Wednesday, January 29, 2014
After the President's State of the Union Address last evening, a NY1 reporter sought comments from United States Representative Michael Grimm (pictured), but when the reporter attempted to go "off-topic," the Congressperson abruptly ended the interview. Nothing unusual about that, but then Representative Grimm came back to confront the reporter and the following was caught on camera:
Grimm: "Let me be clear to you, you ever do that to me again I'll throw you off this f-----g balcony."
Scotto: "Why? I just wanted to ask you..."
Grimm: "If you ever do that to me again..."
Scotto: "Why? Why? It’s a valid question."
Grimm: "No, no, you're not man enough, you're not man enough. I'll break you in half. Like a boy."
The video can be viewed on the NY1 site here, with additional reporting including Representative Grimm's subsequent statement.
Threats - - - or "true threats" - - - as a categorical exemption to protected speech is muddled, but most analysis does consider "imminence" as necessary, as in Hess v. Indiana (1973) where the Court found that the statements during a protest about 'taking the street' was directed at some indefinite future time. Similarly in Virginia v. Black (2003), the Court found that cross-burning was not a sufficient threat, over an eloquent dissent by Justice Thomas. The classic case of Brandenburg v. Ohio (1969) might also be invoked, although there should be little question that Grimm was engaging in advocacy.
Similarly, Representative Grimm could argue he should be protected by the Speech and Debate Clause, Article I §6 cl. 1, providing that members of Congress shall be privileged from arrest "for any Speech or Debate in either House." The Court in Gravel v. United States (1972) held that this applied to protect legislators when they were engaged in integral part of the deliberative and communicative process of legislation - - - which would presumably not include an interview with a reporter.
Tuesday, January 28, 2014
First Amendment Issues with New York Bill Prohibiting University Support of Entities that Support Boycotts of Other Universities or Nations
New York Senate Bill 6438-2013 passed today and now moves to the Assembly, taking its First Amendment problems with it.
The bill, in section 2 provides:
No college in this state may use state aid provided directly to such college to: fund an academic entity, provide funds for membership in an academic entity or fund travel or lodging for any employee to attend any meeting of such academic entity if such entity has issued a public resolution or other official statement or undertaken an official action boycotting a host country or higher education institutions located in such country.
Section 3 extends the penalty to a deprivation of all funds:
Notwithstanding any law to the contrary, no college shall be eligible for state aid during the academic year that such college is in violation of subdivision two of this section.
Like many laws, Bill S6438-2013 little sense without understanding its context. In December, the American Studies Association membership adopted a Resolution stating that it
endorses and will honor the call of Palestinian civil society for a boycott of Israeli academic institutions. It is also resolved that the ASA supports the protected rights of students and scholars everywhere to engage in research and public speaking about Israel-Palestine and in support of the boycott, divestment, and sanctions (BDS) movement.
The resolution was widely reported, with an excellent piece by Elizabeth Redden on Inside Higher Ed; an article concentrating on the reactions by Peter Schmidt, and nuanced posts by "Claire Potter on Tenured Radical" discussing her own changing views, most recently here.
In any discussion of the bill's constitutionality, proponents will most likely be relying on Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), decided by the United States Supreme Court in 2006. Rumsfeld v. FAIR involved the "Solomon Amendment" passed by Congress requiring law schools to allow the military to recruit for lawyers the same as any other employers, a statute thought to be necessary because a number of law schools prohibited employers from recruiting unless the employers had a non-discrimination policy that included sexual orientation. Like S6438-2013, the federal Solomon Amendment specified "that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds." The law schools challenged the Solomon Amendment arguing that it infringed their First Amendment freedoms of speech and association. The law schools lost - - - unanimously (Justice Alito recused himself; the 8 other Justices joined the opinion by Chief Justice Roberts upholding the constitutionality of the law).
Importantly, in Rumsfeld v. FAIR, the Court rejected the notion that the doctrine of "unconstitutional conditions" applied. On the Court's view, the universities were not faced with an untenable choice - - - surrending their free speech and association rights in exchange for funding - - - because the government could directly mandate that the universities allow the military to recruit on the same terms as other employers. The Solomon Amendment, according to the Court, "neither limits what law schools may say nor requires them to say anything."
In the Court's most recent unconstitutional conditions case, Agency for International Development v. Alliance for Open Society, the Court did declare unconstitutional a Congressional statute requiring funding recipients to have an "anti-prostitution pledge." Again, the opinion was authored by Chief Justice Roberts, but this time over a dissent by Justice Scalia (joined by Thomas). The fact that the pledge was compelled speech was central.
In arguments surrounding the constitutionality of the NY Bill under the First Amendment, challengers would most likely rely upon NAACP v. Claiborne Hardware Co., in which the Court in 1982 held that damages for a boycott of white merchants in Mississippi could not be awarded against the NAACP consistent with the First Amendment. Claiborne recognized that the "peaceful" aspects of the boycott were a form of speech or conduct that is ordinarily entitled to protection under the First Amendment.
Thus, it would seem that the state could not directly prohibit a boycott. The argument would then be that because the state could not directly prohibit participation in a boycott, it would be an unconstitutional condition to make recipients forgo a constitutional right as a condition of receiving funding.
Sunday, January 26, 2014
Tenth Circuit Holds Colorado's Campaign Finance Scheme Unconstitutional as a Violation of Equal Protection
In its opinion this week in Riddle v. Hickenlooper, a panel of the Tenth Circuit unanimously held unconstitutional a differential contribution limit in the Colorado campaign finance scheme as violating the Equal Protection Clause.
The scheme, deriving from Colorado's Amendment 27 and statutes, provided that the campaign limit for contributions to candidates who ran in a primary election, even if unopposed, was $200 per person and there was an additional campaign limit of $200 per person for all candidates running in the general election. This meant that a candidate who was a member of a major party holding a primary had a per person limit of $400, while minor party and write-in candidates had a per person limit of only $200.
The panel held that because "the statutory classification affects a fundamental right, the right to political expression" the correct equal protection standard should be a "standard that is at least as rigorous as the standard applied under the First Amendment," and that under standard the classification fails. The panel found that the anti-corruption (or appearance of corruption) governmental interest was "sufficiently important," but the means chosen "are ill-conceived to advance these interests."
The statutory classification might advance the State’s asserted interest if write-ins, unaffiliated candidates, or minor-party nominees were more corruptible (or appeared more corruptible) than their Republican or Democratic opponents. But the Defendants have never made such a suggestion. In the absence of a link between the differing contribution limits and the battle against corruption, the means chosen are not closely drawn to the State’s asserted interest.
Concurring, Judge Gorsuch began by stating:
I confess some uncertainty about the level of scrutiny the Supreme Court wishes us to apply to this contribution limit challenge, but I harbor no question about the outcome we must reach. My colleagues are surely right that, as applied, Colorado’s statutory scheme offends the Constitution’s equal protection guarantee, whatever plausible level of scrutiny we might deploy.
Interestingly, both the concurring opinion and the panel majority opinion, authored by Judge Bacharach, clearly rest their analysis on the Equal Protection Clause, and thus do not reach the First Amendment challenge. Nevertheless, First Amendment doctrine and precedent permeate the reasoning. Yet given that the Colorado campaign finance scheme results in such an untenable classification, the conclusion of an equal protection classification seems the right one.
Friday, January 24, 2014
In its overdue opinion in The Evergreen Association, Inc. d/b/a Expectant Mother Care Pregnancy Centers v. City of New York, a divided panel of the Second Circuit ruled that only one of the three major provisions of NYC's Local Law 17 seeking to mandate disclosures by pregnancy crisis centers was constitutional.
