Wednesday, March 2, 2016

Tenth Circuit Strikes Disclosure Requirements as to Small Scale Issue Organization

The Tenth Circuit ruled today in Coalition for Secular Government v. Williams that burdensome state disclosure requirements as applied to a small-scale issue-advocacy nonprofit violate the First Amendment. The ruling means that Colorado's disclosure requirements cannot apply against the Coalition for Secular Government's small-scale advocacy against a statewide "personhood" ballot initiative in the 2014 general election.

The Coalition for Secular Government is a small outfit (one person) that devotes itself to printing and distributing material against a proposed "personhood" amendment in Colorado each time it comes up for a vote--the last in 2014. Because the Coalition collects donations to support its operations, the state constitution and implementing laws and regulations require the Coalition to register as an "issue committee" and to disclose information about contributors. These turn out to be quite a hassle, especially for a small group, so the Coalition sued, arguing that they violate the First Amendment.

The Tenth Circuit agreed. The court applied "exacting scrutiny" and concluded that "the minimal informational interest [in disclosure] cannot justify the associated substantial burdens [of compliance]." The court noted that the small-scale nature of the Coalition had an impact on both sides of the balance. As to the informational interest, "the strength of the public's interest in issue-committee disclosure depends, in part, on how much money the issue committee has raised or spent," and the informational interest in the Coalition's spending (about $3,500) was nothing like the informational interest in a group that spent, say, $10 million. As to the burden, the court noted that a small-scale organization like the Coalition faces greater challenges in compliance than a large-scale outfit.

At the same time, the court declined to say whether the state constitutional threshold for issue-committee reporting (a mere $200) constituted a facial violation of the First Amendment. As a result, that threshold is still on the books.

 

March 2, 2016 in Association, Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Federal Judge Finds No Constitutional Violation in Denying Permit to "Wandering Dago" Food Truck

In her extensive opinion in Wandering Dago, Inc.  v. Desito, United States District Judge for the Northern District of New York Judge Mae D'Agostino granted summary judgment for the government against the First Amendment and Equal Protection claims of "Wandering Dago" resulting from the denial of a permit to operate a food truck at the Empire State Plaza in Albany (pictured below), a facility owned by the state of New York and operated by the state Office of General Services (OGS) under Commissioner RoAnn Desito.

 In the summers of 2013 and 2014, OGS administered "The Empire State Plaza Summer Outdoor Lunch Program," permitting vendors to operate food trucks for limited hours on the plaza, intended to provide "lunch options to the approximately 11,000 State employees who work at Empire State Plaza, as well as for visitors to the Capitol, State Museum, performing arts center" - - - known as The Egg - - - and various monuments and memorials in New York's capital city.  As the list of applicants was being processed, the name "Wandering Dago" attracted attention of OGS employees, one who "recognized the term 'dago' as 'a highly offensive term for Italians,'" and after conducting a "computer search" to determine whether this was true, his conclusion was not only "confirmed" but it was "revealed" that the term has been "used to refer to people of Spanish and Portuguese descent, as well as Italians."  OGS denied the application "on the grounds that its name contains an offensive ethnic slur and does not fit with OGS' policy of providing family-friendly policy."  Wandering Dago's application the next year was similarly rejected.

800px-The_Egg_at_Empire_State_Plaza

The First Amendment claims were primary; the Equal Protection Clause claims having been previously dismissed and warranting little more analysis when re-plead.  On the First Amendment, Judge D'Agostino identified the problem common to so much free speech litigation: this case does not fit neatly into any particular First Amendment "framework."  Thus, Judge D'Agostino engaged in several strands of analysis, most prominently being "forum" analysis, but also government speech, employee (contractor) speech, and commercial speech.

As to forum doctrine, Judge D'Agostino rehearses the well-know different types of forum, ultimately deciding that the forum is a "nonpublic forum."  Key to this conclusion, as is so often true, is the definition of the forum.  For Judge D'Agostino, the forum is not Empire State Plaza, but the lunch program - - - "which happens to take place within the grounds that comprise the Empire State Plaza."  That OGS required permits and controlled the "forum" contributes to this view.

Yet even under a nonpublic forum, the government must be "reasonable" and content/viewpoint neutral.  As to the reasonableness, Judge D'Agostino discounted the fact that the policy was not written or even previously articulated.  Somewhat confusingly, the judge decided that the owners of Dago did not intend to express anything particular by the name, and therefore there could be no viewpoint/content discrimination and similarly found that there was no problem with unbridled discretion.  The judge rejected the applicability of  In Re Simon Shiao Tam, in which 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, is unconstitutional because it violates the First Amendment because  it did not involve a forum, but an application of strict scrutiny.  Judge D'Agostino also distinguished cases in which the proprietor was denied the entire opportunity to sell the goods rather than simply not allowed to participate in a particular program.

The particular program aspect supports the judge's conclusion that "government speech" was at issue, relying on Walker v. Texas Sons of Confederate Veterans in which the Court found that Texas's program of specialty license plates was government speech.

