Tuesday, July 2, 2013

District Judge Finds No Government Liability in "Occupy Everything" Jacket Arrest in Supreme Court Building

Federal District Judge for the District of Columbia, Amy Berman Jackson, has granted summary judgment for the government in her opinion in Scott v. United States in which Scott had alleged that the United States Supreme Court Police violated clearly established First Amendment principles when they arrested him for unlawful entry while he was wearing a jacket bearing the message “Occupy Everywhere” in the Supreme Court building.

US_Supreme_Court_(35650678)Recall our discussion in January 2012 when Scott was arrested (including video).   Since then, as we have also discussed, the federal statute prohibiting certain displays (including words) has been held unconstitutional by a different DC Federal District Judge, at least as to the plaza, and the Supreme Court quickly amended its regulation.

Scott sought damages and expungement of his record, alleging false arrest and imprisonment.  Judge Jackson rejected this claim finding that there was probable cause to arrest Scott, and even if there was not, the officers had a reasonable good faith belief that there was probable cause.  Jackson concludes that Scott's jacket "fell squarely" within the plain language of the "display clause" of 40 USC §6135:

he was displaying a device (his jacket) in the building which had been adapted to bring public attention to the “Occupy” movement.  See Kinane v. United States, 12 A.3d 23, 25–26 (D.C. 2011) (affirming the conviction of protestors for violating the display clause of section 6135 where the protestors entered the Court with shirts that read, “Shut Down Guantanamo”); Potts v. United States, 919 A.2d 1127, 1130 (D.C. 2007) (holding that an article of clothing can be a “device” within the meaning of section 6135). Since Scott was violating the display clause, he had no authority to remain in the Supreme Court building after the Supreme Court Police told him to cover the display or leave. Therefore, Scott’s violation of section 6135 provided the “additional specific factor” that the Supreme Court Police needed to establish probable cause to arrest him for unlawful entry.

Judge Jackson rejected Scott's attempts to distinguish his situation and his reliance upon that other famous jacket case, Cohen v. California. The issue of whether the police officers could reasonably rely on the state of the law may make Scott's claim difficult to win on appeal.  However, the future constitutionality of the so-called display clause criminalizing a person wearing a jacket with words such as "Occupy Everything" is far from settled.

RR

July 2, 2013 in First Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, June 28, 2013

Tenth Circuit Recognizes For-Profit Corporations as Having Religious Freedom and Free Exercise Rights

In the contentious and closely-watched case of Hobby Lobby, Inc. v. Sebelius, the Tenth Circuit has rendered its opinion concluding that a for-profit corporation has free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment.

Hobby Lobby challenges the constitutionality of the so-called "contraception mandate" under the Affordable Care Act that require health insurance plans to provide contraception coverage to employees.  We've previously discussed the issue and the circuit split here. 

800px-HobbyLobbyStowOhio

The federal district judge had rejected Hobby Lobby's claim, noting that it was a for-profit completely secular company - - - it is a corporation operating 514 arts and crafts stores in 41 states.  The federal district judge also denied the injunction as to the for-profit corporation Mardel, a Christian supply and bookstore chain, and to the family owning both the corporations through a management trust.  Hobby Lobby sought extraordinary relief from the United States Supreme Court after a Tenth Circuit panel declined to issue a stay; Justice Sotomayor in her role as Tenth Circuit Justice then rejected the claim, ruling that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

The Tenth Circuit granted the request for initial en banc review - - - thus, there is no Tenth Circuit panel opinion - - - and issued a lengthy set of opinions from the eight judges, one judge being recused. The majority opinion on pages 8-9 details the rationales of the individual judges.  But the essential division is 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under RFRA and the First Amendment.  The majority concluded there was such a right and that the corporations demonstrated a likelihood of success for prevailing on the merits. 

Judge Timothy Tymkovich's more than 65 page opinion for the majority concluded that  

Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.

Only a plurality of judges would have resolved the other two preliminary injunction factors  - - - balance of equities and public interest - - -  in Hobby Lobby and Mardel’s favor, thus the remand.

The majority, however, held

as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.

(emphasis added). The opinion often conflates RFRA (which recall, is only applicable as to federal laws) and First Amendment.  However, in specifically considering First Amendment doctrine, the majority's argument derived from two strands.  First, it noted that individuals may incorporate for religious purposes and keep their Free Exercise rights - - - such as churches, citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (holding that a “not-for-profit corporation organized under Florida law” prevailed on its Free Exercise claim).  Second, it then noted that "unincorporated individuals may pursue profit while keeping their Free Exercise rights," citing United States v. Lee, 455 U.S. 252 (1982) (considering a Free Exercise claim of an Amish employer); Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion) (considering a Free Exercise claim by Jewish merchants operating for-profit).