Recall that in July 2011, a federal district judge enjoined all of Local Law 17 finding that the disclosure provisions did not survive strict scrutiny under the First Amendment, and the Second Circuit heard oral arguments in the appeal 16 months ago. Meanwhile, the Fourth Circuit considered two similar laws seeking to compel disclosures by pregnancy crisis centers, issuing two en banc opinions in 2013. The en banc Fourth Circuit in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore reversed the granting of a preliminary injunction finding fault with the application of the summary judgment standard by the district judge. The en banc Fourth Circuit in Centro Tepeyac v. Montgomery County, 722 F.3d 184 (4th Cir. en banc), affirmed a finding that one of the mandated disclosures was constitutional and the other was not.
The underlying problem that the local laws intended to address is the existence of "crisis pregnancy centers" that arguably appear to be medical offices but are anti-abortion counseling centers. The solutions that the local laws proposed were various "disclosures" by the centers. In the case of Local Law 17, the disclosures were three:
- whether or not they have a licensed medical provider on staff (the “Status Disclosure”);
- whether or not they provide or provide referrals for abortion, emergency contraception, or prenatal care (the “Services Disclosure”);
- that “the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed provider” (the “Government Message”)
The Second Circuit upheld only the first, the "Status Disclosure."
The Second Circuit's opinion declined to decide whether the disclosures merited strict scrutiny or the lesser standard of intermediate scrutiny, stating - - - not altogether convincingly - - - that its conclusions were the same under both standards.
The panel opinion did find that the government had a compelling interest for Local Law 17 and thus for all three disclosure provisions: protecting public health and protecting a woman's access to reproductive health care. But the panel found that only the status disclosure was "sufficiently tailored" to these interests. In finding that the status disclosure was narrowly tailored, this certainly met both strict and intermediate scrutiny standards.
As to the services disclosure, the panel considered the "context" of the mandated disclosure regarding whether the facility provides or provides referrals for abortion, emergency contraception, or prenatal care to be the "public debate over the morality and efficacy of contraception and abortion." Given this context of "public issues," the burden to justify the compelled speech is high. Not surprisingly, the panel found that the mandated services disclosure did not survive. However, the intermediate scrutiny analysis is less satisfying. Here's the entirety of the analysis:
Finally, we consider whether a different answer would obtain under intermediate scrutiny, which looks to whether the regulation at issue is not more extensive than necessary to serve a substantial governmental interest. While it is a closer question, we conclude that it would not, considering both the political nature of the speech and the fact that the Status Disclosure provides a more limited alternative regulation.
The panel's analysis on the government speech analysis is less explicit regarding the standard of review, emphasizing that the government message could be conveyed in many different ways.
In addition to the specific disclosures, the district judge had found that Local Law 17's definition of "pregnancy services centers" was unconstitutionally vague; a conclusion with which the Second Circuit panel majority disagreed. However, dissenting in part, one judge would have found all three provisions unconstitutional, arguing that the law is a "bureaucrat’s dream" containing "deliberately ambiguous set of standards guiding its application, thereby providing a blank check to New York City officials to harass or threaten legitimate activity."
The Second Circuit opinion largely agrees with the 2013 en banc Fourth Circuit's Centro Tepeyac v. Montgomery County, but the constitutional doctrine remains unclear. Given the complexities, and judicial decisions upholding other mandated disclosures in the reproductive rights realm, this remains a great subject for some scholarly intervention.
Thursday, January 23, 2014
Last Term, the United States Supreme Court's First Amendment docket was decidedly light. This Term, there are many First Amendment (and quasi-First Amendment) issues before the Court.
Recall last Term's First Amendment case - - - Agency for International Development v. Alliance for Open Society - - - the "prostitution pledge" case - - - which we discussed here. The relatively brief 15 page majority opinion authored by Chief Justice Roberts over a dissent by Justice Scalia (joined by Thomas). The opinion resolved a split in the circuits and added a doctrinal clarification (or perhaps merely a wrinkle) to compelled speech/ unconstitutional conditions doctrine, but cannot fairly be called a landmark case.
This Term, there is a bounty of First Amendment cases before the Court.
In alphabetical order, they include:
- Conestoga Wood Specialties Corporation v. Sebelius & Sebelius v. Hobby Lobby Stores, Inc. Perhaps the most contentious cases this Term are these religious-based challenges to the contraception “mandate” of the Affordable Care Act. The cases (and similar cases pending throughout the federal courts) involve the Religious Freedom Restoration Act, which is intertwined with First Amendment Free Exercise principles and doctrine. Our discussion of the grant of certiorari is here, with links to the circuit court opinions; and a survey of recent commentaries is here. Oral argument is scheduled for March 25.
- Harris v. Quinn
The well-established rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities) is the subject of this First Amendment challenge in the employment context of home health care providers. Our extensive coverage of the issues is here. Oral arguments were held January 21 and our analysis is here.
- Lane v. Franks
The Eleventh Circuit summarily applied Garcetti v. Ceballos in this First Amendment challenge to an alleged retaliatory termination of a public employee for revealing misconduct and testifying at the criminal trials of a former state senator. Our discussion of the grant of certiorari January 17 is here.
- McCullen v. Coakley
This is a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics. The First Circuit had rejected both the facial and as-applied challenges. Oral arguments were held January 15 and our analysis is here.
- McCutcheon v. Federal Election Commission
This campaign finance case is a First Amendment challenge to the aggregate limits under the Bipartisan Campaign Reform Act, or BCRA, which cap the total amount that a contributor can give to candidates, political parties, and political committees. Oral arguments were held October 8, 2013 and our analysis is here.
- Susan B Anthony List v. Driehaus
This case is a challenge to an Ohio election law prohibiting false statements. As we explained when the Court granted certiorari earlier in January, the case involves both the First Amendment and Article III, with the Sixth Circuit having determined that the case was not ripe and thus not reaching the First Amendment challenge.
- Town of Greece v. Galloway This case is an Establishment Clause challenge to New York town's practice of opening its council meetings with prayers, the large majority of which have been Christian. The Second Circuit had held that the town council's practice "impermissibly affiliated the town with a single creed, Christianity." The Solicitor General filed a brief supporting the town. Oral arguments were held in early November and our analysis is here.
- United States v. Apel
Whether or not the First Amendment is relevant in this case involving a protest outside military installation is part of the issue. The Ninth Circuit did not reach the First Amendment issue, but decided the case on the particularities of statutory interpretation and the property in question, reversing the defendant's conviction. At the oral argument in early December, ConLawProf Erwin Chemerinsky, arguing for Apel, consistently raised the First Amendment and was consistently rebuffed, as we discussed here.
- Wood v. Moss
Whether or not the First Amendment is relevant in this case (as in Apel, above) is also an issue. The central arguments involve qualified immunity, but questions of viewpoint discrimination arise given that there were different "protest zones" for pro-Bush and anti-Bush demonstrators. Oral argument is scheduled for March 26, 2014.
ConLawProfs teaching First Amendment this semester have much that could be incorporated in their courses regarding this Court's Term. And First Amendment watchers, scholars, and practitioners may see some important changes.
Tuesday, January 21, 2014
The Supreme Court heard oral arguments today in Harris v. Quinn, the case testing whether fair-share fees for non-union in-home care providers in the Illinois Medicaid program violate the First Amendment. (Our argument preview is here.) The Court in Abood v. Detroit Board of Education previously upheld public-sector fair-share fees to support a union's collective bargaining activities in the interests of preventing free-riders on a union's activities and promoting workplace peace. But this case put Abood directly in the Court's cross-hairs, as the petitioners argued to overturn the decades-old case.
