion that the policy is facially unconstitutional.
Moreover, the panel found as applied to Keating's conduct, the civility clause was not impermissibly vague.
The use of "civilty clauses" continues to be a contested issue on due process grounds as well as First Amendment grounds. Here, the Eighth Circuit provides a definitive stamp of approval to such a policy.
Monday, June 30, 2014
A sharply divided Supreme Court ruled today in Harris v. Quinn that a state cannot require nonunionized home-healthcare workers, or personal assistants, in the state's Medicaid program to pay "fair share" union dues. The majority held that a fair-share-dues requirement for non-union members violates their First Amendment association rights.
The ruling is a victory for non-unionized home-healthcare workers, and for anti-union types generally. But on the other hand, the ruling did not go as far as it might have in striking public sector fair share requirements. The majority took another shot at public sector fair share requirements (it earlier took a shot in Knox), prompting the dissent to go to great lengths to defend the constitutionality of those requirements, and setting up those requirements (yet again) for reconsideration.
In other words, the majority strongly criticized Abood, but did not overrule it. The dissent vigorously defended it. We can expect more challenges, with the Court moving to overturn it. (Abood held that a state may require fair share fees for non-union members in a public sector union in the interests of preventing free-riding and labor peace.)
The majority (penned by Justice Alito, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas) held that personal assistants were not full state employees--they're supervised principally by the individual clients they serve. Moreover, state law limits the union's role in representing them. As a result, the Court said that Abood's rationales don't apply, and declined to "extend" Abood. The Court applied "exacting scrutiny" and held that the state fair-share requirement failed.
The dissent (penned by Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor) disagreed that personal assistants were different than public employees for Abood purposes. Dissenters would have applied Abood in a straightforward way and upheld the state fair-share requirement.
But while the majority and dissent jousted over the status of personal assistants (in relation to public employees in Abood)--and while the majority ultimately hung its hat on its distinction between public employees and personal assistants--it was clear that the real struggle is over Abood itself. The majority left it hanging (once again) by a thread, while the dissent vigorously defended it.
As in Knox, the majority opinion here begs for another case, another chance to overturn Abood--a move that would strike a very serious blow to public sector unions. In the meantime, it continues to chip away at Abood's foundation, planting time bombs in Harris and Knox that it will use whenever it gets the next case that puts Abood squarely within its range.
Until that time comes, however, Abood stays on the books. And public sector fair-share requirements survived again, even if bruised and battered.
Divided Supreme Court Recognizes Right of Closely Held Corporations Hobby Lobby and Conestoga Wood Specialties under RFRA to Avoid "Contraceptive Mandate"
On this last day of the 2013-2014 Term, the Court delivered its long-awaited opinion in "Hobby Lobby" - - now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell - - - on the question of whether corporations (or their owner/shareholders) be able to interpose a religious objection under RFRA (the Religious Freedom Restoration Act) to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? Here's our primer on the issues for more detail. Recall that the Tenth Circuit en banc in Hobby Lobby ruled for the corporation, while the Third Circuit panel in Conestoga Woods ruled for the government, and several other courts entered the fray with disparate results.
The oral arguments in March were contentious and so too are the opinions in this 5-4 decision.
The majority opinion, authored by Justice Alito, holds that closely-held corporations such as Hobby Lobby and Conestoga Wood Specialties are "persons" within the meaning of RFRA and thus are entitled to raise a claim. The Court looks at Congressional intent in RFRA, its own precedent allowing RFRA claims by nonprofit corporations, and policy issues about the difficulty of determining the "beliefs" of a corporation, and held that closely held corporation that make a profit are "persons" within RFRA.
The Court then held that the challenged HHS regulations ("the contraceptive mandate") did substantially burden the business owners religious beliefs because they believe if they comply with the mandate they will be "facilitating abortions" and if they do not comply, they will face substantial fines. The Court rejected the argument that the link between the insurance coverage paid by an employer and an employee being reimbursed by the insurance company for obtaining contraception was too attenuated.
Given this finding, under RFRA, the Court applies "strict scrutiny," but interestingly assumes that the government satisfies the "compelling government interest" prong. However, the Court finds that the HHS mandate is not the "least restrictive means" to accomplish its goal: the system already in place for accommodating the religious beliefs of nonprofit entities granted exemptions under the regulations and statute.
Justice Kennedy writes a brief concurring opinion. As we discussed, Kennedy was focused on as the "Justice to watch" and he stresses that the existence of government accommodation already in existence.
