Monday, January 23, 2017
Former Congressperson and presidential candidate Newt Gingrich has reportedly stated that the famous celebrity Madonna "ought to be arrested" for her speech at the Women's March in Washington D.C. including a reference to thinking about violence.
Here's the video:
Madonna's statements are a far cry from satisfying the classic formulation in Brandenburg v. Ohio (1969) requiring that to be constitutional under the First Amendment, the criminalizing advocacy of violence can only occur if the advocacy is directed to inciting or producing imminent lawless action, and also is likely to incite or produce such lawless action. The less well known case of Hess v. Indiana (1973), is also pertinent because the Court found that the statements during a protest about 'taking the street' was not imminent and was directed at some indefinite future time.
Here, Madonna stated that she "had thought" about the violent act of "blowing up the White House," and then continued, "but I know, that this won't change anything." It's even difficult to meet the threshold of "advocacy" in this case, given that she isn't advocating or suggesting any action. Moreover, even if there were some advocacy, it wasn't directed at inciting others to act. And even if there was incitement, there was no likelihood that the crowd would act lawlessly.
The crowd did respond, however, when Madonna asked them to sing (and dance) along to one of Madonna's signature songs, "Express Yourself."
For ConLawProfs thinking of class illustration, this might be useful. However, although Bradenburg-type questions can be popular (if also somewhat problematical) on exams, this seems far too easy.
Friday, January 20, 2017
A few days before he was sworn in as President of the United States, the complaint in Zervos v. Trump was filed in New York state court alleging a cause of action for defamation, raising several constitutional issues.
First, the issue of whether the chief executive of the United States is entitled to a stay of the proceedings while he occupies the office seems to be resolved by the United States Supreme Court's unanimous 1997 decision in Clinton v. Jones. Jones was decided on a separation of powers issue, of course, given that Paula Jones had filed an action alleging sexual harassment by Bill Clinton before he became president. However, the general reasoning seems applicable. The Court in Jones stated that it was not persuaded of the seriousness of the alleged risks that this decision will generate a large volume of politically motivated harassing and frivolous litigation and that national security concerns might prevent the President from explaining a legitimate need for a continuance, noting that it had confidence in the ability of judges to deal with both concerns.
Second, a complaint of defamation almost always raises a First Amendment concern. Interestingly, here one question would be whether the plaintiff, Summer Zervos, was a public figure under Gertz v. Robert Welch, Inc, so that she would have to prove "actual malice" on the part of the defendant. It would seem that Zervos appearance on Trump's television show, The Apprentice, would make her at least a limited public figure. Moreover, even if not then, her decision to "speak publicly" about her interactions with Trump after sexual harassment became an issue in the campaign, most likely made her a limited public figure.
Yet even if Zervos is a public figure, the complaint alleges that Trump made the statements knowing that they were false or with reckless disregard of their truth or falsity. The complaint makes allegations of numerous statements, including embedding a tweet with a photograph of Zervos:
Interestingly, the complaint also alleges that "all these liars" - - - the women who claimed Trump had sexually harassed them - - - "will be sued after the election is over." Trump has been called a "libel bully" in an article that briefly made headlines for being stifled by the American Bar Association for fear of it provoking the very conduct it analyzed. But it seems as if the tables have been turned.
It's far too early for predicting outcomes, but meanwhile ConLawProfs could use this as an interested Con Law problem - - - or an exam question.
Wednesday, January 18, 2017
The Court heard oral arguments in Lee v. Tam involving the constitutionality of the denial of trademark registration to a band called "The Slants" on the ground that the mark would be disparaging. Recall that the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, was unconstitutional because it violates the First Amendment. The en banc majority found that the disparagement provision constituted viewpoint discrimination and failed strict scrutiny.
However, like so many First Amendment controversies, the case involves a contest between doctrines, as today's oral argument illustrated and as we discussed in our case preview.
For example, it is unclear whether the First Amendment is applicable at all. At issue is whether the band can register this specific trademark, as opposed to whether or not the band can use the name or even whether the band could sue others who used the name for unfair competition. Perhaps the trademark is actually government speech, a prospect that Justice Ginsburg surfaced with an allusion to Walker v. Texas Sons of Confederate Veterans, the confederate flag license plate case, by distinguishing between the license plate (which the government continues to own and which the car driver must affix) and the trademark symbol (which the government does not "own" and the registrant can use or not).
Or perhaps, even if the First Amendment does apply, the analysis should be more akin to a one involving a subsidy, as Malcolm Stewart, Deputy Solicitor General, argued, analogizing to National Endowment for the Arts v. Finley (1998), in which the Court found constitutional a requirement that "general standards of decency" be considered.
Or perhaps the "trademark" is best analyzed under a limited forum analysis, as Stewart also argued, although Chief Justice Roberts seemed to disagree that the "entire trademark program" could be properly considered limited. Additionally, Justice Kennedy later questioned the appropriateness of a forum hypothetical:
STEWART: . . . . Another example I would give, and it's a hypothetical example, but at least I have a strong instinct as to how the --the case should be decided. Suppose at a public university the --the school set aside a particular room where students could post messages on topics that were of interest or concern to them as a way of promoting debate in a nonconfrontational way, and the school said, just two ground rules: No racial epithets and no personal attacks on any other members of the school community.
It --it would seem extraordinary to say that's a viewpoint-based distinction that can't stand because you're allowed to say complimentary things about your fellow students
JUSTICE KENNEDY: So --so the government is the omnipresent schoolteacher? I mean, is that what you're saying?
JUSTICE KENNEDY: The government's a schoolteacher?
STEWART: No. Again, that analysis would apply only if the public school was setting aside a room in its own facility. Clearly, if the government attempted more broadly to restrict disparaging speech by students or others rather than simply to limit the terms under which a forum for communication could be made available, that would involve entirely different questions.