If today's arguments are any indication, that seems an unlikely result.
Still, it's not entirely clear what the Court will do with the case. For one thing, there was just a lot of confusion about it. For example, on the question whether the union's work here (in the state's Medicaid program) represented advocacy on a public matter (thus strengthening the non-members' claims), no clear position emerged. Here's an exchange between Justice Kagan and the attorney for the petitioners (the home-care workers):
Justice Kagan: But you're not objecting, I think, to the union as a whole. What you're objecting to is an individual employee having to support that activity. The scale is no different. It's an individual employee.
Mr. Messenger: Yes, it's an individual employee being forced to support that expressive activity. So the question becomes: What expressive activity are they being forced to support? And when you're speaking of changing an entire government program, for example, Medicaid rates across the board, that is a matter of public concern. That is a matter of lobbying or political --
Justice Kagan: But that's exactly what the individual employee in Justice Scalia's hypothetical is arguing for. He wants wage rates to be changed across the board. He knows they're not going to be changed just for him. He wants higher wage rates.
Mr. Messenger: But, again, under this Court's private--under the public conern test, an individual simply speaking to that usually does not rise to a matter of public concern.
Chief Justice Roberts jumped in during the respondents' argument to underscore the problem. He made a point that under the state's position one union's advocacy for increased Medicaid rates might be an issue of public concern (as in a teacher's union), but another union's advocacy for the same incrased Medicaid rates is a private employment issue (as here), suggesting that that can't be.
Justice Breyer quickly rescued the respondents and outlined the opposite position--"Collective bargaining with any employer, meat packers, hours, safety depends on hours, always can involve public interest questions"--arguing that the Court shouldn't be in the business of this kind of line-drawing.
The one to watch here may be Justice Kennedy. He suggested at one point that nearly all of this union's activities were public matters, but at a different point that the Court's jurisprudence provides (at least) a partial solution: non-members can be compelled to pay fair-share fees for those activities that might involve free-riding, but not for other activities for which they don't receive a benefit. (Justice Scalia piped in to remind us that under the Court's jurisprudence non-members can opt-out of fees for benefits that they don't enjoy.) The problem here may be sorting out which kind of benefit is which.
Justice Alito underscored this problem when he pressed the state on a hypothetical non-union teacher who has to pay a fair-share fee to support the union's advocacy of the tenure system. But the teacher disagrees with the union's position on this, so has to pay another organization an equal amount to represent his or her views--just to counteract the advocacy supported by his or her compelled fair-share fee. Justice Kennedy posed a similar hypo. The state responded that here the fair-share fee supports union activity that benefits all workers, but it's not clear that a majority bought it, or, if they did, that they weren't also thinking beyond the narrow facts of this case.
The case also involved several puzzles, both practical and jurisprudential, that seem to put the petitioners' positions at odds with common sense and doctrine. Here's Justice Sotomayor raising one with the petitioners:
Justice Sotomayor: Is there a problem for the State to say--the union, to organize has a certain amount of costs. So putting aside fair representation laws, could the State say, this is what we're going to pay police officers, 100 dollars, but we're going to pay union members 110 to reimburse them for the cost of negotiation. Would that be OK?
Mr. Messenger: Yes.
Here's Justice Kagan raising another:
Justice Kagan: Because here's the thing: That in the workplace we've given the government a very wide degree of latitude and there's much that the government can do. It can fire people. It can demote people for things that they say in the workplace, not for things that they say as a citizen . . . .
So you're saying, well, the government can punish somebody for saying something, but the government in the exact same position cannot compel somebody to say something they disagree with. And I want to know what's the basis for that distinction, which it seems to me is just as hard as -- as if you were answering under the petition clause.
There was also significant confusion about whether the state's flexibility in negotiating wages--and therefore why the union's participation is necessary. (If the wages are set--by the Medicaid program, for example--what benefit does the union bring?)
Justices Scalia and Alito both expressed some skepticism over the state's intent in requiring fair-share, Justice Alito suggesting that it was Governor Blagojevich's reward to the union for a huge campaign contribution.
In rebuttal, Justice Scalia pressed the petitioners about free-riding and what their position could do to unions; Justice Kagan pressed them about what their position would do to "thousands and thousands" of public contracts that include fair-share provisions. Justice Kagan earlier put a finer point on the case's significance and with the help of respondents' counsel told us just what's at stake:
Justice Kagan: So, Mr. Messeenger, even on the compulsory fees, I mean, what strikes me is that this is -- I'm just going to use the word here, it is a radical argument. It would radically restructure the way any workplaces across this country are -- are run.
And let me just put it to you this way and ask if you agree with this -- with this statement. Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State and people have disagreed. Some States say yes, some States say no. It raises considerable heat and passion and tension, as we recently saw in Wisconsin. And -- but, you know, these are public policy choices that States make.
And is it fair to say that what you're suggesting here, your argument, is essentially to say that for 65 years, people have been debating the wrong question when they've been debating that, because, in fact, a right-to-work law is constitutionally compelled?
Mr. Messenger: In the public sector, yes . . . .
In his satirical column for the New Yorker, humorist Andy Borowitz (pictured below) writes:
NEW YORK (The Borowitz Report)—President Obama is about to issue an executive order that would force all Americans to purchase a monthly supply of marijuana, the Fox News Channel reported today.
Borowitz's "reports" of fake news have been mistaken for true, perhaps because they often have a basis, albeit quite slanted, in reality. For example, this report springboards from President Obama's remarks quoted in a lengthy profile by David Remnick in The New Yorker. (This is not satirical and is definitely worth a read).
It also springboards from the discourse surrounding the ACA ("Obamacare") which the Court upheld as constitutional in NFIB v. Sebelius.
ConLawProfs looking for our own "springboards" for an interesting in-class discussion could definitely use the "marijuana mandate," especially when discussing Gonzales v.Raich, 545 U. S. 1 (2005).
And perhaps the springboarding could incorporate the First Amendment (and RFRA) challenges to the so-called "contraceptive mandate" now before the Court in Hobby Lobby, Inc. and Conestoga Wood Specialties, Corporation. It might be an interesting to contemplate the relevance of Employment Division, Dept. of Human Resources of Oregon v. Smith in this light.
This could make for a fun discussion.
Sunday, January 19, 2014
The Supreme Court will hear oral arguments on Tuesday in Harris v. Quinn, the case testing whether a state law requiring non-union homecare personal assistants to pay union dues for the assistants' union's colleective bargaining activities violates the First Amendment. The case threatens the decades-long rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities), under Abood v. Detroit Board of Education. The Court presaged this threat two Terms ago in SEIU v. Knox.
Here's a selection from my preview in the ABA Preview of United States Supreme Court Cases, with permission:
The Illinois Department of Human Services operates two Medicaid-waiver programs that subsidize the costs of home-based assistants for disabled individuals or patients who might otherwise face institutionalization. The programs allow Medicaid patients to live in their own homes with the help of personal assistants. One of these programs, the Home Services Program, is administered by the Division of Rehabilitative Services; the other program, the Home Based Support Services Program, is administered by the Division of Developmental Disabilities. The lower court and the parties call these programs the “Rehabilitation Program” and the “Disabilities Program,” respectively.
Under the Rehabilitation Program, a patient works with a counselor to develop an individual service plan. The plan specifies “the type of service(s) to be provided to the patient, the specific tasks involved, the frequency with which the specific tasks are to be provided, the number of hours each task is to be provided per month, [and] the rate of payment for the service(s).” The service plan must be certified by the patient’s physician and approved by the state. The patient is then free to select almost any personal assistant who meets the qualifications related to work experience, training, and skills set by the state. The personal assistant signs an employment agreement directly with the patient, but the terms of the agreement are set by the state. The state also sets wages and pays the personal assistant, withholding Social Security and federal and state taxes. (Personal assistants are also sometimes called homecare providers.)