It then characterized the government's argument as being that these "Free Exercise rights somehow disappear" when "individuals incorporate and fail to satisfy Internal Revenue Code § 501(c)(3)."  The majority found this distinction to be one that cannot be supported by First Amendment doctrine.  It did, however, implicitly limit the facts under which for-profit corporations could be found to have free exercise rights: 

The government nonetheless raises the specter of future cases in which, for example, a large publicly traded corporation tries to assert religious rights under RFRA. That would certainly seem to raise difficult questions of how to determine the corporation’s sincerity of belief. But that is not an issue here. Hobby Lobby and Mardel are not publicly traded corporations; they are closely held family businesses with an explicit Christian mission as defined in their governing principles. The Greens, moreover, have associated through Hobby Lobby and Mardel with the intent to provide goods and services while adhering to Christian standards as they see them, and they have made business decisions according to those standards. And the Greens are unanimous in their belief that the contraceptive-coverage requirement violates the religious values they attempt to follow in operating Hobby Lobby and Mardel. It is hard to compare them to a large, publicly traded corporation, and the difference seems obvious.

Thus, the majority stated that it did not share any concerns that its holding would prevent courts from distinguishing businesses that are not eligible for RFRA’s - - - and presumably the First Amendment's - - - protections.

While the analysis of substantial burden that follows is important, it is the holding that a secular for-profit corporation has a sincerely held religious belief that entitles it to assert a free exercise claim is the centerpiece of the controversy. 

Indeed, Chief Judge Briscoe, joined by Judge Lucero, call the majority's opinion on this point

nothing short of a radical revision of First Amendment law, as well as the law of corporations. But whatever one might think of the majority’s views, the fact remains that they are wholly unsupported by the language of the Free Exercise Clause or the Supreme Court’s free exercise jurisprudence, and are thus, at best, “considerations for the legislative choice.”

The ability of for-profit corporations to have Free Exercise rights under the First Amendment - - - along with their Free Speech rights as articulated in the still-controversial Citizens United v. FEC, decided in 2010 and liberally cited in Hobby Lobby - - - is highly contested.  This may certainly be going (back) to the United States Supreme Court.

RR
[image via]

June 28, 2013 in Campaign Finance, Congressional Authority, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Privacy, Religion, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 25, 2013

IRS "Scandal" Developments and Viewpoint Discrimination Under the First Amendment

Recall the lawsuits filed against the IRS alleging viewpoint discrimination prohibited under the First Amendment for targeting "conservative" and "tea party" groups' application under  26 U.S.C. § 501(c) for tax exempt status? 

New developments may make those allegations much more difficult to prove.  The IRS "Be On the Look Out" - - - BOLO - - - lists also included groups that could be described as "Progressives" :

Common thread is the word “progressive.”  Activities appear to lean toward a new political party.  Activities are partisan and appear anti-Republican.  You see references to “blue” as being “progressive.” 

And continues that "“progressive” activities appear to show that (c)(3) may not be appropriate."

There is more from the House Ways and Means Ranking Committee Member Sander Levin in an eleven page memo.

Tea_Tax_Tempest
Without the viewpoint discrimination claim, there is little to support a First Amendment challenge.  There seemingly cannot be a content challenge, for after all, content is at the heart of  §501(c) tax exemptions, which may be why some advocate for the provision's repeal.  

RR
[image: Carl Guttenberg's 1778 engraving "The Tea-Tax-Tempest" via]

June 25, 2013 in Current Affairs, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, June 24, 2013

Supreme Court Takes First Amendment Abortion Clinic Buffer Zone Case

The United States Supreme Court granted certiorari in McCullen v. Coakley in which the First Circuit rejected a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. 

The First Circuit rejected the argument that the First Amendment doctrine governing buffer zones had shifted after the Supreme Court's decisions in Sorrell v. IMS Health Inc. (2011); Snyder v. Phelps (2011); and Citizens United v. FEC (2010).  

This grant of certiorari could signal a more robust recognition of First Amendment challenges to buffer zones.

RR

June 24, 2013 in First Amendment, Reproductive Rights, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sunday, June 23, 2013

Muslim Surveillance in NYC: Federal Complaint Challenges Constitutionality of Practices

4-nypd-casepage-mgb-150x150-v01The complaint in Raza v. City of New York details over 150 paragraphs of facts and alleges that NYPD practices have infringed upon the plantiffs' equal protection and First Amendment religion clauses rights, as well as state constitutional rights.  The plaintiffs are United States citizens as well as Muslim community leaders, as well as two mosques and one chartitable organization.  They allege that they have been "religiously profiled" and subject to surveillance, including infiltration of their organizations.

The complaint is worth reading for its specific facts of an extensive practice of surveillance of the named plaintiffs. Interestingly, the complaint does not include a Fourth Amendment claim but does include a First Amendment Establishment Clause claim, contending that the NYPD practice "fosters an excessive government entanglement with religion by, among other things, subjecting Plaintiffs to intrusive surveillance, heightened police scrutiny, and infiltration by police informants and officers."   More predictable are the equal protection and free exercise of religion claims.  

With the increasing public discussion of generalized surveillance, this challenge to a specific tageted practice within a city is worth watching.  Of course, it is not the first time that the NYPD has been challenged for its practices of surveillance.