Yet Justice Kennedy seemed equally displeased with the notion that "trademark law is just like a public park" - - - "the classic example of where you can say anything you want. The attorney for The Slants seemed to approve of this analogy, but Justice Kagan found it troublesome:
JUSTICE KAGAN: Well, Mr. Connell, this can't be right, because think of all the other things, the other --I mean, I'll call them content distinctions because they are --that trademark law just makes. I mean, Section 2 prohibits the registration of any mark that's falsely suggestive of a connection with persons likely to cause confusion, descriptive, misdescriptive, functional, a geographic indication for wine or spirits, government insignia, a living person's name, portrait, or signature. You couldn't make any of those distinctions in a --in a --in a public park, and yet, of course, you can make them in trademark law, can't you?
Or perhaps the benefit/forum analysis in combination might be a proper guide. Chief Justice Roberts, questioning the attorney for the respondent, raised this possibility again, in a hypothetical about the government putting on a Shakespeare festival in which presentations disparaging Shakespeare would be excluded. This also led to Justice Ginsburg analogizing to Pacifica v. FCC, which Justice Breyer noted might be apt as a permissible time, place, and manner regulation: The Slants can use the words in the entire universe, except as a trademark. Eventually, Justice Sotomoyor took the argument to an interesting turn:
SOTOMAYOR: . . . . But your argument earlier was that if someone slanders or libels an individual by saying --Trump before he was a public figure --Trump is a thief and that becomes their trademark, that even if they go to court and prove that that's a libel or a slander, that trademark would still exist and would be capable of use because otherwise canceling it would be an abridgement of the First Amendment?
MR. CONNELL: I believe that's correct.
JUSTICE SOTOMAYOR: That makes no sense.
Finally, the relevance of commercial speech surfaced, although not particularly convincing. The attorney for The Slants referred to the commercial vs. the noncommercial aspects of trademark, but this did not seem to gain much traction. Justice Alito did, however, ask whether "viewpoint discrimination is always prohibited in commercial speech," and used as an example, whether "a manufacturer of cigarettes could not place on a package of cigarettes "Great for your health. Don't believe the surgeon general." The attorney for The Slants replied that viewpoint discrimination in commercial speech was prohibited under IMS v. Sorrell (2011).
Another "hypothetical" - - - Blackhorse v. Pro-Football, Inc., in which a divided Trademark Trial and Appeal Board canceled a football team's trademark under the disparagement clause - - - was not broached in the oral argument, but looms large in any decision the Court will render.
Tuesday, January 17, 2017
The D.C. Circuit rejected a claim today that the Park Service's set-aside of Freedom Plaza for the Inauguration Committee violated the free speech rights of a group that sought to protest in that space during President-Elect Trump's inauguration.
The ruling ends this challenge, and means that the group will have to find some other place to protest.
The case involves a 2008 Park Service regulation that authorizes a priority permit setting aside a portion of space along the Inaugural Parade route to the Presidential Inaugural Committee for ticketed spectator bleachers. (The set-aside amounts to about 13 percent of the space along the route. In total, about 30 percent of the space along the route is not open to the public; the other 70 percent is available on a first-come, first-served basis.) That area includes Freedom Plaza, a park along Pennsylvania Avenue.
The set-aside priority permit does not displace the regular permit process for protestor along the parade route. But it means that protestors can't use the area set aside for the Inaugural Committee.
That's where ANSWER (Act Now to Stop War and End Racism) comes in. ANSWER sought to protest on Freedom Plaza, but couldn't, because the space was reserved for the Inaugural Committee. ANSWER sued, arguing that the set-aside violated its free speech rights.
The D.C. Circuit rejected this claim. The court ruled that the Park Service set-aside was a content-neutral, time, place, manner regulation of speech in a public forum, that was narrowly tailored to achieve a significant government interest (celebrating the inauguration), and left open ample alternatives for speech.
The court rejected ANSWER's argument that the regulation was viewpoint based, because the group sought to protest against President-Elect Trump: "ANSWER's admittedly viewpoint-based reason for seeking access to the Plaza does not, however, make any rule that stands in its way content based."
The Supreme Court will hear oral arguments tomorrow in Lee v. Tam, the case testing whether the Patent and Trademark Office violated free speech when it denied a trademark to an all-Asian-American dance-rock band called The Slant, pursuant to a statutory prohibition against registering a "disparaging" mark.
Here's my preview, from the ABA Preview of U.S. Supreme Court Cases, with permission:
Simon Tam is the front-man for an all-Asian-American dance-rock band called The Slants. Tam formed the band in 2006 not only to play music, but also to express his views on discrimination against Asian-Americans. So when Tam turned to name the band, he sought to embrace a term that has been used as a racial insult against Asian-Americans, “slant.” (In so doing, Tam drew on a tradition of “re-appropriation.” Re-appropriation is when members of a minority group reclaim terms that have been used to insult or stigmatize them and redirect those terms as badges of pride.)
The Slants’s political statements sweep well beyond the band’s name. For example, their first album was called “Slanted Eyes, Slanted Hearts”; their fourth was called “The Yellow Album.” Some of their song lyrics advocate for Asian pride and promote cultural heritage. (For more on The Slants, check out their web-site, at www.theslants.com.)
In 2011, Tam sought to register The Slants as a trademark. The trademark examiner refused to register the mark, however, because it was likely to disparage persons of Asian descent, under Section 2(a) of the Lanham Act. (As described below, this section prohibits the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks.) The Trademark Trial and Appeal Board agreed.
Tam appealed to the United States Court of Appeals for the Federal Circuit, arguing that the Board erred in finding the mark disparaging and that Section 2(a) violated the First Amendment. A three-judge panel affirmed the Board’s determination that the mark was disparaging, and rejected Tam’s free-speech claim. The full court, however, reversed and ruled that Section 2(a) violated the First Amendment. The government brought this appeal.
Congress enacted the Lanham Act in 1946 to provide a national system for registering and protecting trademarks used in interstate and foreign commerce. In enacting the Act, Congress sought to help assure consumers that a product bearing a particular mark is, indeed, the product that the consumer seeks, and to protect a markholder from misappropriation and misuse of the mark.