The Disabilities Program functions similarly, although the record is less developed as to the specific relationship between a personal assistant and the state.
In the mid-1980s, personal assistants in the Rehabilitation Program sought to unionize and to bargain collectively with the state. The State Labor Relations Board found that it lacked jurisdiction over the personal assistants, however, because the state was not their sole employer. As a result, personal assistants could not unionize.
In 2003, the state amended the Illinois Public Labor Relations Act to designate “personal care attendants and personal assistants working under the Home Services Program” as state employees for the purpose of collective bargaining. Governor Rod Blagojevich then issued an executive order directing the state to recognize an exclusive representative of Rehabilitation Program personal assistants if they designated one by a majority vote and to engage in collective bargaining over all employment terms within the state’s control. The Rehabilitation Program personal assistants later voted to designate SEIU Healthcare Illinois & Indiana as their collective bargaining representative with the state. The union and the state negotiated an agreement that set pay rates, created a health benefits fund for personal assistants, and established a joint union-state committee to develop training programs. The agreement also contained a “fair share” provision that required all personal assistants who were not members of the union “to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.”
In 2009, Governor Pat Quinn issued an executive order directing the state to recognize an exclusive representative for the Disabilities Program personal assistants if they designated one by majority vote. A majority of Disabilities Program personal assistants, however, rejected union representation. (This vote was not necessarily the final decision on representation. Under state law, a union can request a new vote in the future and can even bypass a vote altogether if it collects a sufficient number of union cards from the personal assistants.)
Personal assistants in both programs sued. Non-union personal assistants in the Rehabilitation Program claimed that the fair-share fees that they were required to pay violated the First Amendment by compelling them to associate with the union. Personal assistants in the Disabilities Program claimed that they were harmed by the mere threat of an agreement requiring fair-share fees.
The district court dismissed the Rehabilitation Program personal assistants’ case on the merits, and it dismissed the Disabilities Program personal assistants’ case because they lacked standing and because their case was not ripe. The United States Court of Appeals for the Seventh Circuit affirmed. (The Seventh Circuit recognized, however, that the Disabilities Program personal assistants’ case could become ripe in the future.) This appeal followed.
Compulsory union fees, or fair-share fees, implicate the First Amendment because they represent a form of compelled expressive association. In other words, fair-share fees require non-union-members to support union activities and expression with which they disagree. In particular, the fees require non-members to pay for union expression (in the form of fair-share fees to support collective bargaining), and thus to associate with that expression, even if they do not support it or wish to associate with it.
Still, the Supreme Court has long upheld requirements that non-union members financially support the costs of collective bargaining. Thus in Railway Employees’ Dep’t v. Hanson, 351 U.S. 225 (1956), the Court declined to enjoin a “union shop” agreement between a railroad company and a union that required all employees (whether unionized or not) to pay union dues as a condition of employment—even though a state constitutional “right to work” provision outlawed it. The Court held that the federal Railway Labor Act permitted the union shop agreement and superseded the state constitutional provision. The Court held that the federal act was justified by Congress’s interest in supporting “industrial peace and stabilized labor-management” and in distributing the costs of collective bargaining to all those who benefited from it. The Court upheld the federal act as an exercise of Congress’s power under the Commerce Clause, and ruled that it did not violate the First Amendment insofar as it permitted compulsory fees for collective bargaining activities.
Later, in International Association of Machinists v. Street, 367 U.S. 740 (1961), the Court read the Railway Labor Act not to extend to mandatory fees to finance the campaigns of candidates for federal and state offices. The Court ruled that while the act may authorize mandatory fees for collective bargaining activities (for the same reasons in Hanson), the act would violate the First Amendment if it authorized mandatory fees for political purposes with which an employee disagreed.
Later yet, the Court in Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977), drew on the interests in Hanson and Street to uphold a state law that allowed an “agency shop” clause in a collective bargaining agreement in the public sector. The Court ruled that the First Amendment did not prohibit an “agency shop” clause in an agreement between the Detroit Board of Education and its teachers’ union that required non-unionized teachers to financial support the union’s collective bargaining activities. The Court drew upon the government interests in Hanson and Street—supporting “industrial peace and stabilized labor-management” and avoiding “free riders” who refuse to contribute to the union while obtaining the benefits of union representation—and held that they were sufficient to justify the intrusion on First Amendment associational rights.
More recently the Court has chipped away at these principles. Most recently, in Knox v. SEIU, 132 S. Ct. 2277 (2012), the Court signaled that it was prepared to reconsider them entirely. In particular, the Court took aim at the “free rider” justification for “agency shop” agreements, saying that it was “generally insufficient to overcome First Amendment objections” and that it “represents something of an anomaly.” The Court left Abood intact, however, even if it also all but foretold Abood’s demise.
The parties frame their arguments against this history.
Pamela Harris, a personal assistant homecare provider who represents the class of personal assistants who are the petitioners in this case, argues first that Abood should be overruled, because the compulsory fees upheld in the case do not meet the “exacting scrutiny” applicable to compelled associations. She claims that Abood was based on a flawed interpretation of earlier case law, that it relied upon an anomalous justification, and that the compulsory fees upheld in Abood were not necessary for the exclusive representation by the union. In particular, Harris says that the Court borrowed the “labor peace” justification for compulsory fees from earlier case law explaining Congress’ authority to invalidate state laws prohibiting union-shop agreements under the Commerce Clause (and having nothing to do with the First Amendment). She claims the Court wrongly applied this justification to its First Amendment, compulsory association analysis in Abood. The net result, she says, is that the Court in Abood wrongly held that “labor peace” (a justification for federal laws under the Commerce Clause) was sufficient to justify compulsory union dues (in the face of the First Amendment). (Harris says that Justice Powell, joined by Chief Justice Burger and Justice Blackmun, recognized this problem in his concurrence in Abood.) Moreover, Harris contends that Abood’s “free rider” rationale for compulsory fees is an “anomaly,” and “generally insufficient to overcome First Amendment objections” (quoting Knox.) And she says that compulsory fees are not a necessary incident of exclusive representation (again drawing on Knox). For these reasons, Harris claims that Abood should be overruled.
Harris argues next that even if the Court declines to overruled Abood, it should sharply limit the case to its narrow facts. She says that Abood should apply only when the government directly supervises individuals in its workplace and when union representation does not involve matters of public concern. Harris claims that neither condition is satisfied here. She says that unlike the public-school teachers in Abood, Illinois homecare providers are not managed by the state (they are managed by the individuals they serve), and that homecare providers therefore do not fall under the Abood rationale. Moreover, she says that the personal assistants’ expressive association through the union is on a matter of public concern, that is, the operations of the state’s Medicaid program, and not merely the terms and conditions of their employment. Harris contends that the state therefore has no “labor peace” rationale for imposing mandatory fees. And Harris contends that in any event the compulsory fees are not necessary to any larger regulatory purpose, as required by Knox. She claims that if Abood were to allow compulsory expressive association here, it would allow the state to designate compulsory advocates to speak for others whose services are funded by a government program, including the medical industry and government contractors, among others—clearly an absurd result, she says.
Finally, Harris argues that personal assistants in the Disabilities Program are entitled to challenge the mandatory fees. Harris says that those providers need only show a substantial risk that they will be harmed. She claims that they did so, because Governor Quinn’s executive order substantially increases the risk that they will be forced to accept exclusive union representation, and to pay union fees.