RR
[image: logo of the plaintiff organization via]

 

June 23, 2013 in Cases and Case Materials, Criminal Procedure, Current Affairs, Equal Protection, Establishment Clause, First Amendment, Fourteenth Amendment, Fourth Amendment, Free Exercise Clause | Permalink | Comments (0) | TrackBack (0)

Second Circuit on True Threats, The First Amendment, and the Passive Voice

A divided Second Circuit panel upheld the conviction of Harold Turner in its opinion in United States v. Turner for threats in a blog post against Seventh Circuit Judges Easterbrook, Bauer, and Posner.  Turner objected to the judges' ruling in National Rifle Association of America v. Chicago holding that the Second Amendment was not incorporated as to the states (and municipalities), later reversed by the United States Supreme Court in McDonald v. City of Chicago.  

 

The_tree_of_liberty_must_be_planted_immediately!_by_James_Gillray
"The tree of liberty must be planted immediately!" circa 1797.
Turner's blog post contended that the blood of these judges would "replenish the tree of liberty" and that they should be made examples lest other judges not understand the message "Obey the Constitution or die."  Importantly, not only did Turner say that the judges "deserve to be killed," he posted "photographs, work addresses, and room numbers for each of the three judges, along with a map indicating the location of the courthouse in which they worked, and a photograph of the building modified to point out “Anti-truck bomb barriers.”"  Also importantly, Turner's blog included references to the killing of family members of United States District Judge Joan Lefkow in 2005.

 

The jury was instructed as to the First Amendment and nevertheless convicted.  The panel majority concluded "based on an independent review of the record that the core constitutional fact of a true threat was amply established, and that Turner’s conduct was unprotected by the First Amendment." 

Among Turner's arguments that his blog statements did not constitute a "true threat" was his use of the passive voice.  For the majority, this was overly technical and belied the other statements regarding the location of these judges and the killing of another judge's family members.  Syntax could be important - - - but not here.

Dissenting Judge Rosemary Pooler - - - who, coincidentally, was a member of a Second Circuit panel (along with Sonia Sotomayor) holding that the Second Amendment was not incorporated against the states - - -carefully considered the "true threats" doctrine as compared to incitement/advocacy doctrines.  For Pooler,

Turner’s communications were advocacy of the use of force and not a threat. It is clear that Turner wished for the deaths of Judges Easterbrook, Posner, and Bauer. But I read his statements, made in the passive voice, as an exhortation toward “free men willing to walk up to them and kill them” and not as a warning of planned violence directed toward the intended victims. This reading is furthered by the fact that Turner’s words were posted on a blog on a publicly accessible website, and had the trappings of political discourse, invoking Thomas Jefferson’s famous quotation that “[t]he tree of liberty must be replenished from time to time with the blood of tyrants and patriots,” Although vituperative, there is no doubt that this was public political discourse.

[citations omitted].  But Pooler continued that this did not mean that Turner's speech was constitutionally protected.  Instead, the question should be whether Turner's speech was an incitement protected - - - or not - - - under Brandenburg v. Ohio (1969).  She quotes the district judge on this point but concludes by noting that Turner was not charged under the incitement statute, but only the threat statute.

Judge Pooler seems to have the better view here, as the blog post was not directed to the persons threatened but exhorted others to act.  But the majority would view such a construction as overly technical.

RR
[image via]

June 23, 2013 in Courts and Judging, First Amendment, Interpretation, Opinion Analysis, Second Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Tester Amendment on Constitutional Corporate Personhood

Senator Jon Tester this week introduced Senate Joint Resolution 18, a proposed constitutional amendment to undo Citizens United and revoke constitutional protections for corporations.  The proposed amendment, in relevant part, reads:

The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected State and Federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Here's Tester's press release, explaining the need; here he is on YouTube:

 

The Washington Times, among others, have pushed back, arguing that Tester's amendment sweeps too broadly--and would take media corporations out from under their First Amendment protections.

SDS

June 23, 2013 in First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Affirms Injunction Against Judicial Endorsement, Expenditure Ban

The Ninth Circuit this week upheld in part a lower court permanent injunction against the enforcement of a Montana statute making it a criminal offense for any political party to "endorse, contribute to, or make an expenditure to support or oppose a judicial candidate" in a nonpartisan judicial election.

The ruling in Sanders County Republican Central Committee v. Fox is no surprise, after the Ninth Circuit ruled last fall that Montana's ban, at Mont. Code Ann. Sec. 13-35-231, insofar as it restricted endorsements and expenditures, violated the First Amendment.  

But the court also reversed the lower court's injunction against enforcing the ban on contributions.  It ruled that the earlier case didn't address the constitutionality of the state's ban on contributions and that the contribution ban wasn't before the court here.

This week's ruling means that Montana cannot enforce its ban against political parties endorsing or spending money in support of or in opposition to a judicial candidate in a nonpartisan judicial election.  But the state can enforce its ban against political parties making contributions to those judicial candidates.

SDS

June 23, 2013 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, June 20, 2013

Court Decides "Prostitution Pledge" Case: Federal Statute Violates First Amendment

661px-World_mapThe United States Supreme Court today decided United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. It held the provision unconstitutional and affirmed the Second Circuit opinion, which the Circuit had  refused to review en banc, and which conflicted with a Sixth Circuit opinion. 