While Judge D'Agostino's opinion is well-structured and comprehensive, the analysis regarding content/viewpoint discrimination, no matter the forum type, will most likely be fertile ground for appeal.  On government speech, the case may provide the Second Circuit with an opportunity to clarify the limits of Walker.

March 2, 2016 in Equal Protection, First Amendment, Interpretation, Opinion Analysis, Speech | Permalink | Comments (1)

Tuesday, March 1, 2016

D.C. Circuit Sends Disclosure Requirement Challenge to 3-Judge Court

The D.C. Circuit ruled today in Independence Institute v. FEC that a nonprofit organization's First Amendment challenge to federal electioneering disclosure requirements must go to a three-judge court (and not be dismissed). The ruling keeps alive the nonprofit's challenge to disclosure requirements for its "electioneering communication" under the Bipartisan Campaign Finance Reform Act--even if its constitutional arguments seem, well, weak.

Independence Institute, a 501(c)(3), sought to run a radio ad in favor of a federal statute that would reform federal sentencing, and to encourage citizens to express their support for the law to Colorado's Senator Mark Udall. But Udall was running for re-election at the time, so the radio spot would qualify as an electioneering communication under BCRA. That would trigger disclosure requirements, forcing Independence Institute to disclose its donors to the FEC.

Independence Institute complained, arguing that forced disclosure violated the First Amendment, and sought review by a three-judge court. The district judge denied the request, concluding that the plaintiff's claims were foreclosed by McConnell v. FEC and Citizens United, both of which upheld disclosure requirements against a facial challenge and against one particular as-applied challenge.

A divided panel of the D.C. Circuit reversed. The court said that Independence Institute's arguments passed the low standard the Court recently set in Shapiro v. McManus--denying a three-judge court only when a claim is "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit." In particular, Independence Institute argued that its as-applied claim against the disclosure requirement was different than the as-applied claim that the Court rejected in Citizens United, because Citizens United was a 501(c)(4) organization (not a (c)(3), like Independence), and that Citizens United therefore had a lesser interest in privacy, and that the government had a greater interest in publicly identifying Citizens United's donors. (Independence also argued that the First Amendment bars compelled disclosure unless the electioneering communication is unambiguously campaign-related (not an issue ad, as here). The court didn't address this.)

That seems pretty weak, but not "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit," according to the court.

Judge Wilkins dissented, arguing that the issue's been settled by the Court.

The ruling sends the case to a three-judge court for further proceedings. While this isn't a ruling on the merits--and seems like a poor test case to challenge disclosure requirements--the ruling nevertheless keeps the case alive.

March 1, 2016 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Monday, February 29, 2016

Supreme Court's Oral Argument in Voisine: Does Justice Thomas believe there is a Second Amendment issue?

Today's oral argument in Voisine v. United States centers on  the statutory construction of 18 U.S.C. § 921(a)(33)(A) which defines a "“misdemeanor crime of domestic violence” as an offense that is a misdemeanor AND 

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

The relevance of this definitional section is its application to 18 U.S.C. §922(g)(9) which makes is a federal crime for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence," to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

At issue in Voisine is whether the misdemeanor crimes involving family offenses that can be satisfied with a reckless mens rea are included the definition.  Virginia Villa, arguing for the petitioners Voisine and Armstrong, stressed statutory definitions but the arguments delved into common law definitions as well.  Arguing for the United States, Assistant Solicitor General Ilana Eisenstein stressed Congressional intent, with Justice Ginsburg surfacing the "rule of lenity." 

But the argument then took a constitutional turn.

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This was prompted by questioning from Justice Thomas (seemingly just as Eisenstadt believed her argument had concluded):

 This Court should continue to interpret Section 922(g)(9) in light of that compelling purpose.

If there are no further questions.

JUSTICE THOMAS: Ms. Eisenstein, one question.

Can you give me ­­ this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?

Justice Thomas thereafter made a First Amendment analogy, asked whether the Second Amendment was indefinitely suspended, and pointed out that the underlying misdemeanor need not have involved a firearm.   In considering possible analogies, Justice Kennedy pointed to SORNA which curtails the interstate travel of registered sex offenders.  (Justice Kennedy could have analogized to sex offender cases involving the restrictions on First Amendment rights as well).  Justice Breyer asked whether the Congressional statute was a "reasonable regulation of guns under the Second Amendment given Heller and the other cases with which I disagreed?"  This provoked laughter but was also a poignant reminder that Heller's author was not on the bench given his unanticipated death.  Justice Breyer, however, continued and attempted to make clear that the constitutional question was not clearly before the Court.  It may be before the Court as a matter of constitutional avoidance (the statute should be construed to avoid the constitutional question), but, as Justice Breyer stated:

 So one answer would be, well, maybe so. We aren't facing the constitutional question. We are simply facing the question of what Congress intended. And if this does raise a constitutional question, so be it. And then there will, in a future case, come up with that question. So we ­­ or our point is, we don't have to decide that here.

EISENSTEIN: That's correct, Your Honor.

JUSTICE BREYER: Thank you.

EISENSTEIN: If there are no further questions.