Under the Act, trademark registration comes with significant benefits. For example, the holder of a federal mark has the right to exclusive, nationwide use of the mark where there is no prior use by others. Moreover, a markholder can sue in federal court to enforce the trademark; obtain assistance from U.S. Customs and Border Protection in restricting importation of infringing good; and qualify for a simplified process for obtaining protection in countries that have signed the Paris Convention. Finally, a markholder can use registration as a complete defense to state or common law claims of trademark dilution.
Under the Act, the PTO must register a trademark unless it falls into one of several categories of marks precluded from registration. One of those categories, Section 2(a) of the Act, bars registration of a mark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” The PTO has used Section 2(a) to deny or cancel “disparaging” marks such as Stop the Islamisation of America, The Christian Prostitute, Marriage is for Fags, Democrats Shouldn’t Breed, Republics Shouldn’t Breed, and others. Perhaps most famously, the PTO used Section 2(a) to cancel six trademarks of the Washington Redskins NFL football team (although this decision is now on appeal and may be affected by Tam’s case).
In denying a mark under Section 2(a), the PTO denies a significant government benefit to speech based on the content and viewpoint of that speech, even though the government does not prohibit the speech itself. (The Slants can still use The Slants, even if the name does not enjoy trademark protection.) The parties dispute whether this kind of denial violates the First Amendment.
The government argues that Section 2(a) does not violate the First Amendment, because it does nothing to restrict Tam’s speech. The government argues that laws that restrict speech can violate the First Amendment, but that federal programs that subsidize speech (like the Lanham Act) cannot. The government points to precedents upholding the denial of federal tax-exempt status for non-profit organizations’ lobbying activities and sustaining federal regulations that prohibited the use of family-planning funds for abortion-related services. The government also says that it can decide not to subsidize speech at all, and, based on a case from just two Terms ago, that it need not provide a “mobile billboard” for offensive messages on state specialty license plates. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). In short, the government contends that it has “significant discretion to decide which activities to fund and what criteria to use for inclusion in government programs.”
The government argues that Section 2(a) falls squarely within these principles. It says that trademark registration confers a significant government benefit, and that it has discretion in determining how to allocate this benefit. The government claims that the PTO’s denial of registration does not restrict Tam from using “The Slants”; it just means that Tam does not get the benefits of federal registration.
The government argues next that the lower court erred in ruling that Section 2(a) was facially unconstitutional. The government says that Section 2(a) is not an unconstitutional condition on a government program, and it is not an impermissible viewpoint-based restriction on speech. Instead, Section 2(a) simply sets out criteria for a government benefit in a way that the Court has upheld, again, just two Terms ago. The government contends that Section 2(a)’s criteria serve legitimate government interests not to encourage the use of disparaging terms and to disassociate itself from racial slurs and other offensive speech. Finally, according to the government, “[t]he Constitution does not put Congress to the choice of either eliminating the federal trademark-registration program altogether or promoting the use of racial slurs in interstate commerce.”
In response, Tam argues that Section 2(a) creates an impermissible viewpoint-based burden on speech. Tam says that Section 2(a) permits the registration of marks that express a positive or neutral view, but not those that express a negative view. He claims that the government’s only interest is in protecting people from offensive trademarks, and that this interest is not sufficiently compelling to justify the viewpoint-based burden.
Tam argues that the government is wrong to try to shoehorn Section 2(a) into First Amendment principles that would allow a burden on speech. Tam says that trademark registration is not a government subsidy, because (unlike the subsidies in the Court’s precedents) it involves no actual disbursement of funds. He claims that registration does not amount to government speech, because the speech involved is by the markholder, not the government. And he contends that trademarks are not commercial speech subject to certain government regulation (and he says that it would fail the commercial speech standard, anyway).
Tam argues next that Section 2(a) is unconstitutionally vague. He says that the provision is inherently vague—what does “disparaging” mean?—and that the PTO has applied the provision inconsistently. He claims that the PTO’s methodology, which considers whether a name disparages an entire racial or ethnic group, only compounds the problem, because the PTO does not have a determinate way to measure whether and how a name disparages an entire group. Tam contends that Section 2(a), as a vague restriction on speech, chills speech, and facilitates discriminatory enforcement. He claims that it is therefore unconstitutional.
Finally, Tam argues that Section 2(a) does not bar registration of The Slants, even if Section 2(a) is constitutional. Tam says that the The Slants is not disparaging under Section 2(a); instead, it is exactly the opposite—a re-appropriated term used as a badge of pride. He asserts that the PTO was wrong to deny registration based on whether The Slants disparages an entire racial or ethnic group. He claims that the Act requires the PTO instead to apply Section 2(a) only when a name disparages “persons,” not groups. The Slants, he says, does not meet this test.
While this case is certainly important to Simon Tam and his ability to protect his use of The Slants, the underlying issue has received far more attention in the dispute over the NFL’s Washington Redskins. Using the same Section 2(a) involved in this case, the PTO in 2014 cancelled trademark protection for six Redskins trademarks at the request of a group of Native Americans. A federal judge upheld the cancellation, ruling that “Redskins” was disparaging to “a substantial composite of Native Americans” when each of the marks was registered. The Redskins appealed, but the case is on hold pending the outcome of Tam’s case. (The Redskins asked the Supreme Court to review their case along with Tam’s, but the Court declined.) The Redskins’s case illustrates the stakes involved to the markholders: Losing federal trademark protection would mean that markholders could not protect their marks against others’ uses in the federal system, potentially costing markholders substantial revenue and exclusive name rights. The two cases—Tam’s case and the Redskins’s case—together also illustrate the difficulties in identifying and withholding trademark protection from disparaging names, while extending protection to non-disparaging names.
At the same time, denial or cancellation of federal trademark protection does not mean that a person cannot use the name. Tam could still use The Slants, and the Redskins could still use the Redskins, even if they do not receive federal trademark protection. They simply would not get the benefits of federal trademark protection. Moreover, individuals could still seek trademark protection at the state level. (But this would provide protection only within the state, not nationwide. Moreover, states may have restrictions similar to Section 2(a), so that Tam, the Redskins, and others might not qualify at the state level, either.)