The Court's opinion, authored by Chief Justice Roberts, is relatively brief - - - a mere 15 pages - - - first acknowledges that the provision in the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 would clearly violate the First Amendment's compelled speech doctrine if it were a direct regulation of speech.  In terms of an attached condition to spending - - - the unconstitutional conditions doctrine - - - Roberts explained that

the relevant distinction that has emerged from our cases is between conditions that define the limits ofthe government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.

He elaborated on this distinction by contrasting Regan v. Taxation With Representation of Washington, decided in 1983 and upholding a requirement that nonprofit organizations seeking tax-exempt status under 26 U. S. C. §501(c)(3) not engage in substantial efforts to influence legislation, with FCC v. League of Women Voters of California, decided in 1984, holding unconstitutional a condition on federal financial assistance to noncommercial broadcast television and radio stations that prohibited all editorializing, including with private funds.  

The opinion then both distinguished and relied upon Rust v. Sullivan, an opinion that was central to oral argument and the briefs.  The Court noted that the Government's only positive precedent was Holder v. Humanitarian Law Project, but held that it was essentially inapposite.  Instead, although the lines could be difficult to draw, the Court held that

the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. 

The opinion closed by reciting West Virginia Bd. of Ed. v. Barnette's famous quote:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

If some will not be surprised about Roberts' position given his expressions at oral argument, even fewer will be surprised by Justice Scalia.  Dissenting, Justice Scalia - - - never a fan of unconstitutional conditions doctrine - - - joined by Justice Thomas finds Barnette a "distraction" from the real issues.  He criticizes the majority's distinction between central and not, but also finds that there is no coercion.  He analogizes to "King Cnut’s commanding of the tides" to conclude there is "no compulsion at all," simply "the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject."  Of course, the majority, by considering whether or not a condition is central, essentially held that the price of admission was simply not "reasonable."  But for Scalia, requiring an "ideological commitment" as a condition to government funding should be acceptable, and the "real evil" of the opinion is a type of floodgates argument:  "One can expect, in the future, frequent challenges to the denial of government funding for relevant ideological reasons."   More broadly, he extends his argument beyond funding, stating that while one may be a Communist or anarchist, members of the legislature, judiciary, and executive are bound by the Constitution to take an oath affirming it, Art. VI, cl. 3. 

RR
[image via]

June 20, 2013 in Cases and Case Materials, First Amendment, Gender, International, Opinion Analysis, Sexuality, Speech, Spending Clause | Permalink | Comments (1) | TrackBack (0)

Friday, June 14, 2013

Tenth Circuit Allows Compelled Speech Claim for Oklahoma License Plate

In a divided opinion in Cressman v. Thompson, the Tenth Circuit has allowed a First Amendment compelled speech challenge to Oklahoma's license plate (pictured below).

  2010_Oklahoma_License_Plate

 

For those familiar with Wooley v. Maynard (1977), the case seems as if it is a mere reprise.  However, unlike Maynard's objection to the New Hampshire license plate motto "Live Free or Die," Cressman objects to the image on the license plate.  For the dissenting judge, this distinction makes all the difference.  In a nutshell, the brief dissent contends that Cressman can not clear the basic hurdle of "speech."  As dissenting judge Kelly explains:

In 2009, Oklahoma changed its standard-issue license plate to incorporate a representation of Allan Houser’s “Sacred Rain Arrow,” on permanent display at Tulsa’s Thomas Gilcrease Institute of American History and Art.  Though awarded the Automobile License Plate Collectors Association’s best plate of the year award for 2009, Mr. Cressman considers his display of the image on the license plate to be compelled speech.   . . . .Mr. Cressman has connected the image on Oklahoma’s license plate to the sculpture and that sculpture to a Native American legend. He asserts that the license plate promotes “pantheism, panentheism, polytheism, and/or animism,” all of which are antithetical to his religious beliefs.  However, he has not alleged facts from which we can reasonably infer that others are likely to make the same series of connections.

For the majority, it was sufficient that Cressman alleged that the image had an ideological message at the complaint stage.  The court's analysis of symbolic speech and the "particularized message" cases - - - think flags and parades - - - supported this conclusion.  The majority also discussed the compelled speech precedent.  From this, the majority concluded the district judge should not have dismissed the complaint.  The majority declined to enter a preliminary injunction, however, ruling that the State should have the opportunity to present its interests.  The majority very clearly held, however, that Wooley v. Maynard remains viable precedent, despite some arguments that it has been undermined.  The majority also very clearly held that Cressman had standing, except as to one individual defendant.

On remand, the district judge will be considering whether Cressman's plausible allegations can be proven as true.

RR

June 14, 2013 in Federalism, First Amendment, Free Exercise Clause, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, June 13, 2013

Supreme Court Reacts Swiftly Regarding Protests at its Plaza

Presumably reacting to the decision of Judge Beryl Howell declaring the Supreme Court protest-ban statute, 40 USC §6135, unconstitutional which we discussed yesterday,  the Court has issued a new policy, "Regulation Seven"  (h/t Lyle Denniston).  