 Ilana Eisenstein was then excused by Chief Justice Roberts.

Justice Thomas broke his own well-remarked upon habit of not asking questions during oral argument; it's been a decade since he has.  But as some Court observers has noticed, he did write notes which were passed to Justice Scalia.  It is difficult to not to make a causal connection in this regard.  Moreover, Justice Thomas assumed a more active role in a case seemingly involving Second Amendment rights, an issue which a future Court might reconsider. 

However, as the Court did in another domestic violence case last term,  Elonis v. United States, look for a decision that engages in statutory construction and avoid the constitutional issue.

 

February 29, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Interpretation, Oral Argument Analysis, Second Amendment, Supreme Court (US) | Permalink | Comments (0)

Thursday, February 25, 2016

District Judge Dismisses Complaint Seeking Judge Cebull's Emails

Recall the controversy in 2012 regarding the racist and sexist emails of Judge Richard Cebull of the District of Montana reportedly regarding President Obama?  Judge Cebull resigned about a year later, as the matter was being investigated by judicial committees. The Ninth Circuit Committee on Judicial Conduct and Disability entered its Decision in January 2014 incorporated the findings of judicial misconduct of other committees, but found that remedial action was "inoperative" given Cebull's retirement. 

In Adams v. Committee on Judicial Conduct and Disability, two Montana journalists sought more information than the Committee included in that decision, including additional emails, and brought suit against the Committee and other defendants.  In an 25 page Order today, Judge Yvonne Gonzalez Rogers dismissed the complaint without leave to amend.  Judge Rogers's decision included several grounds.

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circa 1894 via

First, Judge Rogers concluded that the Committee on Judicial Conduct and Disability was protected by federal sovereign immunity and that the Committee had not waived that immunity.

Second, Judge Rogers considered the Defendants' claim that the plaintiff journalists lacked standing.  Citing First Amendment cases such as Branzburg v. Hayes (1972), Judge Rogers found that the plaintiffs did suffer "injury in fact" as journalists.  However, Judge Rogers concluded that the plaintiff journalists failed to satisfy another element of standing, the causation inquiry, stating that "Plaintiffs have not alleged that their injury is fairly traceable to any conduct of the Committee, at least not with clarity."  She thus dismissed the complaint for lack of standing.

Third, Judge Rogers entertained the Committee's arguments that it was protected by judicial immunity.  Judge Rogers found that the Committee had both judicial immunity and quasi-judicial immunity, and granted the motion to dismiss on both these grounds.

Fourth, the Committee sought judicial deliberative privilege regarding Judge Cebull's emails.  However, Judge Rogers found that the particular emails sought were not "in pertinent part, communications relating to official judicial business."

Fifth and finally, was the First Amendment claim.  The Defendants claimed that the emails were "investigative materials" shielded from First Amendment disclosure by the confidentiality provision of the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C section 360.  Judge Rogers framed the issue thusly:

(i) assuming Defendants are correct that the emails are “investigative materials” covered by 360(a), is that confidentiality restriction consistent with the First Amendment?; and alternatively,

(ii) assuming the emails are not “investigative materials” covered by 360(a), does the First Amendment provide any right or claim to compel their disclosure by Defendants?

The Court turns to the Press-Enterprise II framework to determine if, under either formulation, Plaintiffs’ access claim is one that meets the historical experience and logic criteria, such that a qualified First Amendment right of access exists.

Using the experience and policy framework of Press Enterprise II (1986) Judge Rogers concluded that under either formulation of the issue, the press did not sustain a claim for access to the emails. Instead, the "more general rule set forth by the Supreme Court in Houchins [v. KQED (1978) ] — that the First Amendment right of the public or the press does not grant unlimited access to all government information or information within the government’s control—prevails.

Thus, it seems we will never be have an opportunity to read  the other (presumably offensive) emails that Judge Cebull sent through his official judicial accounts when he was a sitting judge.  Given the multiple grounds on which Judge Rogers relied, and the well-reasoned First Amendment discussion,  any appeal would have much to overcome in order to be successful.

 

February 25, 2016 in Courts and Judging, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Apple Responds to Order to "Unlock" IPhone

In its Motion to Vacate filed today, Apple, Inc. argued that the Magistrate's Order Compelling Apple, Inc. to Assist Agents in Search of an Apple IPhone was not supported by the All Writs Act and is unconstitutional. 

The constitutional arguments are basically three:

First, embedded in the argument that the All Writs Act does not grant judicial authority to compel Apple to assist the government is the contention that such would violate the separation of powers.  Crucial to this premise is the Communications Assistance for Law Enforcement Act (CALEA), which Apple contends does not apply to Apple and which has not been amended to do so or amended to provide that companies must provide decryption keys. Absent such an amendment, which was considered as CALEA II but not pursued, the courts would be encroaching on the legislative role. 