Although much of the briefing in the case is couched in constitutional terms, the Court could rule on narrower grounds. For example, the Court could simply rule that the PTO misapplied Section 2(a) in rejecting Tam’s application. (Tam sets the stage for this kind of ruling by arguing that the PTO erroneously considered disparagement to a group, not to “persons,” in evaluating his application.) If so, the Court could simply remand the case with instructions on interpreting Section 2(a), without ruling on its constitutionality. This kind of ruling could limit the application of Section 2(a), but it would not strike the provision.
If the Court engages the constitutional arguments, look for the Court to determine as an initial matter whether the First Amendment even applies. The Court could dodge the harder constitutional issues simply by ruling, as the government argues, that Section 2(a) does not impose a burden on speech, because trademark registration is a benefit or subsidy, and because Section 2(a) does not restrict speech. If so, the Court would uphold Section 2(a), although it might limit it, as above.
If the Court sees Section 2(a) as a burden on speech, however, the Court is almost certain to strike the provision as unconstitutionally vague or as a viewpoint-based restriction on speech. (The Court has consistently expressed its distaste for content-based restrictions on speech in recent years. Viewpoint-based restrictions are even more suspect.)
Monday, January 16, 2017
While we often think of protest and civil disobedience under the First Amendment, in her article Protest is Different in Richmond Law Review, Professor Jesssica West of University of Washington essentially argues that the First Amendment has not been a sufficiently robust defense criminal prosecutions. Instead, she contends that we should reconceptualize protest relying upon evolving concepts of capital jurisprudence flowing from the Eighth Amendment contention that "death is different." She argues that similar to the complexity of the moral determination inherent in a sentence of death requiring a judgment of community condemnation, a criminal conviction resulting from acts of protest likewise involves deep and complex values of individualization and community conscience.
It's a worthwhile read on this Martin Luther King Day: "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws." Martin Luther King, Jr., Letter from a Birmingham Jail, Apr. 16, 1963.
Thursday, December 15, 2016
In its unanimous opinion in Liverman v. City of Petersburg (Virginia), the Fourth Circuit has held that a police department's social media policy and its subsequent enforcement violated the First Amendment.
The opinion, authored by Judge J. Harvey Wilkinson, concerned the police department's "negative comments" policy which provided,
Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law.
The court further considered a related provision, the so-called "public concern provision, which provided:
Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances must be judged on a case-by-case basis.
Liverman, while off-duty, posted a comment to his Facebook page complaining about "rookie cops" becoming "instructors," writing in part, "Give me a freaking break, over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it takes at least 5 years for an officer to acquire the necessary skill set to know the job and perhaps even longer to acquire the knowledge to teach other officers." Another off-duty officer, Richards, wrote to "agree 110%" and furnish additional comments. The officers each received an oral reprimand and probation for 6 months, with a new policy added that excluded officers on probation from being considered for promotion.
The Fourth Circuit engaged in the familiar Pickering-Connick balancing test, first asking whether the speech related to a "matter of public concern," and then if so, balancing “the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
The court easily found that the "negative comments" ban related to matters of public concern, concluding that "the restraint is a virtual blanket prohibition on all speech critical of the government employer." As for the interest of the police department, the court was not only critical of the ban's breadth, but also contended it actually disserved the government interests:
We do not, of course, discount the capacity of social media to amplify expressions of rancor and vitriol, with all its potential disruption of workplace relationships that Connick condemned. But social networking sites like Facebook have also emerged as a hub for sharing information and opinions with one’s larger community. And the speech prohibited by the policy might affect the public interest in any number of ways, including whether the Department is enforcing the law in an effective and diligent manner, or whether it is doing so in a way that is just and evenhanded to all concerned. The Department’s law enforcement policies could well become a matter of constructive public debate and dialogue between law enforcement officers and those whose safety they are sworn to protect.
Moreover, the department could not show any actual disruption to its mission.
The court did note that the department could craft a "narrower social media policy" that did not have "chilling effects," but as the negative comments policy was written, it did indeed violate the First Amendment.
President Obama's 2016 Proclamation regarding Bill of Rights Day stresses the evolving nature of the Bill of Rights protections:
As it was originally created, the Bill of Rights safeguarded personal liberties and ensured equal justice under the law for many -- but not for all. In the centuries that followed its ratification, courageous Americans agitated and sacrificed to extend these rights to more people, moving us closer to ensuring opportunity and equality are not limited by one's race, sex, or circumstances. The desire and capacity to forge our own destinies have propelled us forward at every turn in history. The same principles that drove patriots to choose revolution over tyranny, a country to cast off the stains of slavery, women to reach for the ballot, and workers to organize for their rights still remind us that our freedom is intertwined with the freedom of others. If we are to ensure the sacred ideals embodied in the Bill of Rights are afforded to everyone, each generation must do what those who came before them have done and recommit to holding fast to our values and protecting these freedoms.
Two and a quarter centuries later, these 10 Constitutional Amendments remain a symbol of one of our Nation's first successful steps in our journey to uphold the rights of all citizens. On Bill of Rights Day, we celebrate the long arc of progress that transformed our Nation from a fledgling and fragile democracy to one in which civil rights are the birthright of all Americans. This progress was never inevitable, and as long as people remain willing to fight for justice, we can work to swing open more doors of opportunity and carry forward a vision of liberty and equality for generations to come.
As for how "Bill of Rights Day" became a named day - - - if not a true holiday - - - my previous discussion is here.
Thursday, December 1, 2016
The Eleventh Circuit ruled earlier this week that a police major was not entitled to qualified immunity for issuing a be-on-the-lookout (BOLO) advisory for another officer, recently fired for complaining about racial profiling and other constitutional violations by the local police department.
The ruling means that the officer's First Amendment case can move forward on the merits.
The case arose when Derrick Bailey, then an officer in the Douglasville Police Department, complained to his chief that other Douglasville officers and Douglas County Sheriff's Office deputies engaged in racial profiling and other constitutional violations. Bailey, who had an above-average record, was fired and harassed by other officers. Then Major Tommy Wheeler of the Douglas County Sheriff's Office issued the BOLO, saying that Bailey was a "loose cannon" who presented a "danger to any [law-enforcement officer] in Douglas County," and directing officers to "act accordingly." (According to the court, there was no evidence of any of this.)