800px-US_Supreme_Court_-_originalThe regulation provides:

This regulation is issued under the authority of 40 U.S.C. § 6102 to protect the Supreme Court building and grounds, and persons and property thereon, and to maintain suitable order and decorum within the Supreme Court building and grounds. Any person who fails to comply with this regulation may be subject to a fine and/or imprisonment pursuant to 40 U.S.C. § 6137. This regulation does not apply on the perimeter sidewalks on the Supreme Court grounds. The Supreme Court may also make exceptions to this regulation for activities related to its official functions.

No person shall engage in a demonstration within the Supreme Court building and grounds. The term “demonstration” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.

Approved and Effective June 13, 2013

Importantly, the regulation addresses several of the issues Judge Howell found relevant in her decision.  First, it emphasizes "conduct" rather than simply wearing a t-shirt with a slogan or carrying a sign.  However, the regulation does seem to include "speechmaking" in this broad category of "like forms of conduct."  Second, the regulation requires this conduct as "reasonably likely to draw a crowd or onlookers."  This emphasizes the effect, but also implies some sort of intent requirement in the "reasonably likely."  Third, the regulation specifically excludes the "casual use by visitors or tourists."  This would presumably exclude the t-shirt wearing preschoolers that Judge Howell referenced in her opinion, as well as the solitary person arrested for wearing a jacket that bore the phrase "Occupy Everything."

Nevertheless, the Supreme Court's reservation for itself of making exceptions and the remaining prohibition of expression of "views" could certainly prompt serious First Amendment challenges to the regulation.

As for the statute and its constitutionality, this narrower regulation may indicate some level of agreement with a conclusion that 40 USC §6135 is overbroad and unreasonable.

RR

June 13, 2013 in Courts and Judging, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 12, 2013

Federal Judge Declares Supreme Court Assembly and Display Statute Unconstitutional

In her opinion in Hodge v. Talkin, United States District Judge for the District of Columbia Beryl Howell held unconstitutional the federal statute prohibiting assemblies and displays at the Supreme Court building or grounds.  The statute at issue, 40 USC §6135 provides:

It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.

360px-Gitmo_protest,_Washington_2
Guantanamo Bay Protest Outside the Supreme Court 2007
As we have previously discussed, the Supreme Court building has been afforded special First Amendment status and even a non-protesting person with "Occupy Everything" on his jacket has been subject to arrest. 

Hodge, a college student, was initially arrested under §6135 for wearing a 3 x 2 foot sign that read "The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans And Hispanic People."  After an agreement was reached in the criminal case, Hodge filed a complaint challenging the constitutionality of the statute. The judge held that Hodge had standing, despite some suggestions at oral argument to the contrary.

Judge Howell's extensive opinion recites the history of the statute, including the fact that the nearly identical precursor statute (40 USC §13k) was upheld by the United States Supreme Court in United States v. Grace (1983), over the partial concurrence and dissent of Justice Thurgood Marshall, which she calls "prescient" in the latter part of her opinion.  However, Judge Howell distinguishes Grace by stating that the decision "focused only on the constitutionality of the Display Clause" "as applied to the sidewalks surrounding the Supreme Court’s grounds, but left unresolved the facial constitutionality of the Display Clause and Assemblages Clause."  Judge Howell then discusses the cases of the DC Court of Appeals that have "for decades affirmed convictions" but without "delving deeper into the constitutional analysis" than its initial cases. 

After describing the Supreme Court plaza, the judge assumed without deciding that the Government's argument that the plaza was a "nonpublic forum" was correct.  Nevertheless, the judge held that the statute was not a reasonable limitation on speech.  Judge Howell rejected both of the Government's proffered interests: “permitting the unimpeded ingress and egress of visitors to the Court” and “preserving the appearance of the Court as a body not swayed by external influence.” In discussing the unreasonableness of the "influence" interest, Judge Howell opined:

It is hard to imagine how tourists assembling on the plaza wearing t-shirts bearing their school’s seal, for example, could possibly create the appearance of a judicial system vulnerable to outside pressure.

She concluded that while "there may be a legitimate interest in protecting the decorum of the judiciary, the challenged statute is not a reasonable way to further that interest."  This also led to her finding that the statute was overbroad.  She considered the assemblage clause and the display clause of the statute separately, but again, her examples - - - preschool children, Court employees, and tourists in t-shirts - - - were key to the analysis. 

Finally, Judge Howell rejected imposing a judicial construction, such as an intent requirement, to save the constitutionality of the statute. 

Sure to be appealed, Judge Howell's careful and tightly reasoned 68 page opinion could prove to be an important step in fully applying the First Amendment to the place where the First Amendment is so often adjudicated.

RR
[image via]

UPDATE here

 

June 12, 2013 in First Amendment, Interpretation, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, May 31, 2013

Tax-Exempt Lawsuits Challenge Constitutionality of IRS Actions

The IRS scandal caused by allegations that certain groups were highlighted for extra scrutiny regarding their tax-exempt status application has spawned several complaints filed in federal court alleging violations of the First Amendment and Fifth Amendment.

Paul Caron over at Tax Prof Blog has been keeping tabs on the scandal including linking to the developing news items.  The scandal started with a report issued  by the Treasury Inspector General for Tax Administration entitled "Inappropriate Criteria Were Used to Identify Tax-Exempt Applications for Review." 