For the courts to use the All Writs Act to expand sub rosa the obligations imposed by CALEA as proposed by the government here would not just exceed the scope of the statute, but it would also violate the separation-of-powers doctrine. Just as the “Congress may not exercise the judicial power to revise final judgments,” Clinton v. Jones (1997), courts may not exercise the legislative power by repurposing statutes to meet the evolving needs of society, see Clark v. Martinez (2005)(court should “avoid inventing a statute rather than interpreting one”) see also Alzheimer’s Inst. of Am. Inc. v. Elan Corp. (N.D. Cal. 2013) (Congress alone has authority “to update” a “technologically antiquated” statute “to address the new and rapidly evolving era of computer and cloud-stored, processed and produced data”). Nor does Congress lose “its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution” in times of crisis (whether real or imagined). Youngstown Sheet & Tube Co. v. Sawyer (1952).

[citations abbreviated].  Apple adds that "whether companies like Apple should be compelled to create a back door to their own operating systems to assist law enforcement is a political question, not a legal one," citing Baker v. Carr (1962). 

Second, Apple makes a cursory First Amendment argument that commanding Apple to "write software that will neutralize the safety features that Apple has built into the iPhone" is compelled speech based on content and subject to exacting scrutiny.  Apple also contends that this compelled speech would be viewpoint discrimination:

When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit. The government disagrees with this position and asks this Court to compel Apple to write new software that advances its contrary views.

Third, and even more cursorily, Apple makes a substantive due process argument under the Fifth Amendment.  Here is the argument in full:

In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due process are not . . . subject to mechanical application in unfamiliar territory.”).

Interestingly, there is no Fourth Amendment argument.

The main thrust of Apple's argument is the statutory one under the All Writs Act and the application of the United States v. New York Telephone Co. (1977) factors that the government (and Magistrate) had relied upon.  Apple disputes the burden placed on Apple that the Order would place.  Somewhat relevant to this, Apple contends that "Had the FBI consulted Apple first" - - - before changing the iCloud password associated with one of the relevant accounts - - - "this litigation may not have been necessary." 

Iphonex

 

February 25, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), First Amendment, News | Permalink | Comments (0)

Wednesday, February 24, 2016

Sixth Circuit Finds Ohio's False Campaign Speech Law Violates First Amendment

In a relatively brief opinion in Susan B. Anthony List v. Driehaus, a panel of the Sixth Circuit found that Ohio's false campaign statute, Ohio Rev. Code § 3517.21(B)(9),  violates the First Amendment.

Recall that the Sixth Circuit had previously decided that the constitutional challenge was not ripe for review, but that the United States Supreme Court unanimously reversed in June 2014.  On remand, District Judge Timothy Black concluded that the statute violated the First Amendment.

Hannah
Hannah Trapnel, a Quaker and a pretended prophet. Line engraving after R. Gaywood, 1823, via

The Sixth Circuit panel reasoned that any Sixth Circuit precedent supporting the view that falsehoods were categorically excluded from the First Amendment had been abrogated by United States v. Alvarez,  (the "stolen valor" case).  Instead, the panel found that the Ohio law both targeted core speech and was a content-based regulation, and thus strict scrutiny was applicable.  The Sixth Circuit reasoned that

Ohio’s interests in preserving the integrity of its elections, protecting “voters from confusion and undue influence,” and “ensuring that an individual’s right to vote is not undermined by fraud in the election process” are compelling.

However, the means chosen were not narrowly tailored:

in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.

Additionally, the Sixth Circuit noted:

Ohio’s political false-statements laws have similar features to another Ohio election law that the Supreme Court found unconstitutional. In McIntyre [v. Ohio Elections Committee (1995)] , the Supreme Court struck down Ohio’s election law prohibiting anonymous leafleting because its prohibitions included non-material statements that were “not even arguably false or misleading,” made by candidates, campaign supporters, and “individuals acting independently and using only their own modest resources,” whether made “on the eve of an election, when the opportunity for reply is limited,” or months in advance. Ohio’s political false-statements laws have all of the same flaws. Such glaring oversteps are not narrowly tailored to preserve fair elections.

The use of McIntyre is an interesting one because the "right to be anonymous" recognized in McIntyre seemed to rest in part on the government interest in ensuring truthfulness and cited the Ohio campaign falsehoods law in support.

Given that the court did recognize as compelling the government's interests in addressing lies in campaigns, is there any possibility that a government could craft a narrowly tailored regulation?  It seems doubtful.

February 24, 2016 in Campaign Finance, First Amendment, Interpretation, Opinion Analysis, Ripeness | Permalink | Comments (0)

Daily Read: Justice Scalia on Judicial Appointments as Political Prerogative

On this anniversary of Marbury v. Madison (decided February 24, 1803), and given the current controversies regarding the appointment of Justice Scalia's successor after his unexpected death, Justice Scalia's views on the political nature of judicial appointments, including those to the United States Supreme Court, is worth a read. 

Dissenting in Rutan v. Republican Party of Illinois (1990), Scalia wrote:

Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 1. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.

The Court's majority opinion - - - authored by Justice William Brennan, a Democrat appointed to the United States Supreme Court by the Republican President Dwight Eisenhower - - - held that the Illinois governor's practice of implementing certain austerity measures in state government in accordance with political affiliation violated the First Amendment rights of government employees.  Brennan's opinion for the Court notably began:

To the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns (1976), and Branti v. Finkel (1980), decided that the  First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Today we are asked to decide the constitutionality of several related political patronage practices — whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not.