Bailey sued for civil rights violations, and Wheeler moved to dismiss on qualified immunity grounds. The Eleventh Circuit rejected Wheeler's defense. It ruled that Bailey's speech was protected (Wheeler didn't contest this), that Wheeler's conduct adversely affected Bailey's speech, and that there was a causal connection between Bailey's speech and Wheeler's actions.
As to the second part, adversely affected, the court explained:
Let's pause for a moment to appreciate just how a reasonable law-enforcement officer may have understood that [BOLO] instruction. Under Georgia law, when a subject is armed and dangerous, an officer may shoot the subject in self-defense--a term Georgia construes as having justifiable intent to use such force as the officer reasonably believes to be necessary to prevent death or great bodily injury. So, in other words, Wheeler's BOLO gave all Douglas County law-enforcement officers a reasonable basis for using force--including deadly force--against Bailey if they reasonably misconstrued a single move Bailey made--such as reaching into his pocket when confronted by law-enforcement officers--as imperiling themselves or anyone else. We think that this situation, which potentially seriously endangered Bailey's life, easily would deter a person of ordinary firmness from exercising his First Amendment rights.
The court also ruled that Bailey's right to be free from retaliation for his speech was clearly established at the time that Wheeler issued the BOLO.
The court also denied Wheeler absolute immunity on Bailey's state-law defamation claim.
The ruling sends the case back to the trial court to go forward on the merits.
Tuesday, November 29, 2016
Each part of the ruling is important: the free speech ruling creates a circuit split; and the Eighth Amendment ruling implicates questions of supervisor liability for civil rights violations and access to justice for victims--issues now before the Supreme Court (in a different context).
The case arose when state prisoner Seyon Haywood alleged that his auto mechanic teacher attacked him. Guards charged Haywood with making a false statement, and a disciplinary panel found him guilty and sentenced him to two-month's segregation and revoked one month of good-time credit.
Haywood filed a federal civil rights case against the warden, alleging that his punishment violated his free speech rights, and that his segregated confinement violated the Eighth Amendment.
The Seventh Circuit dismissed the First Amendment claim. The court ruled that under Heck v. Humphrey and Edwards v. Balisok, Haywood couldn't bring a Section 1983 case for relief that would necessarily imply the invalidity of his disciplinary sentence, at least until he successfully challenged that disciplinary sentence. The court rejected Haywood's argument that Heck and Edwards don't apply, because he disavowed any challenge to the duration of his confinement. Haywood's argument drew on a Second Circuit ruling, Peralta v. Vasquez, which said just that. The Seventh Circuit's rejection of Haywood's claim sets up a circuit split on the question whether a prisoner can bring a 1983 case without successfully challenging a sentence, if the prisoner waives that challenge.
As to the Eighth Amendment claim, the court held that Haywood produced sufficient evidence to show that the warden (the only defendant in the case) was deliberately indifferent to Haywood's conditions of confinement to satisfy Ashcroft v. Iqbal and Farmer v. Brennan for direct (not vicarious) liability.
Judge Easterbrook dissented on this latter point. He argued that Haywood only showed that the warden knew of the conditions of his confinement, and, under Iqbal, knowledge is not enough. Judge Easterbrook also noted that the Supreme Court will weigh in on this soon enough, in the consolidated Turkmen cases, testing whether former AG Ashcroft and FBI Director Mueller, among others, can be held liable for detention of alien detainees at the Metropolitan Detention Center in New York, soon after 9/11.
The United States Supreme Court has held that flag burning as expressive speech is protected by the First Amendment and that loss of citizenship is not a constitutional punishment for a crime.
In Texas v. Johnson (1989), the Court declared:
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . . In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it.. . . There is, moreover, no indication -- either in the text of the Constitution or in our cases interpreting it -- that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole -- such as the principle that discrimination on the basis of race is odious and destructive -- will go unquestioned in the marketplace of ideas. . . .
We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag -- and it is that resilience that we reassert today.
The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.
To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to bee applied is more speech, not enforced silence.
Whitney v. California(1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
During the oral argument in Texas v. Johnson, the late Justice Scalia, who joined the Court's opinion, expressed scorn for the notion that the flag should be insulated from the First Amendment protections of speech. In a colloquy with the attorney for the State of Texas, Justice Scalia wondered if Texas could similarly criminalize desecration of the state flower, the blue bonnet. Scalia then remarked:
Well, how do you pick out what to protect?
I mean, you know, if I had to pick between the Constitution and the flag, I might well go with the Constitution.
As for the constitutionality of "loss of citizenship" as punishment for a criminal violation, the United States Supreme Court, in Trop v. Dulles (1958), declared that "Citizenship is not a license that expires upon misbehavior." In considering a statute that revoked citizenship for desertion by a member of the armed forces, the Court stated that the
use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.
This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.
The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.
Thus it seems that the president-elect's sentiment is at odds with our constitutional precedent.
Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!— Donald J. Trump (@realDonaldTrump) November 29, 2016
Monday, November 28, 2016
A complaint alleging violations of the First and Fourth Amendments by North Dakota officials has been filed on behalf of "water protectors" at the Dakota Access Pipeline (DAPL) protest at Standing Rock. The plaintiffs in Dundon v. Kirchmeier have also filed a motion and memo for a Temporary Restraining Order "enjoining Defendants from curtailing their First and Fourth Amendment rights by using highly dangerous weaponry, including Specialty Impact Munitions (SIM, also known as Kinetic Impact Projectiles or KIP), explosive “blast” grenades, other chemical agent devices, and a water cannon and water hoses in freezing temperatures, to quell protests and prayer ceremonies associated with opposition to the Dakota Access Pipeline (DAPL).