The "principal dissent" (as the Court's opinion often characterizes it) is by Justice Ginsburg, joined by Sotomayor in full, and by Breyer and Kagan (except to a section regarding the construction of RFRA as applying to corporate persons). The dissent begins by labeling the majority's decision as one of "startling breadth" that allows corporations to "opt out" of "any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs." Justice Ginsburg argues there is a slippery slope in the majority's least restrictive means analysis, despite the majority's attempt to cabin it:
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.
Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Counsel for Hobby Lobby was similarly noncommittal.
[citations and footnotes omitted].
Whether or not the Court's opinion is narrow or broad might depend more on one's political outlook and one's view of the Court as "chipping away" or as "careful crafting."
However, recall that RFRA - - - the Religious Freedom Restoration Act - - - is a statute passed by Congress that changed the standard of review the Court had announced be accorded religious claims; many now believe that Congress will be called upon to change RFRA, including perhaps the definition of "person" to exclude for-profit corporations, or to repeal RFRA in its entirety.
June 30, 2014 in Abortion, Congressional Authority, Courts and Judging, Executive Authority, Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Religion, Reproductive Rights, Sexuality, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)
Friday, June 27, 2014
Here's the problem:
In August 2008, a municipality erected a sign "Bible Baptist Church Welcomes You!," with a directional arrow and “1 BLOCK” written on it, and depicting a gold cross and a white Bible, on a right of way bordering a property owner's property. The property owner engaged in a bit of her own speech, on her own property, posting a sign of her own directly in front of the church sign which read "This Church Sign Violates My Rights As A Taxpayer & Property Owner. Residential Neighborhoods Are Not Zoned For Advertisement Signs!” The municipality threatened the property owner with sanctions for her sign, which she removed. The propery owner filed a complaint pursuant to 42 USC §1983 in federal court in November 2012 alleging constitutional violations by the municipality based on the church sign, which remains standing, and her own offending sign, which she had removed. The state statute of limitations for tort claims is two years.
The Third Circuit's opinion in Tearpock-Martini v. Borough of Shickshinny addressed exactly this problem. The complaint alleged that the "church sign" violated the Establishment Clause, while the threats to prosecute plaintiff for erecting her own sign violated both the Equal Protection Clause and the First Amendment. Generally, because §1983 does not have a statute of limitations, state law provides the applicable time limitations. The district judge dismissed the complaint based on the statute of limitations because the actions occurred more than two years prior to the filing of the complaint. Reversing on the Establishment Clause claim only, the Third Circuit found that the state statute of limitations did not bar the claim.
The plaintiff's attorney argued that the two year statute of limitations for the church sign should be viewed as a "continuing violation." As the court noted, this is more often part of a statute of limitations inquiry in an employment discrimination case: "where only in retrospect will a plaintiff recognize that seemingly unconnected incidents were, in fact, part and parcel of a larger discriminatory pattern." But here, the court accepted the municipality's argument that the continuing violation doctrine does not apply because the sign "is merely an effect" of the action - - - erecting the sign - - -that was within the statute of limitations.
But the Third Circuit found that the state's two year statute of limitations was inapplicable because although §1983 does not have a statute of limitations and state law provides the pertinent time limitations, this is true only "if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U.S. 261 (1985). The Court found that Establishment Clause rights are very important and that while other constitutional rights are also important
what further distinguishes Tearpock-Martini’s claim, and Establishment Clause claims in general, is that the traditional rationales justifying a limitations period—“to protect defendants against stale or unduly delayed claims,” “facilitat[e] the administration of claims,” and “promot[e] judicial efficiency,” [citation omitted] —simply have no persuasive force in this context. Tearpock-Martini’s challenge is to a still- existing monument that communicates anew an allegedly unconstitutional endorsement of religion by the government each time it is viewed. Strict application of the statutory limitations period both serves no salutary purpose and threatens to immunize indefinitely the presence of an allegedly unconstitutional display.
Moreover, the Third Circuit noted that it could not find any precedent for finding an Establishment Clause challenge time-barred in a passive monument case, and indeed the cases were the opposite, citing, most persuasively, Van Orden v. Perry, 545 U.S. 677 (2005) (display of Ten Commandments challenged 40 years after installation).
The Third Circuit's conclusion seems exactly right: how can there be a statute of limitations on an Establishment Clause violation of a passive monument? However, in this case, because this particular plaintiff knew about the sign, and even objected to it, one could have expected her to act more quickly. Yet the very notion of an Establishment Clause violation caused by a still existing monument or even sign is that it is a continuing one.