What the Constitution does - - - or does not - - - provide regarding the "spoils" of judicial appointment is being hotly contested.  And in this, Marbury v. Madison may be relevant as more than illustration should the controversy become subject to judicial review.

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John Marshall Statute Outside United States Supreme Court Building via

 

February 24, 2016 in Courts and Judging, Current Affairs, First Amendment, History, Interpretation, Supreme Court (US) | Permalink | Comments (1)

Tuesday, February 23, 2016

Federal District Judge Finds Recording Police Conduct Not Protected by First Amendment

In a Memorandum Opinion in Fields v. City of Philadelphia, recently appointed United States District Judge for the Eastern District of Pennsylvania, Mark Kearney held that the First Amendment does not protect video-recording of the police absent a "stated purpose of being critical of the government." 

For Judge Kearney, video-recording is conduct and there is no "expressive" element unless there is an explicit intent of being critical of police conduct. Mere "observation," Judge Kearney wrote, is not expressive.  It is not within the First Amendment unless the observers are "members of the press."

Judge Kearney rather unconvincingly distinguished the First Circuit's 2011 opinion in Glik v. Cunniffee, by stating [in a footnote], "In Glik, the plaintiff expressed concern police were using excessive force arresting a young man in a public park and began recording the arrest on his cell phone and the police then arrested plaintiff."  Even if valid, this distinction is problematical.  It may be pertinent with regard to one plaintiff, Richard Fields, who took a picture of 20 or so police officers outside a home hosting a party.  However, with regard to the other plaintiff, Amanda Geraci, who the judge notes is a "self-described 'legal observer'" with training, the distinction seems to be one without a difference: she was at a protest and "moved closer" to videotape an officer arresting one of the protesters when a police officer restrained her and prevented her from doing so.

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image via

Judge Kearney thus granted the motion for summary judgment on the First Amendment claims.  The judge did, however, deny summary judgment on the Fourth Amendment claims for unreasonable search and false arrest (for Fields) and excessive force (for Geraci).  Yet however these claims are resolved, the First Amendment ruling is one that is exceedingly suitable for Third Circuit review.

 

February 23, 2016 in Courts and Judging, Criminal Procedure, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, February 17, 2016

Magistrate Orders Apple to "Unlock" iPhone of Deceased Shooter

A California Magistrate has issued an "Order Compelling Apple, Inc. to Assist Agents in Search" exactly as requested by the government, with the exception of the word "Proposed" crossed off in Order's title, that requires Apple to provide "reasonable technical assistance in obtaining access to data on the subject device."  The subject device is an Apple iPhone seized from a black Lexus; this is the black Lexus that was driven by the so-called "San Bernardino shooters."  The government's motion explains some of the technology involved and argues that the All Writs Act, 28 USC §1651, authorizes the Order.

Iphone_3GS-1The Order specifies that the "reasonable technical assistance" shall accomplish these functions:

  • (1) it will bypass or disable the auto-erase function whether or not it has been enabled;
  • (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE; and
  •  (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.

Apple is resisting the Order.  In an "open letter" to customers, the CEO of Apple has stated:

Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority.

The government would have us remove security features and add new capabilities to the operating system, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone by “brute force,” trying thousands or millions of combinations with the speed of a modern computer.

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.

We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications.

While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.

Over at ars technica, Dan Goodin argues:

It would be one thing for the court to order Apple to brute force this one device and turn over the data stored on it. It's altogether something else to require that Apple turn over powerful exploit software and claim that whatever digital locks are included can't be undone by a determined adversary. That's why it's no exaggeration for Cook to call Tuesday's order chilling and to warn that its prospects for abuse of such a backdoor are high.

Although the Order is directed at one "subject device," Apple's compliance with the Order would make all our devices subject to government search.

 

February 17, 2016 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, Privacy, Web/Tech | Permalink | Comments (3)

Tuesday, February 16, 2016

Union Fair Share Fees Probably Spared, For Now

One of the more significant implications of a now (likely) equally divided Supreme Court is that public-sector-union fair-share requirements will almost surely stay on the books. That's because a 4-4 tie will affirm the lower court's ruling upholding the requirements, without setting a precedent, or because the Court could hold the case over until next Term, maintaining the status quo. Either way, California's fair-share requirement, and Abood (and other state fair-share requirements) will stay on the books--unless and until a new Justice, hostile to fair share, is appointed.

The Court heard oral arguments in the First Amendment challenge to California's public-sector fair-share requirement, Friedrichs v. California Teachers Association, last month. And the arguments confirmed predictions going in--that the Court was almost certain to strike fair-share requirements by a 5-4 vote, along conventional ideological lines.

But with Justice Scalia's death, and without a replacement, the Court will almost surely split 4-4. That will leave the Ninth Circuit ruling in place, upholding the fair-share requirement, and leaving Abood on the books.