Underlying the controversy is the application of  26 U.S.C. § 501(c), governing organizations that shall be exempt from taxation.

Subsection (c) (3) includes:

Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

(emphasis added).

Subsection (c) (4) includes:

Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.

The extent to which such tax exempt organizations may engage in political activities and whether they must be "exclusively"  - - - or in contrast "primarily" - - - for the promotion of social welfare is subject to some controversy.  For example, the group Citizens for Responsibility and Ethics in Washington has petitioned for clarifying rule (or change in rule) from the IRS. 

800px-IRS_Building

 

Nevertheless, the allegations contend that IRS personnel subjected certain organizations to special scrutiny, seeking more documentation and causing significant delays.  For example, the complaint in Norcal Tea Party Patriots v. IRS, a class action filed in the Southern District of Ohio, where the Cincinnati office is located, alleges:

 In sum, because of their political viewpoints, conservative groups were subjected to harassment, intimidation, delay, discrimination, expense, intrusiveness, and embarrassment all as a part of a scheme by IRS agents and officers John Doe 1 -100 to suppress their political activity and punish their political views.

In another lawsuit filed in the District of Columbia, Linchpins of Liberty v. United States, the more expertly crafted complaint likewise alleges viewpoint discrimination in violation of the First Amendment as well as equal protection violations, in addition to statutory claims.

Given the government's own report, it will be interesting to seethe government's responses to the complaints.

RR

May 31, 2013 in Current Affairs, Equal Protection, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, May 19, 2013

AP CEO Gary Pruitt Explains Why Justice Probe Violates First Amendment

Associated Press CEO (and former First Amendment lawyer for McClatchy newspapers) Gary Pruitt gave his first television interview today to Bob Schieffer on Face the Nation and blasted the Justice Department seizure of AP phone records as violating the First Amendment.

 

Pruitt's complaints grow out of the Justice Department secret subpoena for phone records of 20 AP phone lines as part of the Department's investigation into an AP article that reported that the CIA foiled a terrorist plot to bomb a US airliner.  The Department obtained the records directly from the phone company, without prior notice to AP.

Pruitt argued that the Department's efforts swept far too broadly and violated its own rules relating to phone records.  

Pruitt's appearance follows his May 13, 2013, letter to AG Holder, objecting to the Department's investigation.  Deputy AG James Cole wrote back on May 14, 2013, arguing that the Department's subpoenas were sufficiently narrow.

Glenn Greenwald wrote about the issue last week in the Guardian (with links to others raising objections).  The Washington Post just posted a story on aggressive government tactics in leak investigations, focusing on the Stephen Jin-Woo Kim case.

SDS

May 19, 2013 in Association, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 15, 2013

The New Yorker, Anonymity, and Confidential Sources

Screen Shot 2013-05-15 at 7.53.46 PMWhat if the reporters' confidential sources were unknown even to the reporter?  Might this solve the problems that the Court struggled with more than 40 years ago in Branzburg v. Hayes?

The New Yorker has introduced a technological attempt to insulate the source and the reporter.  As The New Yorker explains its new concept, called "Strongbox" :

as it’s set up, even we won’t be able to figure out where files sent to us come from. If anyone asks us, we won’t be able to tell them.

A fuller explanation in the article by Kevin Poulson begins: "Aaron Swartz was not yet a legend when, almost two years ago, I asked him to build an open-source, anonymous in-box.

Of course, the government's technological abilities have also progressed since the grand jury inquiry of Branzburg.

RR

 

May 15, 2013 in First Amendment, News | Permalink | Comments (0) | TrackBack (0)

Force-Feeding at Guantanamo

The ACLU and 19 other organizations sent a letter this week to Secretary of Defense Chuck Hagel opposing the military's force-feeding hunger-striking detainees at Guantanamo Bay.  According to the ACLU, 29 detainees are currently being force-fed.  We previously posted on a ruling by New York's high court upholding the practice of force-feeing in New York prisons.

The military's standard operating procedures (SOP) on fasting and force-feeding changed just recently (published on Al Jazeera), loosening protections against force-feeding.  (The earlier SOP is here.)  Most notably, the recent changes to the SOP charge the military commander of the base, not a medical doctor, with determining who is a hunger striker.

Here's the ACLU's legal case against force-feeding, from this week's coalition letter to Secretary Hagel:

Force-feeding as used in Guantanamo violates Common Article 3 of the four Geneva Conventions of 1949, which bar cruel, humiliating and degrading treatment.  It also could violate the Detainee Treatment Act of 2005, which prohibits the "cruel, inhuman, or degrading treatment" of prisoners "regardless of nationality or physical location."  Indeed, a 2006 joint report submitted by five independent human rights experts of the United Nations Human Rights Council (formerly the U.N. Commission on Human Rights) found that the method of force-feeding then used in Guantanamo, and which appears to remain in effect today, amounted to torture as defined in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994.  The report asserted that doctors and other health professionals authorizing and participating in force-feeding prisoners were violating the right to health and other human rights, including those guaranteed by the International Covenant on Civil and Political Rights, which the United States ratified in 1992.  Those concerns were reiterated this month by the Office of the UN High Commissioner for Human Rights, the Inter-American Commission on Human Rights, the United Nations Working Group on Arbitrary Detention, and three UN Special Rapporteurs.