The state argues that Abood should not be overruled. The state says that Abood follows from Hanson and Street, and that those decisions are rooted in the First Amendment. The state claims that Harris mischaracterizes those decisions as not relying on the First Amendment and “seek[s] to rewrite the many decisions that rely on [Hanson and Street] for their First Amendment analysis.” The state contends that the Court has relied on Abood’s First Amendment analysis in cases upholding mandatory bar dues (Keller v. State of California, 496 U.S. 1 (1990)), mandatory assessments for fruit producers to contribute to the costs of industry advertising (Glickman v. Wileman Brothers & Elliot, Inc., 521 U.S. 457 (1997)), and a mandatory student activity fees (Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000)). Moreover, the state says that Harris’s claims would threaten the long-held distinction between the government as regulator and the government as employer, because those claims treat the personal assistants’ speech as core political speech on matters of public concern (and not speech over the terms of their employment). (The state points to the Court’s cases on public employee speech, where the Court distinguishes between the government (relatively greater) interests as an employer regulating the speech of its employees and its (relatively lower) interests in regulating the speech of citizens in general, especially core political speech.) Finally, the state claims that Abood and related cases are entitled to stare decisis effect: it says that the Abood rule has not become unworkable, circumstances have not changed since Abood, and both public-sector unions and government have come to rely upon Abood.
Next the state argues that Harris is wrong to claim that its decision to negotiate exclusively with the union alone violates the First Amendment. The state contends that Harris’s argument is foreclosed by Minnesota State Board of Community Colleges v. Knight, 465 U.S. 271 (1984), which, by summary affirmance, sustained a state law granting public employees the right to negotiate through their exclusive representative. Moreover, the state says that granting exclusive representation to the union does not threaten the First Amendment rights of personal assistants, because personal assistants may decline to join the union.
The state argues that Harris’s proposal to limit Abood ignores and minimizes its vital interests. In particular, the state claims that it has an interest in promoting “industrial peace and stabilized labor-management relations” and the need to avoid free-riders. The state says that, contrary to Harris’s position, these interests are “vital” and well sufficient to justify fair-share fees for its employees in these programs that serve the state’s “most vulnerable citizens.” (The state argues that personal assistants are, indeed, its employees, even if they also answer in limited respects to the patients they serve. That’s because the state controls many of the terms and conditions of their employment.) For these reasons, the state claims that its system of collective bargaining satisfies the correct constitutional test, a balancing test (and not strict scrutiny, as Harris would have it.
(SEIU Healthcare Illinois & Indiana, the union that represents the personal assistants in the Rehabilitation Program, presents substantially similar arguments on the constitutionality of the fair-share fees.)
Finally, the state argues that personal assistants in the Disabilities Program have presented only a “hypothetical threat,” and not an injury ripe for adjudication. Moreover, the state says that the personal assistants in the Disabilities Program will not suffer any hardship if judicial resolution of their claim is postponed. (AFCSME Council 31 and SEIU Local 73, the unions that attempted to organize the personal assistants in the Disabilities Program, make substantially the same arguments on justiciability.)
Simply stated, this case puts front-and-center the decades-old balance the Court struck in Abood. The Court in that case ruled that fair-share fees do not violate the First Amendment, because the government had sufficiently weighty interests in labor peace and avoiding free-riders. But the Court has chipped away at this principle, most recently in Knox, where the Court went so far as to suggest that it was prepared to reconsider Abood. This case gives the Court that chance.
If the Court overturns Abood, or even if it limits that case, the ruling could deal a serious blow to public sector unions. That’s because fair-share fees are designed to ensure that every employee who gains the benefits of a union’s collective bargaining also shares in the costs of that collective bargaining. In this way, fair-share fees are designed to solve a basic collective action problem: if employees can gain the benefits of collective bargaining without paying the costs, no employee will pay the costs, and the benefits will eventually disappear for all, union or not. Without fair-share fees, public-sector unions would have to carry the weight of non-members without the benefit of their financial support. And with no personal financial incentive to join a union in the first place—why would an employee join a union and pay union dues if he or she could free-ride on the union’s collective bargaining activities?—public union membership and strength will almost surely plummet.
On the other hand, this case gives the Court an opportunity to recalibrate the balance between associational rights and the government’s interests in labor peace and avoiding free-riders—and to privilege the associational rights. In other words, the case gives the Court a chance to better protect the associational rights of non-members. Again, though, this would come at the expense of union strength and the collective bargaining power of all the personal assistants, union or not.
Still, the Court need not go so far. The Court could dodge a ruling on the status of Abood by distinguishing this case on its unique facts. For example, the Court could rule that personal assistants are not employees of the state, and that therefore the state’s interests in Abood do not apply. Or the Court could rule that the personal assistants seek to speak on a matter of pure public concern—lobbying for greater reimbursements under the state’s Medicaid program—and that therefore the mandatory fees warrant greater First Amendment scrutiny than in Abood. Such a ruling would obviously affect these litigants, and other employees and states like them, but it would not (necessarily) upset the basic principles in Abood.
The D.C. Circuit on Friday remanded a case challenging President Obama's ban on registered lobbyists serving on advisory committees. The case, Autor v. Pritzker, means that the district court will have a second crack at determining whether the ban violates the First Amendment. The ruling suggests, but does not conclude, that the D.C. Circuit thinks that it does.
Appellants in the case are federally registered lobbyists wishing appointment to an Industry Trade Advisory Committee, or ITAC, a type of advisory committee established under the Trade Act of 1974. There are sixteen industry-specific ITACs that provide information and advice to the President on trade issues reflecting the viewpoints of the industry. As a result, ITAC members include representatives from major corporations.
But President Obama moved to bar lobbyists from serving on ITACs and other advisory committees in order to change "the culture of special-interest access" in Washington. In particular, he directed "the heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees." This meant that the appellants couldn't serve on ITACs. Appellants sued, arguing that the ban violated the First Amendment--that service on an ITAC would require them to relinquish their free-speech rights.
The D.C. Circuit ruled that their complaint stated a First Amendment claim and that it shouldn't be dismissed. The court remanded the case for a determination of the First Amendment question.
The court distinguished Minnesota State Board for Community Colleges v. Knight. In that case, the Court held that a union's ability to exclude non-union-members from participation in "meet and confer" sessions with government employers did not violate the First Amendment. Here, in contrast, the court wrote that "any burden on Appellants' constitutional rights results directly from the government's decision to bar them from ITAC membership."
The court instead drew on the government-employee speech doctrine. It ruled that the lobbyist ban might work a deprivation of a valuable benefit, service on a congressionally created ITAC, at the expense of federally registered lobbyists' free-speech rights. In other words, the ban might violate the unconstitutional conditions doctrine.
The court remanded the case for a calculation under Pickering of the "balance between the interests of the [appellants] . . . and the interests of the State." The court wrote,
In doing so, the district court should ask the parties to focus on the justification for distinguishing, as the lobbyist ban does, between corporate employees (who may represent their employers on ITACs) and the registered lobbyists those same corporations retain (who may not). The court may also want to ask the government to explain how banning lobbyists from committee composed of representatives of the likes of Boeing and General Electric protects the "voices of ordinary Americans."
The United States Supreme Court has granted certiorari in Lane v. Franks, a case involving a public employee's First Amendment rights in the context of retaliation and raising questions about the interpretation of Garcetti v. Ceballos.
The Eleventh Circuit affirmed a summary judgment in favor of the employer, Central Alabama Community College in a brief opinion on its summary calendar, without oral argument, and designated the opinion "do not publish." But the Eleventh Circuit opinion nevertheless provides some very compelling facts.