Alternatively, the Court might hold the case over until next Term. If so, California's requirement will stay in place, and Abood will stay on the books--unless a Justice hostile to the requirement is appointed in the meantime.

All this means that public-sector fair-share is spared for now. And if a new Justice sides with the progressives, it may be spared for a while longer.

February 16, 2016 in Cases and Case Materials, First Amendment, News | Permalink | Comments (0)

Tuesday, February 9, 2016

Federal District Judge Enters Preliminary Injunction Against Center for Medical Progress, Anti-Abortion Group

The Center for Medical Progress (CMP)  - - - including its founder David Daleiden, others (and their aliases) associated with the nonprofit, as well as "fake" companies - - - has been in the news a great deal of late. 

Daleiden and employee Merritt have recently been indicted in connection with an “investigation” of Planned Parenthood and the publication of a “heavily edited” video charging Planned Parenthood with unauthorized selling of fetal tissue. The video has prompted some lawmakers to urge defunding of Planned Parenthood and, interestingly, the grand jury indictment of Daleiden and Merritt in Texas sprung from an inquiry into whether Planned Parenthood had violated any criminal laws.  Planned Parenthood has recently sued CMP under RICO and for various tort-like claims. 

Judge William Orrick of the Northern District of California has issued a preliminary injunction that some might view as a prior restraint against CMP and its associates in an Order in National Abortion Federation v. Center for Medical Progress.  In July, Judge Orrick issued a TRO.  The discovery orders and motions were quite contentious, with CMP seeking relief from the Ninth Circuit, which was denied, and Justice Kennedy (in his role as Justice for the Ninth Circuit) refusing to intervene. The preliminary injunction prohibits:

(1) publishing or otherwise disclosing to any third party any video, audio, photographic, or other recordings taken, or any confidential information learned, at any NAF annual meetings;

(2) publishing or otherwise disclosing to any third party the dates or locations of any future NAF meetings; and

(3) publishing or otherwise disclosing to any third party the names or addresses of any NAF members learned at any NAF annual meetings.

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Image by Jacek Halicki circa 1982 via

This injunction relates primarily to the enforcement of a “confidentiality agreement” required by attendees of the NAF national conference, which Center for Medical Progress admitted violating, engaging in over 250 hours at each of two conferences (2014 and 2015), including of personal conversations, intended - - - as CMP founder Daleiden admits, to “trap people into saying something really messed up” and to say the words “fully intact baby.” Judge Orrick found that enforcement of the confidentiality agreement does not violate the First Amendment, citing Cohen v. Cowles Media (1991). Judge Orrick also found that this was not a “typical ‘newsgathering’ case” in which "prior restraints" would be disfavored, but instead had exceptional circumstances:

The context of how defendants came into possession of the NAF materials cannot be ignored and directly supports preliminarily preventing the disclosure of these materials. Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project – achieved in large part from the infiltration – thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct. Defendants did not – as Daleiden repeatedly asserts – use widely accepted investigatory journalism techniques. Defendants provide no evidence to support that assertion and no cases on point.

One of the cases that Judge Orrick's footnote distinguishes is Judge Winmill's decision in Animal Defense League v. Otter, finding Oregon's ag-gag law unconstitutional as a violation of the First Amendment, which is presently on appeal to the Ninth Circuit.  Undoubtedly, Center for Medical Progress will eventually follow the path to the Ninth Circuit.  Taken together, these cases raise controversial issues about the First Amendment's protection for what some might name "investigative journalism" and what others view as "illegal actions."

February 9, 2016 in Abortion, Current Affairs, First Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (0)

Friday, February 5, 2016

Justice Souter Upholds Statute Authorizing Public Employee Union by Child Care Workers Against First Amendment Challenge

Justice Souter - - - retired from the United States Supreme Court but sitting by designation on a First Circuit panel - - - declined to extend the Court's decision in Harris v. Quinn to the context of home child care workers in the opinion in D'Agostino v. Baker. 

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Justice David Souter, who served on the United States Supreme Court 1990- 1999

At issue was Massachusetts Gen. Laws ch. 15D, § 17(b), providing that family child care providers "shall be considered public employees . . . solely for the purposes of . . . chapter 150E," the statute authorizing employees in public service to organize for collective bargaining. The majority of the family child care providers chose Service Employees International Union (SEIU) as their exclusive agent for bargaining collectively with the state.  And while the statute did not mandate that any child care provider join the union or contribute any money to the union, the plaintiffs challenged the statute as violating their First Amendment rights, especially free association.

Writing for the unanimous panel, Souter opined that the "disposition of the constitutional claims turns on precedent, and the appellants' principal arguments probe the vitality of that precedent in light of recent developments."  For Souter, the precedents of Abood v. Detroit Board of Education (1977)  and Minnesota State Board for Community Colleges v. Knight (1984) remain controlling, despite Harris v. Quinn:

But the Harris distinction does not decide this case. While we can agree with the appellants in assuming the comparability of Harris's personal assistants and the child care providers here, the issues at stake in the two cases are different. Unlike the Harris litigants, the appellants are not challenging a mandatory fee; indeed, an agency fee previously enforced against the providers here was eliminated after Harris came down. What Harris did not speak to, however, was the premise assumed and extended in Knight: that exclusive bargaining representation by a democratically selected union does not, without more, violate the right of free association on the part of dissenting non-union members of the bargaining unit. Harris did not hold or say that this rule was inapplicable to "partial" employees covered by a collective bargaining agreement. Harris, in fact, did not so much as mention Knight, and precedent supports applying its rule here.