While the letter focuses on cruel, inhuman, or degrading treatment, there may be other problems with force-feeding, too.  For example, force-feeding may infringe on hunger-striking detainees' free speech.  But First Amendment claims by hunger-strikers in regular detention in the U.S. have not been successful; Guantanamo Bay detainees would almost certainly face even steeper First Amendment challenges in the courts.  There's also the right to refuse medical treatment.  As Michael Dorf (DorfonLaw.org) argues at jurist.org, "five Justices in [Cruzan v. Dir. Missouri Dep''t of Health] did say that they thought that competent adults have the right to refuse forced feeding, even if death will result."  But that runs up against Washington v. Harper, holding that prison officials could override a prisoner's objection to forcibly being administered medication, assuming it's in the prisoner's medical interest.

Anyway, as Dorf points out, some Guantanamo detainees might have a hard time even bringing a case.  Judge Kessler (D.D.C) dismissed a detainee force-feeding case in 2009, based on the jurisdiction-stripping provision in the Military Commissions Act of 2006.  That provision says,

Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The difference here is that some of the hunger-strikers now have been cleared for release--the U.S. just can't find a place to send them.  Those detainees are not "determined by the United States to have been properly detained as an enemy combatant or [are] awaiting such determination," and are not barred by 2241(e)(2) from bringing suit.

SDS

May 15, 2013 in Courts and Judging, Current Affairs, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Medical Decisions, News, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)

Daily Read: First Amendment Institutions by Paul Horwitz

ConLawProf Paul Horwitz's new book, First Amendment Institutions seeks to develop the conversation about reorienting First Amendment doctrine towards institutionalism. 

Horwitz

Most ConLawProfs would agree that First Amendment doctrine suffers from incoherence, but fewer may agree that institutionalism is the solution, and even those who do favor institutionalism may differ on their selection of the institutions deserving deference.

But for anyone teaching or writing in the First Amendment, Horwitz's book deserves a place on a serious summer reading list.  My longer review appears in Law and Politics Book Review.

RR

May 15, 2013 in Books, Establishment Clause, First Amendment, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, May 9, 2013

Divided Sixth Circuit Panel Upholds Michigan's Public Act 53 Regulating Public School Union Dues Collection

A Sixth Circuit panel today upheld the constitutionality of Michigan's Public Act 53 in its opinion in Bailey v. Callaghan. 

Michigan’s Public Act 53, enacted in 2012, governs public school employee union dues.  It provides:

A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.

As the panel explained, "Thus, under the Act, unions must collect their own membership dues from public-school employees, rather than have the schools collect those dues for them via payroll deductions." 

Central_School_Iron_River_MI_c_1909

The panel reversed the district court's grant of a preliminary injunction, holding that the challengers' First Amendment and Equal Protection claims were "without merit."

On the First Amendment claim, the panel held that the case was squarely controlled by the Supreme Court's 2009 decision in Ysursa v. Pocatello Educational Ass'n, and the distinctions urged by the challengers were inapposite.  Its summary exiled the dispute from First Amendment terrain:

So Public Act 53 does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind. Instead, the Act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern.

The Equal Protection argument was dispatched with even less fanfare:

The question here is whether there is any conceivable legitimate interest in support of this classification. We hold that there is: the Legislature could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers. The plaintiffs’ equal-protection claim therefore fails.

Dissenting, Judge Jane Branstetter Stranch begins by noting that the "majority spills little ink" - - - the opinion is 5 pages - - - and then proceeds with a more robust analysis of the First Amendment challenge.  She takes seriously the viewpoint discrimination argument given the Michigan legislature's specific statement that the purpose of Act 53 was to put a "check on union power."  This type of viewpoint discrimination means that Ysursa does not control, and in fact "Ysursa expressly acknowledges the long-standing prohibition on viewpoint discrimination in the provision of government subsidies," although the Court held that because that law applied to all employers, there was no viewpoint discrimination. Instead, she relies on Citizens United to contend:

To the extent Act 53’s purpose is to cripple the school unions’ ability to raise funds for political speech because Michigan’s legislature finds that speech undesirable, it is plainly impermissible. Political speech, of course, is a core First Amendment activity that “must prevail against laws that would suppress it, whether by design or inadvertence.” Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010). And “restrictions distinguishing among different speakers, allowing speech by some but not others,” run afoul of the First Amendment precisely because they are “all too often simply a means to control content.” Id. at 898–99.

This doctrinal prohibition applies not only to laws that directly burden speech, but also to those that diminish the amount of speech by making it more difficult or expensive to speak. See, e.g., Citizens United, 130 S. Ct. at 897.

It does seem that Judge Stranch's dissent has the better argument, and definitely the more developed one. 