Edward Lane was a probationary employee of the community college's program for at-risk youth, CITY. When he assumed his duties, he found that then-state representative Suzanne Schmitz was listed on CITY's payroll but was not reporting for work and had not otherwise performed tangible work for the program. He was warned by the college officials not to terminate the state representative, but he did so anyway. She filed a lawsuit challenging her termination, but more importantly, she was also being investigated by the FBI for fraud. Lane testified before a federal grand jury and -- pursuant to a subpoena -- testified at Schmitz's subsequent federal criminal trials in 2008 and 2009 for mail fraud and fraud involving a program receiving federal funds.
As an aside, a different Eleventh Circuit panel in 2011 reversed Schmitz's convictions for fraud regarding receiving federal funds because of prosecutorial misconduct, but affirmed her convictions for mail fraud. She is no longer in prison.
Meanwhile, Edward Lane, like all 29 probationary employees of CITY, was laid off in 2009 due to "budget cuts." However, Franks, as college president, then rescinded all the layoffs except two, including Lane.
Lane sued alleging a First Amendment violation. The district judge determined that Lane's speech was made pursuant to his official duties as CITY's Director, not as a citizen on a matter of public concern. The Eleventh Circuit had no trouble stating it reached the same conclusion.
Although the Eleventh Circuit was seemingly not troubled, interpretations of Garcetti have caused some consternation in the circuits. Recall the arguable circuit split between Bowie v. Maddox, from the DC Circuit (foreclosing the employee's claim) and Jackler v. Byrne, in the Second Circuit, allowing the employee's claim. The Court denied certiorari to these cases two years ago.
Stephen Bergstein, over at "Wait A Second!" has an excellent discussion of the legal landscape, including other cases that stress the employee's right to testify at trial, and the importance of the Court's grant of certiorari.
Certainly Lane v. Franks raises vexing issues of the First Amendment rights of employees after Garcetti and possible First Amendment protections for "whistleblowers." It is difficult to believe that misconduct by a state representative is not a "matter of public concern" although Lane obviously came by his knowledge in the course of his employment.
Saturday, January 18, 2014
In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.
Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:
The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.
January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)
In her opinion in Stuart v. Loomis, United States District Judge Catherine Eagles held the "speech and display" provisions of North Carolina's "The Woman‟s Right to Know Act" unconstitutional under the First Amendment. Recall that Judge Eagles entered a preliminary injunction against the statute's enforcement in October 2011.
The speech and display provision, North Carolina statute §90-21.85, passed by the legislature over the governor's veto, generally provided
that a woman undergo an ultrasound at least four hours before an abortion
that the physician or qualified technician working with the physician display the images produced from the ultrasound “so that the [patient] may view them,”
that the providers give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and
that the providers give “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”
In a nutshell, Judge Eagles ruled:
The Supreme Court has never held that a state has the power to compel a health care provider to speak, in his or her own voice, the state‟s ideological message in favor of carrying a pregnancy to term, and this Court declines to do so today. To the extent the Act is an effort by the state to require health care providers to deliver information in support of the state‟s philosophic and social position discouraging abortion and encouraging childbirth, it is content- based, and it is not sufficiently narrowly tailored to survive strict scrutiny. Otherwise, the state has not established that the speech-and-display provision directly advances a substantial state interest in regulating health care, especially when the state does not require the patient to receive the message and the patient takes steps to avoid receipt of the message. Thus, it does not survive heightened scrutiny.
One interesting aspect of Judge Eagles' opinion is her discussion of the Ninth Circuit's 2013 opinion in Pickup v. Brown, holding constitutional California's prohibition of sexual orientation change efforts (also known as sexual conversion or reparative therapy). Judge Eagles uses Pickup's analysis of medical speech, although noting that the court in Pickup ultimately concluded that the therapy in Pickup was conduct rather than speech. Here, North Carolina was "seeking to compel “doctor- patient communications about medical treatment,” in distinction to Pickup.
Judge Eagles also discusses the other claims, including due process and the state's request to sever the statute (which she finds untimely). It's a well-reasoned opinion that should survive if it is appealed.
Wednesday, January 15, 2014
Oklahoma District Judge Joe Heaton declined to find that the Oklahoma license plate violated the First Amendment or other constitutional rights of Keith Cressman in his opinion in Cressman v. Thompson.
Recall that the Tenth Circuit, in a divided opinion in June 2013, held that Cressman had made plausible allegations that the symbol on the Oklahoma license plate - - - arguably the “Sacred Rain Arrow” - - - could be the basis of a compelled speech claim, similar to the classic First Amendment case of Wooley v. Maynard.
But on remand, Judge Heaton found that the plate's image (pictured below and included as the final page on Judge Heaton's opinion) did not rise to the level of symbolic speech with a particularized message. Although stating that there should be a broad interpretation, Judge Heaton nevertheless held:
Viewed by itself, all the disputed image involves is a depiction of a Native American shooting a bow and arrow. There is nothing about the image that suggests the man is praying or that the arrow he is shooting is sacred. There is nothing about the image that suggests he is worried about rain, or the lack thereof. There is nothing about the image that suggests he believes in one god, no god, or several. It simply depicts a Native American shooting a bow and arrow.
Judge Heaton rejected the constitutional significance of the "other things" Cressman learned about the image through "research." He opined that the "fact that additional research is necessary to know or identify the message of which plaintiff complains is itself “strong evidence” that the image, as such, is not subject to constitutional protection." Further, the image on the license plate is "not an exact replica" of the "Sacred Rain Arrow” sculpture; the plate image has the arrow pointing at a 60 degree angle "a pose consistent with a variety of scenarios in which a bow and arrow might be used," while the sculpture "involves a Native American shooting his arrow almost vertically into the air, a pose which arguably is more suggestive of a spiritual motive or connection."
Additionally, Cressman did not object to the words "Native America" on the license plate, another distinction from Wooley v. Maynard's "Live Free or Die" New Hampshire license plate.
Judge Heaton's final paragraph expressed a lack of sympathy for Cressman along with a suggestion:
The absence of a constitutional violation does not, of course, mean that plaintiff lacks a practical solution to the problem as he sees it. Oklahoma provides a simple, inexpensive, and readily available alternative, in the form of a specialty plate, for those who object to any aspect of a standard plate, an option which plaintiff has exercised both before and since his concerns with the current standard license plate arose.
The United States Supreme Court heard oral arguments today in McCullen v. Coakley regarding a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics. Recall that the First Circuit had rejected both a facial and as-applied challenge to the statute. While the statute is a "time, place, manner" statute similar to others that had been upheld, throughout the arguments it often seemed as if the statute was being more than strictly scrutinzed.
The oral arguments evidenced several definitional disagreements. A pronounced dispute was the characterization of the actors and actions covered by the statute. Throughout his argument on behalf of the petitioners, Mark Rienzi described the activity as "peaceful, consensual conversations" and as "counseling." When Jennifer Grace Miller, representing the state of Massachusetts opened her argument by characterizing the activities of the petitioners as "protest" or abortion, Justice Scalia quickly interrupted, accusing her of distortion. Instead, he insisted, the petitioners "want to talk to the women who are about to get abortions and try to talk them out of it." For Scalia, the case is a "counseling case, not a - - - not a protest case." Later in the argument, he came back to the point:
I -- I object to you calling these people protestors, which you've been doing here during the whole presentation. That is not how they present themselves. They do not say they want to make protests. They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protestors?