Souter was not on the Court when it decided Abood, Knight, or Harris.  And of course he is not on the Court as it deliberates Friedrichs v. California Teachers Ass'n, which may be the "demise" of public fair share union dues and the rejection of the  precedent on which Souter is relying here.

February 5, 2016 in Courts and Judging, First Amendment, Interpretation, Supreme Court (US) | Permalink | Comments (0)

Thursday, January 28, 2016

Park Service Inauguration Regs Don't Violate Free Speech

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Steven D. Schwinn,  John Marshall Law School

Judge Paul Friedman (D.D.C.) ruled today in ANSWER v. Jewell that the National Park Service regs setting aside a portion of the Presidential inauguration route for the inauguration committee and banning sign supports do not violate free speech.

The case challenged NPS regulations that set aside 18% of the sidewalk and park space along the inauguration parade route for the Presidential Inauguration Committee, a private, non-profit that represents the interests of the President-Elect, and requires other groups that wish to protest or speak to get a permit. Judge Friedman upheld the regulation against a First Amendment challenge, ruling that the PIC was government speech (under the factors in Walker v. Texas and Pleasant Grove City v. Summum), that the set-aside for PIC therefore did not constitute viewpoint-based discrimination against other groups that wished to speak against PIC's message, and that the set-aside and permit requirement were content neutral and otherwise satisfied the test for speech in a public forum.

Judge Friedman also ruled that the ban on sign-supports was content-neutral and satisfied the public forum test. (The government's interests were safety--sign-supports could be used as a weapon--and marshaling parade viewers through security checkpoints quickly and efficiently.) Judge Friedman noted that this ruling conflicted with the Ninth Circuit in Edwards v. Coeur d'Alene, however: the Ninth Circuit said in that case that a ban on sign-supports failed to leave open ample alternative channels of communication, because "there is no other effective and economical way for an individual to communicate his or her message to a broad audience during a parade or public assembly than to attach a handle to his sign to hoist it in their air."

The plaintiff in the case, the anti-war and anti-racism group ANSWER, may have inadvertently contributed to the result: Judge Friedman wrote at several points in the opinion that ANSWER had touted its previous protests, under similar restrictions, as successful--apparently demonstrating that ANSWER can get its message out effectively (that it has ample alternative channels for communication) even with the NPS regs.

January 28, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, January 21, 2016

No Damages for Enforcing State Residency Requirement for Petition Circulators

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Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled this week in Citizens in Charge v. Husted that Ohio Secretary of State Jon Husted enjoyed qualified immunity against a damages claim that arose out of his enforcement of Ohio's law that prohibits out-of-staters from circulating petitions within the state to propose new legislation and constitutional amendments.

The court granted immunity because it said that Ohio's law didn't clearly violate the Constitution. In support, it pointed to a circuit split on the question whether a state law that requires in-state residency to circulate a petition violates the First Amendment.

In so ruling, the court came close to saying that an official's enforcement of a state statute is per se reasonable, if no court has (yet) ruled the law unconstitutional--a result that puts a heavy thumb on the scale in favor of qualified immunity (and against plaintiffs who seek to recover damages for constitutional torts). The outer boundary is only when a law is "grossly and flagrantly unconstitutional." (The court gave as one example separate-but-equal racial discrimination.) The court explained:

So far as the parties' research has revealed and so far as our own research has uncovered, the Supreme Court has never denied qualified immunity to a public official who enforced a properly enacted statute that no court had invalidated. This indeed would seem to be the paradigmatic way of showing objectively reasonable conduct by a public official.

. . .

Any other approach would place risky pressures on public officials to second-guess legislative decisions. When faced with a statute of questionable validity, executive actors would find themselves forced to choose between applying the law (and subjecting themselves to monetary liability) or declining to do so (and subjecting themselves to a mandamus lawsuit). When personal liability is added to the mix, one could well imagine the balance tipping toward non-enforcement in close cases, all the while sacrificing the legislature's considered judgments about a statute's unconstitutionality. That is not a recipe for good government or for encouraging public officials to act independently.

January 21, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis | Permalink | Comments (1)

Tuesday, January 19, 2016

Court Hears Oral Arguments in First Amendment Public Employee Case: Heffernan v. City of Paterson

The Court heard oral arguments in Heffernan v. City of Paterson, NJ today, a situation presenting a question that Justice Alito at one point described as "like a law school hypothetical." Heffernan, a police officer, was demoted for his perceived political activity: he had decided to stay neutral but was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn" and was therefore demoted.