RR
[image: Central School Iron River Michigan, circa 1909, via]

May 9, 2013 in Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 8, 2013

D.C. Circuit Strikes NLRB Notice-of-Rights Rule

A three-judge panel of the D.C. Circuit struck the enforcement mechanisms for the NLRB rule requiring employers to post a notice of employee rights.  The ruling yesterday in National Association of Manufacturers v. NLRB means that the NLRB rule is invalid.

The case strikes a blow at the NLRB effort to educate employees on their workplace rights, in an era where union membership is way down (7.3% of the private workforce) and where more and more workers enter the workplace without knowledge of their rights.

The case arose after the NLRB promulgated a rule that required employers to post a notice of employee rights in the workplace.  Violation of the rule came with an unfair labor practice under Section 8(a)(1) of the NLRA.  (It also came with a suspension of the running of the six-month period for filing any unfair labor practice charge, and it constituted evidence of unlawful motive in a case in which motive is an issue.)

The rule says,

[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures . . . .

29 C.F.R. Sec. 104.202(a).  (Here's the single-page version of the notice poster.)  But the plaintiffs argued that this violated the NLRA and free speech.  The court agreed, concluding that the rule violated Section 8(a), which says:

The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

The court said that "[a]lthough Section 8(a) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board's rule does both."  

The court rejected the NLRB's argument that the required post is the Board's speech, not the employer's speech.  Comparing Section 8(a) to First Amendment law, the court said that it didn't matter: dissemination of messages gets the same free speech treatment as creation of messages.

The court also rejected the NLRB's argument based on UAW-Labor Employment & Training Corp. v. Chao, (D.C. Cir. 2003), which upheld President Bush's executive order requiring government contractors to post notice at their workplaces informing employees of their rights not to be forced to join a union or to pay union dues for nonrepresentational activities.  (The plaintiffs in that case argued only that President Bush's EO was preempted by the NLRA; they lodged no First Amendment claim.)  The difference, according to the court: there was no prospect in UAW of a contractor's being charged with an unfair labor practice for failing to post the required notice.  

(Two members of the panel, Judges Henderson and Brown, would have gone farther and ruled that the NLRB lacked authority to pomulgate the posting rule.)

The court addressed the preliminary issue whether the NLRB had a quorum when it promulgated the rule, in light of its recent ruling in Noel Canning v. NLRB that President Obama's recess appointments were invalid.  But the court held that the NLRB had a quorum when the rule was filed with the Office of the Federal Register (the relevant time), even if it didn't have a quorum when the rule was published.

SDS

May 8, 2013 in Appointment and Removal Powers, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, May 3, 2013

New York's Highest Court on the Constitutionality of Force-Feeding Hunger Striking Prisoners

The hunger strike amongst prisoners at Guantanamo Bay has led to force-feeding, a situation prompting the Office of the High Commissioner for Human Rights at the UN to issue a statement reiterating the disapproval of Guantanamo and remind the United States that:

in cases involving people on hunger strikes, the duty of medical personnel to act ethically and the principle of respect for individuals’ autonomy, among other principles, must be respected. Under these principles, it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.

New York's highest court, in its opinion in Bezio v. Dorsey regarding a state prisoner on a hunger strike reached an opposite conclusion.  The court's majority stated:

The issue before us is whether Dorsey's rights were violated by a judicial order permitting the State to feed him by nasogastric tube after his health devolved to the point that his condition became life-threatening. We answer that question in the negative.

450px-Galler,_Hornsgatan_2012aYet the question of Dorsey's "rights" that were properly before the court occupied the bulk of the majority and dissenting opinions.  The state Department of Corrections and Correctional Services (DOCCS) had originally sought the judicial order relating to Dorsey, a "serial hunger striker," which Dorsey resisted with pragmatic rather than constitutional arguments.  But the state relied heavily on previous New York law - - - including a case involving Mark Chapman, the man convicted of murdering John Lennon - - - to support the constitutionality of forced-feeding. 

Chief Judge Lippman, dissenting (and joined by Judge Rivera) argued that there were too many factual distinctions, including any finding that the prisoner or the institution was actually in danger.

As noted, DOCCS's own consulting psychiatrist stated flatly in his assessment that Mr. Dorsey was not suicidal. He was undoubtedly manipulative [as the doctor had stated], but all civil disobedience is manipulative. Manipulativeness, obviously, is not a sufficient predicate for forced feeding by the State.

While concluding that the issues are not properly before the court, and that the case is moot under state constitutional doctrine, the dissenting judges nevertheless concluded

The right to refuse treatment, we have held, is a kind of liberty interest within the protective ambit of the Due Process Clause of the State Constitution. While the right may be overcome in compelling circumstances justifying the state's resort to its police power and the state may thus intervene to prevent suicide, the individual's basic prerogative to make decisions affecting his or her own personal health and right to be left alone, i.e. to personal privacy, ordinarily will trump even the best intended state intervention.  

For the majority of the court, however, the balance articulated in Turner v. Safley (1987) was easily resolved in favor of the legitimate penological interests of the prison, including the risk of a "significant destabilizing impact on the institution" by an inmate hunger strike, to allow force feeding an inmate.

RR
[image via]

May 3, 2013 in Due Process (Substantive), First Amendment, Fourteenth Amendment, International, Medical Decisions, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)