As to the First Amendment, the plaintiffs allege that the defendants have sought to eliminate protected First Amendment activity in a public forum. Additionally, even if there were an "unlawful assembly" not protected by the First Amendment, the defendants violated the Fourth Amendment's prohibition of excessive force. Moreover, the plaintiffs claim that the activities of the government officials have become a custom warranting government liability.
The factual claims in the complaint and memo supporting the TRO are troubling; some of the accounts will be familiar from reporting, but the legal documents compare the use of force at Standing Rock to other situations.
For example, on the water cannon:
The use of water cannons in riot control contexts also can lead to injury or death. Potential health effects include hypothermia and frostbite, particularly if appropriate medical and warming services are not easily accessible. High-pressure water can cause both direct and indirect injuries. Direct injuries may include trauma directly to the body or internal injuries from the force of the water stream. Eye damage resulting in blindness as well as facial bone fractures and serious head injuries have been documented. Ex. V at 59; Anna Feifenbaum, White-washing the water cannon: salesmen, scientific experts and human rights abuses, Open Democracy (Feb. 25, 2014); https://www.opendemocracy.net/opensecurity/anna-feigenbaum/white-washingwater-cannon-salesmen-scientific-experts-and-human-rights; https://web.archive.org/web/20070221053037/http://newzimbabwe.com/pages/mdc44.15976.html (fatalities reported in Zimbabwe in 2007, when water cannons were used on peaceful crowd, causing panic); http://www.hurriyetdailynews.com/Default.aspx?pageID=238&nid=49009 (fatalities reported in Turkey in 2013, when water cannon water was mixed with teargas); https://www.kyivpost.com/article/content/ukraine-politics/activist-watered-by-police-diedbecause-of-pneumonia-335885.html (fatality reported in Ukraine in 2014, when businessman Bogdan Kalynyak died from pneumonia after being sprayed by water cannon in freezing temperatures). There is no current caselaw on the use of water cannons against protesters in the United States because, along with attack dogs, such use effectively ended in the U.S. in the 1960s amidst national outcry over the use of these tactics on nonviolent civil rights protesters.
Saturday, November 26, 2016
The safety pin has been recognized as an expression of support for the "vulnerable," becoming popular in the UK in response to xenophobic incidents after the Brexit vote and now in the US after reports of similar incidents. While some deride it as being a mere (and insufficient) fashion accessory without accompanying actions, the Shawnee Mission School District in Kansas has issued a message to its employees essentially prohibiting them from wearing safety pins as a form of expression. Here is the statement from the school district's Facebook page, seemingly crafted in consultation with its local NEA chapter:
"Recent events require us to remind our employees of their rights and responsibilities. As a staff member, you do not give up your first amendment right to free-speech on matters of public concern. However, your communication inside the classroom on school time is considered speech on behalf of the school district and there is a limitation on that speech.
The wearing of a safety pin as a political statement is the latest example of such political speech. Although wearing the safety pin as political speech is not the problem, any disruption the political statement causes in the classroom or school is a distraction in the education process. We ask staff members to refrain from wearing safety pins or other symbols of divisive and partisan political speech while on duty--unless such activity is specifically in conjunction with District curriculum.
Further, the use of district owned devices and accounts is strictly forbidden for anything other than District business. If you have questions regarding appropriate use, please see BOE policies IIBF and GAT.
NEA-SM and the Board of Education are committed to the safety of every student. Thank you in advance for your careful review of this statement and for working with all students of the Shawnee Mission community.”
The Kansas ACLU has sent a letter to the school district urging it to "reconsider the prohibition on the wearing of safety pins." The ACLU letter argues that the safety pin is not partisan political speech and is "highly vulnerable to legal challenge" under the classic case of Tinker v. Des Moines Independent Community School District (1969). In Tinker, involving students wearing black armbands to protest the Viet Nam war, the Court ruled that public schools could not curtail students' symbolic speech unless the speech would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or infringe on the rights of others. The Supreme Court famously stated that "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and the Tinker standard has been applied to teachers as well as students.
The ACLU has the better argument here. As I've written in Dressing Constitutionally, the Tinker standard has been applied to teachers as well as students. Moreover, the school district's contention that teachers' expression "inside the classroom on school time is considered speech on behalf of the school district," is an overstatement (and is at odds with doctrine limiting government liability for teacher speech unless it is official policy). Importantly, the school's communication recognizes the "safety pin" as conveying a specific meaning - - - contrasted with cases involving teacher dress in which the expression is debatable (e.g., long hair or mustaches for male teachers) - - - and thus the First Amendment clearly applies to the safety pin as expression. As for disruption, the Tinker standard requires the school officials "had reason to anticipate" a substantial disruption rather than merely "an urgent wish to avoid the controversy which might result from the expression." There do not seem to be any facts indicating that there would be disruption - - - again, contrasted with cases in which there was a history of racial violence and student Confederate flag attire could be banned - - - and thus the Tinker standard is not satisfied.
The school board is on shaky First Amendment ground in its banning of safety pins as symbolic expression.
Tuesday, November 22, 2016
The factual predicate for the case does not involve the most recent election. Writing for the majority, Seventh Circuit Judge Kenneth Ripple began by explaining:
The plaintiffs have brought this action alleging that Act 43, the redistricting plan enacted by the Wisconsin Legislature in 2011, constitutes an unconstitutional partisan gerrymander. Specifically, they maintain that the Republican-controlled legislature drafted and enacted a redistricting plan that systematically dilutes the voting strength of Democratic voters statewide. We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.
In its discussion of "foundational case law," the court begins its discussion with the equal protection case of Reynolds v. Sims (1964), and concludes with League of United Latin American Citizens v. Perry (“LULAC”) (2006), although interestingly it does not cite Bush v. Gore (2000). In considering the "close relationship between equal protection and associational rights," the court found Williams v. Rhodes (1968) especially instructive. The court concluded:
We therefore believe that there is a solid basis for considering the associational aspect of voting in assessing the gravamen of the harm allegedly suffered by the plaintiffs. Indeed, in this case, the associational harm is especially important to the analysis because the testimony of the defendants’ witnesses as well as the plaintiffs’ demonstrate that, given the legislative practice and custom of Wisconsin, legislative action is controlled, as a practical matter, solely by the majority caucus. In such a circumstance, when the state places an artificial burden on the ability of voters of a certain political persuasion to form a legislative majority, it necessarily diminishes the weight of the vote of each of those voters when compared to the votes of individuals favoring another view. The burdened voter simply has a diminished or even no opportunity to effect a legislative majority. That voter is, in essence, an unequal participant in the decisions of the body politic.