This definitional disagreement arose a number of times, implicating the issue of whether the state had other, less restrictive, means to accomplish its goals. Justice Kennedy asked Ian Gershengorn, Deputy Solicitor General of the United States, supporting the state of Massachusetts, how many federal prosecutions there had been in Massachusetts, to which Gershengorn replied that the federal FACE Act is a "very different statute" aimed at "murder, arson, and chaining to doorways." Such definitional issues also implicated the activity being regulated by the statute as speech based on content or even viewpoint.
Importantly, the state action before the Court is a statute rather than an injunction, a point made apparent several times. The record before the Massachusetts legislature as well as analogies to other types of buffer zones - - - Justice Alito seemed especially preoccupied with labor - - - was an important focus. Justice Kagan raised protests around slaughterhouses by animal rights activists, noting to Mark Rienzi that it was raised in his brief for Petitioners, and saying that while he might have meant it to be "terrible," her reaction was that it might be sensible: "Just have everybody take a step back."
But how far back? The question of "why 35?" was explicitly asked by Justice Kagan of Jennifer Miller arguing for the state. Comparisons to the courtrrom space littered the arguments. Justice Ginsburg translated the distance into time, asking Mark Reinzi how long is one in the buffer zone. He replied, about "7 to 10 seconds":
JUSTICE GINSBURG: There's not much you're going to be able to do to have a conversation that will persuade people in 7 to 10 seconds.
MR. RIENZI: I respectfully disagree on that last point, Your Honor. The evidence in this record is that the -- the inability to speak with people close to the clinic has a dramatic effect on the Petitioners' ability to reach their audience. So if someone happens to be walking from the same side of the zone that you're standing on, you may have a shot.
Not surprisingly, Justice Thomas maintained his usual practice of foregoing verbalizing questions. More surprisingly, perhaps, Chief Justice Roberts did not ask any questions. His final "Thank you, counsel," provided no clues to his future deliberations on the case.
Friday, January 10, 2014
Supreme Court Grants Certiorari in Susan B Anthony Fund v. Driehaus on Ohio's Prohibition of False Election Statements
The United States Supreme Court granted certiorari today in Susan B Anthony Fund v. Driehaus raising an issue of ripeness as well as a First Amendment issue.
The background of the case involves "Obamacare," the pro-life/anti-choice Susan B Anthony (SBA) Fund, Congressperson Steve Driehaus (pictured) and Ohio statutes that prohibit false statements in campaigns.
As the Sixth Circuit, explained, during the 2010 campaign, the SBA List wanted to put up a billboard in then-Congressman Driehaus's district criticizing his vote in favor of the Act. The planned billboard read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." But the billboard never went up because the advertising company that owned the billboard space refused to put up the advertisement after Driehaus's counsel threatened legal action against it.
On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission against SBA List claiming that the advertisement violated two sections of Ohio's false-statement statute. The first states that "[n]o person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials . . . shall knowingly and with intent to affect the outcome of such campaign . . . [m]ake a false statement concerning the voting record of a candidate or public official." Ohio Rev. Code § 3517.21(B)(9). The second section prohibits posting, publishing, circulating, distributing, or otherwise disseminating "a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate." Id . § 3517.21(B)(10).
The Sixth Circuit held that the claim was not ripe, reasoning that it could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review." There was no hardship to SBA beacuse its speech was not chilled, according to the Sixth Circuit: the only speech involved was the billboard and SBA List's president appeared on television and promised to "double down" to make sure its message flooded the congressperson's district.
Thus, the Sixth Circuit did not reach the First Amendment issue regarding Ohio's prohibition of false speech. On this issue, the Court's opinion holding unconstitutional the criminalization of false statements in the federal "Stolen Valor" Act in its 2012 opinion in United States v. Alvarez is sure to assume center stage. The Court will have another chance to consider whether falsity should be categorically excluded from First Amendment protections of speech.
Sunday, December 29, 2013
Can a movie be tortious consistent with the First Amendment? That's the question raised by the complaint in DeGroat v. Cooper filed this week in federal court concerning the movie "Out of the Furnace."
The fictional movie directed by Scott Cooper (a defendant in the lawsuit) stars actor Christian Bale (pictured right) as Russell Blaze, who, when his younger brother "mysteriously disappears" and law enforcement seems inadequate and slow, takes the "law into his own hands" to find his missing brother.
The plot may seem prosaic, but importantly, the action is set in the Ramapo moutains of northern New Jersey amongst a particular group of people some of whom possess a particular surname that coincides with the plaintiffs. As a paragraph from the complaint alleges:
[in the movie] the young man becomes involved in an underground bare-knuckle fight ring leading to his murder by a violent and evil character, Harlan De Groat, who is the chief of a gang of “inbreds” living in the Ramapo Mountains in New Jersey. Harlan DeGroat, portrayed by Woody Harrelson, is the head of a criminal gang that is identified as the Jackson Whites; which gang is described as a community of “inbreds” that inhabits the Ramapo Mountains in New Jersey. Another gang member is identified as Dwight Van Dunk. The community is depicted as lawless, drug- addicted, impoverished and violent; and the members appear to be of some sort of racially mixed heritage.
As the complaint also states, the plaintiffs "are members of the Ramapough Lunaape Nation, a Native American ethnic group recognized as a tribe by the States of New Jersey and New York," and the "Ramapough Lunaape people were referred to locally as 'Jackson Whites,' a derogatory term with various origins ascribed to it, none of them complimentary." Moreover, "DeGroat and Van Dunk are well known common surnames among the Ramapough Lunaape Nation, and have been for two hundred years or so."
The claims for relief include defamation, false light, and negligent infliction of emotional distress.
The response by Cooper and "Relativity Media," will surely include a First Amendment defense.
Among the cases that will be important is Time, Inc, v. Hill, decided by the Supreme Court in 1967, involving Time's discussion of a play "The Desperate Hours" in which the Time magazine article stated that the play related to a tragedy suffered by Hill and his family. The Court ruled against James Hill - - - who was represented by future US President Richard Nixon - - - reversing the jury verdict in the family's favor while discussing the relationships between "fictionalization" and the First Amendment.
To the extent it is based in fact, an interesting comparison is journalist Ben McGrath's 2010 article, "Strangers on the Mountain" published in The New Yorker. McGarth's piece centered upon the Ramapo Mountains, the people who live there, including the DeGroat family and so-called "Jackson Whites" and "Rampaough Indians," and a variety of legal issues, including criminal and environmental.
Yet it would seem that "Out of the Furnace" has a strong First Amendment claim unless the film loses its fictional patina, a prospect that seems unlikely.
Friday, December 27, 2013
Federal District Judges Dismisses ACLU Complaint Regarding Government Collection of Telephone Metadata
In a Memorandum and Order today, federal judge William J. Pauley for the United States District Court of the Southern District of New York, granted the government's motion to dismiss in American Civil Liberties Union v. Clapper.
The judge rejected both the statutory and constitutional claims by the ACLU that the NSA's bulk telephony metadata collection program as revealed by Edward Snowden is unlawful.
The tone of the opinion is set by Judge Pauley's opening:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse ﬁlaments connecting al-Qaeda.
As to the constitutional claims, Judge Pauley specifically disagreed with Judge Leon's recent opinion in Klayman v. Obama regarding the expectation of privacy under the Fourth Amendment. For Judge Pauley, the "pen register" case of Smith v. Maryland, decided in 1979, has not been overruled and is still controlling:
Some ponder the ubiquity of cellular telephones and how subscribers’ relationships with their telephones have evolved since Smith. While people may “have an entirely different relationship with telephones than they did thirty-four years ago,” [citing Klayman], this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court’s ﬁnding that a person has no subjective expectation of privacy in telephony metadata. . . . .Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.