Thursday, June 26, 2014
United States Supreme Court Declares Massachusetts' Buffer Zone Unconstitutional in McCullen v. Coakley
A unanimous Court, albeit in separate opinions, found the Massachusetts statute imposing a 35 foot buffer zone around places where abortions are performed violates the First Amendment in its opinion in McCullen v. Coakley, reversing the First Circuit.
Writing for the Court, Chief Justice Roberts - - - who, unusually, did not ask any questions during the oral argument - - -found that the statute was not subject to strict scrutiny because it was content and viewpoint neutral, despite arguments to the contrary. However, the Court found that the statute failed the so-called "time, place, and manner" test articulated in Ward v. Rock Against Racism, 491 U. S. 781 (1989). The Court's opinion - - - joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan - - - concluded that the statute burdened more speech than necessary and was not sufficiently closely tailored. In large part, this was based on the statute's exceptional coverage of public streets and sidewalks. It was also based on the specific petitioners in the case, who are not "protesters," but people who "attempt to engage women approaching the clinics in what they call 'sidewalk counseling,' which involves offering information about alternatives to abortion and help pursuing those options." Further, the Court articulated other less restrictive means available to Massachusetts, including targeted injunctions, and found that the record did not support the need for Massachusetts' sweeping approach. As the Court concluded:
Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a tradi tional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.
Justice Scalia's concurring opinion, joined by Justices Kennedy and Thomas, criticizes the Court's opinion as one
that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily—or at least unnecessarily insofar as legal analysis is concerned.
Justice Alito, wrote separately but briefly to express his belief that the statute discriminates on the basis of viewpoint.
The takeaway is this: In a unanimous opinion, the Court ruled that Massachusetts went too far in seeking to protect the reproductive rights of women seeking abortions and infringed the First Amendment rights of those who seek to counsel them to change their minds. The Court's opinion approves more narrow methods governments might use to protect the reproductive rights of women entering clincs. But four Justices seem inclined to find a violation of the First Amendment in even more narrow government attempts.
Thursday, June 19, 2014
Nathaniel Zelinsky, writing over at Concurring Opinions, traces the history and subsequent use of Justice Potter Stewart's famous phrase from his concurring opinion in Jacobellis v. Ohio. Zelinsky found earlier uses of the phrase, or very similar phrases, but writes that Alan Novak, one of Justice Stewart's clerks, "remembered the phrase emerging out of a conversation with the justice. And it was, according to Novak, Stewart who wrote the actual opinion, including the seven words." Justice Stewart did not intend "to create a widespread sensation"; indeed, news coverage at the time all but ignored the phrase--and all but ignored Jacobellis, in favor of Quantity of Books v. Kansas, another obscenity case handed down that day.
Zelinsky offers this advice:
The unintentional popularity of "I know it when I see it" should be a note of caution for legal authors in the public sphere, from jurists to commentators more generally: it is very difficult to predict in advance what will capture widespread attention among the non-legal public. . . . On the flip side, the legal corpus is full of opinions whose authors hoped would be earthquakes but whose prose was then largely ignored.
Unanimous Supreme Court in Lane v. Franks: First Amendment Protects Public Employee's Subpoenaed Testimony
In an unanimous opinion authored by Justice Sonia Sotomayor, with an exceedingly brief concurring opinion by Justice Thomas, joined by Scalia and Alito, the Court held in Lane v. Franks that the First Amendment "protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities." However the Court held that the defendant sued in his personal capacity had qualified immunity because such a holding was not "beyond debate."
Recall from our previous discussions of the case including the certiorari grant, the law professors amicus brief, and oral argument that the underlying facts are extremely sympathetic to Edward Lane, the public employee who uncovered gross corruption of an elected state legislator and was later subpoenaed to testify in the federal criminal prosecution. Indeed, even the Attorney General for the state contended at oral argument that the Eleventh Circuit was incorrect to conclude that the employee's speech was not within the strictures of the Court's most recent public employee First Amendment case, Garcetti v. Ceballos.
On the issue of qualified immunity, however, the Court affirmed the Eleventh Circuit, finding that although the Eleventh Circuit was clearly wrong on the merits, the First Amendment right was not sufficiently "clearly established" at the time Lane was terminated by the college president.
My longer analysis of today's opinion is at SCOTUSBlog here.