It therefore rejected the notion that equal protection "must be limited to situations where the dilution is based on classifications such as race and population."
The court summarized the applicable doctrine as follows:
the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.
The court then exhaustively applied these standards to the complex facts, concluding that the plaintiffs had carried their burden. As to remedy, however, the court deferred because the parties had not had the opportunity to completely brief the matter and ordered simultaneous briefs within 30 days with 15 days thereafter to respond.
The dissenting judge, William Griesbach, relied on Davis v. Bandemer (1986) (plurality), in which the Court refused to invalidate Indiana's redistricting scheme, to support his conclusion that "partisan intent is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches of government," and interestingly notes that
"It was only a term ago that the Court held by a 5 to 4 vote that it was constitutionally permissible to remove redistricting from the political branches. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (2015). Adoption of the majority’s standard may well compel States to do so."
The incessant issue of gerrymandering may be headed to the United States Supreme Court yet again.
[image 1, Wisconsin map 1865 via; image 2, Appendix 2 to the court's opinion]
Sunday, November 20, 2016
In Miami Herald Publishing Co. v. Tornillo (1974), a unanimous Supreme Court held that Florida's "right of reply" statute granting a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper violated the First Amendment.
As the opinion by Chief Justice Burger phrased it:
the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which "reason' tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated. . . . Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers.
Thus, while the President-Elect may simply be requesting "equal time" for "us," his widely reported tweet implicates serious constitutional concerns.
I watched parts of @nbcsnl Saturday Night Live last night. It is a totally one-sided, biased show - nothing funny at all. Equal time for us?— Donald J. Trump (@realDonaldTrump) November 20, 2016
Monday, November 14, 2016
Judge Colleen Kollar-Kotelly (D.D.C.) denied the group Catharsis on the Mall a preliminary injunction against the National Park Service from enforcing its regulation against certain bonfires on Park Service land in D.C.
The ruling, though preliminary, means that Catharsis on the Mall didn't get to burn its wooden Phoenix this weekend--symbolic speech in support of veterans' and PTSD survivors' access to treatment.
The case arose when Catharsis sought permission to hold its second annual 72-hour vigil near the Washington Monument, which was to culminate in the burning of a 24-foot tall Phoenix. The group sought to show its support for veterans' and PTSD survivors' access to treatment.
The NPS denied permission, however, citing a new regulatory scheme for outdoor events, including a regulation that bans burning structures by size.
But here's the problem: NPS granted a permit to the group to burn a structure during its vigil last year that was even bigger than this year's Phoenix. And the D.C. Fire Department didn't think the Phoenix burning would have been a problem.
Still, the court ruled that Catharsis didn't show a likelihood of success on the merits. In particular, the court wrote that the new bonfire regulation was a content-neutral time, place, manner regulation on speech in a public forum; that it was narrowly tailored to maintain safety; and that Catharsis had other ways to convey its message.
The ruling is only on Catharsis's motion for a preliminary injunction, but given the court's approach to the likelihood-of-success question, the final ruling will almost certainly be the same.
Saturday, November 12, 2016
The D.C. Circuit ruled this week in LeFande v. D.C. that the D.C. Metropolitan Police Department did not violate an officer's First Amendment rights when the MPD fired the officer for internal e-mails critical of MPD operations and officers, and refusing to respond to a superior's request.
The ruling puts an end to this very long-running dispute, and the very long-running, and highly contentious, relationship between the officer, LeFande, and the MPD.
This piece of the case arose when Matthew LeFande, police reserve officer with the MPD (a volunteer position designed to assist full-time officers), wrote a series of internal e-mails highly critical of certain MPD operations and MPD officers, and declining to comply with a superior's request. (The case actually started much earlier, with a suit LeFande filed against the MPD, and the MPD fired him. He raised a First Amendment claim to his termination (based on his free speech in bringing the suit), but the MPD said it actually fired him for the e-mails--thus opening this latest chapter of the case.)
The court ruled that it didn't have to say whether the e-mails constituted citizen speech on matters of public concern (under Pickering), because the MPD's interest in efficiency outweighed LeFande's interests in free speech, anyway. The court held that LeFande's free-speech interest in sending e-mails criticizing MPD operations and officers "cannot outweigh the fact that their 'disruptive force' . . . threatens workplace efficiency." It further held that LeFande's interest in sending e-mails declining a superior's request were outweighed by the MPD's interest in efficiency, because "[i]f police department leadership faced opposition from employees after every routine request, the machinery of law enforcement would grind to a halt."
The court conceded that some of LeFande's speech (especially those e-mails criticizing MPD operations) implicated matters of public concern--perhaps more than the survey questions in Connick. But it ruled that the MPD's interest outweighed LeFande's, especially "given the 'special degree of trust and discipline required in a police force.'"
Friday, November 4, 2016
In her opinion in Hill v. Williams, United States District Judge Christine Arguello enjoined Colorado Revised Statute § 1-13-712(1), which prohibits a voter from “show[ing] his ballot after it is prepared for voting to any person in such a way as to reveal its contents.” In late October, the Denver District Attorney issued a news release reminding voters that posting an image of a completed ballot - - - a "ballot selfie" - - - was a misdemeanor. Two separate sets of plaintiffs thereafter sued to enjoin the Colorado statute as a violation of the First Amendment.
As Judge Argeullo explains,
Colorado uses an all mail-in ballot election. Every registered voter who registered to vote on or before October 31, 2016, has received a mail-in ballot to complete at home. Individuals who did not register by that date are allowed to register at the polling places and vote up to, and including, Election Day. Moreover, voters who have obtained ballots in the mail are still allowed to vote in person on Election Day. . . . The Deputy Secretary of State testified that she anticipates between 100,000 and 750,000 Coloradans will vote in person on November 8, 2016.