For Judge Pauley, the ownership of the metadata is crucial - - - it belongs to Verizon - - - and when a person conveys information to a third party such as Verizon, a person forfeits any right of privacy. The Fourth Amendment is no more implicated in this case as it would be if law enforcement accessed a DNA or fingerprint database.
The absence of any Fourth Amendment claim means that there is not a First Amendment claim. Any burden on First Amendment rights from surveillance constitutional under the Fourth Amendment is incidental at best.
Judge Pauley's opinion stands in stark contrast to Judge Leon's opinion. In addition to the Fourth Amendment claim, Judge Pauley deflects the responsibility of the judicial branch to resolve the issue. Certainly, the judiciary should decide the law, but "the question of whether that [NSA surveillance] program should be conducted is for the other two coordinate branches of Government to decide." Moreover, Judge Pauley states that the "natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program," a balancing rejected by Judge Leon. Given these substantial disagreements, the issue is certainly on its way to the Circuit Courts of Appeal, and possibly to the United States Supreme Court.
December 27, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, Opinion Analysis, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)
Thursday, December 19, 2013
In case you never heard of Duck Dynasty, here's the Wikipedia scoop:
Duck Dynasty is an American reality television series on A&E. It shows the lives of the Robertson family, who became wealthy from their family-operated business, Duck Commander, operated in West Monroe, Louisiana, which makes products for duck hunters, primarily the duck call named Duck Commander. The Robertson men, brothers Phil, Si, and Phil's sons Jase, Willie, and Jep, are known for their long beards. The business began in a family shed, where Phil Robertson spent 25 years making duck calls from Louisiana cedar trees. His son Willie is now the CEO of the company. The family was previously featured on the series Benelli Presents Duck Commander and its spin-off Buck Commander, which still airs on the Outdoor Channel.
The show has broken several ratings records on both A&E and cable television as a whole; the fourth season premiere drew 11.8 million viewers, the most-watched nonfiction cable telecast in history.
The constitutional doctrine of "state action" comes into play because some - - - including Louisiana Governor Bobby Jindhal - - - are discussing the suspension as a First Amendment issue. A&E, to again make use of Wikipedia, is a cable and satellite television station that is "a joint venture between the Hearst Corporation and Disney–ABC Television Group."
Of course, the text of the First Amendment begins "Congress shall make no law" and it is incorporated to the states through the due process clause of the Fourteenth Amendment, beiginning "No State Shall," thus textually expressing the doctrine of state action. It is not that nongovernmental entities are never subject to the First Amendment as shown by the classic case of Marsh v. Alabama decided by the United States Supreme Court in 1946 and involving the "company town" of Chickasaw. The Court there rejected the claim by Gulf Shipbuilding Corporation that it "owned" the town and could therefore prohibit the distribution of literature by Jehovah's Witnesses. There are subsequent cases in which the Court has held that a quasi-private entity is subject to constitutional contraints based on a number of factors. (Law students needing a quick refresher might enjoy a CALI Lesson on state action.)
But in the case of A&E, there is little, if any, support for a finding that A&E could be fairly called a governmental actor and thus the First Amendment is simply inapplicable.
And the First Amendment will also have little, if anything, to do with A&E's decisions about the series entering its fifth season:
Wednesday, December 18, 2013
The anticipated report from a panel of presidential advisors - - - Richard Clarke, Michael Morell, Peter Swire, and ConLawProfs Geoffrey Stone and Cass Sunstein - - - has just been released from The White House. It contains 46 recommendations, detailed in the Executive Summary and later discussed in the report.
Occuring amidst significant problems, such as the recent federal district judge's opinion casting doubt on the constitutionality of the collection of metadata from Verizon and the Edward Snowden revelations, the report concludes that the "current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy, and civil liberty." But the report recognizes that government might need such metadata, and therefore recommends that it be held by "private providers or by a private third party." The report also recommends a series of changes at NSA, including having the Director be a "Senate-confirmed position" and suggesting that the Director be a civilian (at least next time).
There is some interesting constitutional analysis and rhetoric in the report. For example, under "Principles," the first one is "The United States Government must protect, at once, two different forms of security: national security and personal privacy." How should these interests be balanced? The report, quite interestingly, says this:
It is tempting to suggest that the underlying goal is to achieve the right “balance” between the two forms of security. The suggestion has an important element of truth. Some tradeoffs are inevitable; we shall explore the question of balance in some detail. But in critical respects, the suggestion is inadequate and misleading.
Some safeguards are not subject to balancing at all. In a free society, public officials should never engage in surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an unfair competitive advantage; or to benefit or burden members of groups defined in terms of religion, ethnicity, race, or gender. These prohibitions are foundational, and they apply both inside and outside our territorial borders.
The purposes of surveillance must be legitimate. If they are not, no amount of “balancing” can justify surveillance. For this reason, it is exceptionally important to create explicit prohibitions and safeguards, designed to reduce the risk that surveillance will ever be undertaken for illegitimate ends.
Certainly, there is much more to glean and analyze from the 300 plus page report, but some of the reasoning already seems noteworthy.
Saturday, December 14, 2013
In a 91 page opinion in Brown v. Buhman, federal district judge Clark Waddoups has concluded that Utah's anti-bigamy statute is partially unconstitutional.
The statute, Utah Code Ann. § 76-7-101, provides:
- (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book ) and are represented by Professor Jonathan Turley, who blogs about the case here.
The judge's scholarly opinion includes a discussion of Edward Said's groundbreaking book Orientalism as a critique of the well-known passage in the United States Supreme Court’s 1879 decision in Reynolds v. United States upholding the criminalization of polygamy by reasoning, in part, that "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people."
Judge Waddoups considers both the due process challenge (applying Washington v. Glucksberg) and the free exercise challenge (applying Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah).
In the due process analysis, the judge specifically found
there is no “fundamental right” to polygamy under Glucksberg. To phrase it with a “careful description” of the asserted right [citations omitted], no “fundamental right” exists to have official State recognition or legitimation of individuals’ “purported” polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State. The fundamental right or liberty interest that was under consideration in Glucksberg is instructive for the analysis of whether the asserted right to polygamy is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”
The judge also found that the criminalization of what it called the "religious cohabitation" portion of the statute did not rise to the level of a fundamental right, extensively discussing Lawrence v. Texas and the Tenth Circuit's limiting interpretation of Lawrence.
However, the judge did find that "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
Complementing this conclusion regarding discriminatory enforcement, the judge's free exercise of religion analysis concludes that while the Utah statute may be facially neutral, the cohabitation prong is not "operationally neutral" and not of general applicability. The judge therefore applied strict scrutiny to the cohabitation prong and easily concluded the statute failed.
As an alternative free exercise analysis, the judge reasoned that the cohabitation prong also merited strict scrutiny because it involved a "hybrid rights" analysis under Employment Division, Department of Human Resources of Oregon v. Smith (1990), given the claims of due process, but also claims that the judge did not extensively analyzes such as free association, free speech, establishment, and equal protection.
Thus, the judge concluded the cohabitation prong of the statute is "unconstitutional on numerous grounds." However, the court explicitly narrowed the constructions of “marry” and “purports to marry" in the statute, so that the Utah statute continues to "remain in force as prohibiting bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage." Not surprisingly then, the judge's opinion does not cite the Supreme Court's opinion last term in United States v. Windsor involving DOMA and same-sex marriage, in which Justice Scalia, dissenting, invoked the effect the decision would have on polygamy. [I've previously discussed the similarities of same-sex marriage and polygamy claims here].
Given the district judge's narrowing construction and the clear constitutional issues with the Utah statute's breadth, it might be possible that the state does not appeal.
December 14, 2013 in Books, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)