The ballot selfie prohibition thus included photographs at polling places as well as photographs of ballots completed for mailing.
The judge first rejected the state's arguments that the plaintiffs lacked standing or that the case was already moot. The judge likewise rejected the argument that an injunction would alter election laws and procedures immediately before an election. Despite the timing, the judge stated that the plaintiffs' request (and her injunction) was narrowly crafted, and further noted that "if local rules at polling places prohibit the use of cameras due to privacy concerns, nothing in this Court’s Order prohibits the enforcement of those rules."
In the discussion of the First Amendment merits, the judge applied intermediate scrutiny for purposes of the preliminary injunction and concluded that the statute failed. The judge also accepted that voter fraud was a significant government interest. However, the judge found the means chosen were not sufficiently narrowly tailored to serve that interest: the statute prohibits a wide range of conduct and does not include a mens rea related to voter fraud. Moreover, other extant laws could achieve the purpose of preventing voter fraud.
Thus, the judge entered a preliminary injunction against the defendant prosecutors
from enforcing Colorado Revised Statute § 1-13-712(1) by prosecuting, referring for prosecution, and/or investigating violations thereof, or instructing any person to remove from publication any photograph or image of that person’s voted ballot, unless such violations or publication is in connection with violations of other criminal laws. Nothing in this Order shall alter the ability of Defendants or other officials to enforce any other laws, rules, or regulations related to the administration of the election, including those rules in effect at polling places.
This opinion contrasts with the opinion regarding the New York statute. Like the New York statute, the Colorado statute is longstanding (section § 1-13-712 was passed in 1891, but was most recently amended in 1980), and both lawsuits were filed close to the pending election. However, Judge Arguello balanced the First Amendment interests in favor of the individuals and issued a narrow but effective injunction.
Thursday, November 3, 2016
In the opinion in Silberberg v. Board of Elections of New York, United States District Judge P. Kevin Castel denied a motion for a preliminary injunction against NY Election Law §17-130(10), originally enacted 126 years ago, which makes it a misdemeanor for a person to "show" a ballot after it is prepared for voting to any person.
Judge Castel's central rationale for denying the motion relied on the age of the statute compared with the litigation:
This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well- intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.
The age of the statute also figured into Judge Castel's First Amendment analysis, distinguishing the NY statute from the ballot-selfie prohibition of New Hampshire the First Circuit recently declared unconstitutional in Rideout v. Gardner. The New Hampshire statute had been recently enacted: it would be difficult for the state to provide evidence of what would happen should the statute be invalidated and the statute was not directed at any specific technology.
While Judge Castel's First Amendment analysis is cogent, it is not entirely convincing. It may be that New York's statute violates the First Amendment, but the judge made it clear that a preliminary injunction this close to an election was not the vehicle to do so.
In his opinion in Republican Party of Pennsylvania v. Cortes, United States District Judge for the Eastern District of Pennsylvania Gerald Pappert has rejected the Equal Protection, Due Process, and First Amendment constitutional challenges to the state election code provision §2687(b) requiring poll watchers to be qualified electors of the county in which they serve.
The challenge argues that the code provision violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment by hampering poll watchers’ fundamental right to vote. The "crux of this argument," as Judge Pappert states, is "that if a qualified, registered voter casts a valid ballot in one county and a fraudulent ballot is cast for a different candidate in another county, the fraudulent ballot effectively negates the valid ballot, and the qualified, registered elector’s vote is diluted." But Judge Pappert rejected any applicability of Reynolds v. Sims's vote-dilution, noting that the vote-dilution theory here is "based on speculation that fraudulent voters may be casting ballots elsewhere in the Commonwealth and the unproven assumption that these alleged instances of voter fraud would be prevented by the affected poll watchers were they not precluded from serving at these locations." Additionally, the challengers argued that the code provision arbitrarily distinguished between voters by county, a classification which the challengers conceded in the hearing would merit only rational basis scrutiny. Indeed, Judge Pappert found that the entirety of the Fourteenth Amendment challenge to the code provision was subject to rational basis scrutiny given that the fundamental right to vote was not actually being burdened.
Judge Pappert also rejected the claim that Section 2687(b) infringes on the rights to free speech and association under the First Amendment by narrowing the pool of potential watchers at any polling place to the county level. The judge noted that plaintiffs cited no authority for the proposition that poll-watching is protected by the First Amendment or that it constitutes "core political speech." Instead, it is a state-created function and is subject to limitations by the state. It is distinguished from petition-circulators, for example, because "poll watchers do not discuss or advocate for a political candidate or viewpoint, either explicitly or implicitly." Instead, poll watchers, whatever their private motivations may be, are "performing a public function delegated by the state."
In addition to finding that the constitutional claims failed to satisfy the likelihood of success on the merits necessary to warrant a preliminary injunction, Judge Pappert also found the other factors for preliminary injunction lacking. Additionally, Judge Pappert noted that the Plaintiffs "waited until eighteen days before the election to bring the case": "There was no need for this judicial fire drill and Plaintiffs offer no reasonable explanation or justification for the harried process they created." Moreover, should the code be enjoined, "poll watchers would be allowed to roam the Commonwealth on election day for the first time in the Election Code’s seventy-nine year history—giving the Commonwealth and county election officials all of five days’ notice to prepare for the change."
Judge Pappert, a former Attorney General of Pennsylvania, has authored a very well-reasoned 28 page opinion likely to withstand any appeal. And although the opinion does not mention it, election-watchers are well aware of the context of the Pennsylvania situation: As reported, Republican Presidential Candidate Donald Trump has exhorted people in the more rural portions of the state to "Go down to certain areas and watch and study make sure other people don't come in and vote five times." Meanwhile, the Pennsylvania Democratic Party filed a complaint against the Pennsylvania Republican Party and the Trump Campaign for voter intimidation violating the Ku Klux Klan Act.