At the heart of the oral argument is a large question about the purpose (and one might say the direction) of the First Amendment.  On one view - - - that of the City of Paterson as represented by Tom Goldstein - - - the First Amendment requires that a person be exercising the right of free association (or speech): "It's called an individual right, not a government wrong."  On the other view - - - that of Jeffrey Heffernan represented by Mark Frost - - - the First Amendment restrains the government from acting to infringe First Amendment rights, even if it does so in error.  This was perhaps best expressed by Justice Ginsburg:

And I thought ­­ - - - and unlike Justice Scalia ­­ - - - that the thrust of the First Amendment is operating on government. It says government, thou shalt not ­­ - - - thou shalt not act on the basis of someone's expression, speech or belief.

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Justice Ginsburg broached the analogy to Title VII, which arguably allows perceived status to support a claim, was quickly distinguished by Justice Scalia as being a statute that focuses on the employer's discrimination rather than the employee, unlike the First Amendment.  There was no reference to the text of the First Amendment which of course begins "Congress shall make no law . . ." which could be read as emphasizing the restriction on government.

Justice Kennedy asked the first question of the argument to Mark Frost as he was just finishing his opening by requesting an articulation of the right: "How would you define the right that your client wishes this Court to vindicate?"  But although some other Justices seemed to believe there was no actual right, Justice Kennedy later seemed more equivocal:

JUSTICE KENNEDY: You want this Court to  hold that the government of the United States has a right to ascribe to a citizen views that he or she does not hold.

MR. GOLDSTEIN: Justice Kennedy, I think that that is not a First Amendment violation.

The Solicitor General's views on behalf of the United States, represented by Ginger Anders, supported the employee.  Ms. Anders articulated the right as "a First Amendment right not to have adverse action taken against him by his employer for the unconstitutional purpose of suppressing disfavored political beliefs" and later as the "right not to be subject to a test of political affiliation." 

Chief Justice Roberts at several points expressed concerns about a possible "flood of meritless lawsuits" if the employee does not have to show he was actually exercising a protected right. 

The Justices seemed divided; Justice Kennedy may (again) be the "swing" vote on this one.

January 19, 2016 in Association, Elections and Voting, First Amendment, Oral Argument Analysis, Speech | Permalink | Comments (2)

Saturday, January 16, 2016

United States Supreme Court Grants Certiorari in Free Exercise State Funding Case: Trinity Lutheran Church of Columbia, Mo.

The United States Supreme Court has granted certiorari in Trinity Lutheran Church of Columbia, Mo. v. Pauley regarding a Free Exercise and Equal Protection challenge to a denial of state funding that was based on a state constitutional provision prohibiting state funds be given to religious organizations. 

As the Eighth Circuit opinion ruling for the state, had phrased it, "Trinity Church seeks an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church."  The Eighth Circuit relied in part on Locke v. Davey, 540 U.S. 712 (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology."  For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.  

There are actually two Missouri constitutional provisions, Art. I §7 and Art. IX §8, which as the Eighth Circuit noted, are "not only more explicit but more restrictive than the Establishment Clause of the United States Constitution,” quoting a Missouri Supreme Court decision.  The provisions were initially adopted in 1870 and 1875, and re-adopted in the Missouri Constitution of 1945, the current constitution.  The first provision is the one at the heart of this dispute.  Placed in the state constitution's "Bill of Rights," Art. I §7 provides:

That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect, or creed of religion, or any form of religious faith or worship.

It was in reliance on this state constitutional provision that the state Department of Natural Resources denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground.  To supply such funds, the state officials decided, would violate the state constitution. 

Trinity Lutheran Church articulated the issue in its petition for certiorari as

Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

It argues that the Eigth Circuit's decision was not "faithful" to Locke v. Davey because the playground resurfacing program was purely secular in nature, unlike in Locke.  But this might mean that the state constitutional provisions defining their own boundaries regarding "establishment" of religion are unconstitutional.

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January 16, 2016 in Equal Protection, Federalism, First Amendment, Religion, Speech, Supreme Court (US) | Permalink | Comments (0)

Friday, January 15, 2016

New York State Appellate Court Rejects First Amendment Claim in Same-Sex Wedding Discrimination Case

In its opinion in Gifford v. McCarthy, an appellate court in New York upheld the decision of the State Division of Human Rights that the owners of Liberty Ridge Farm, a wedding venue, were guilty of an unlawful discriminatory practice based upon sexual orientation when they refused to provide services for a same-sex wedding.  Writing for the unanimous five judge panel, Presiding Justice Karen Peters concluded that the venue was clearly a place of public accommodation within the anti-discrimination law and that discrimination based upon sexual orientation clearly occurred. 

16yr-logo-2015-revOn the constitutional issues, Justice Peters found the arguments under both the First Amendment and New York's similar provisions without merit.  Regarding the First Amendment Free Exercise of religion claim, Justice Peters concluded that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes)," citing  Employment Div., Dept. of Human Resources of Ore. v Smith (1990). She noted that the "fact that some religious organizations and educational facilities are exempt from the [state] statute's public accommodation provision does not, as petitioners claim, demonstrate that it is not neutral or generally applicable." 

Applying New York's Free Exercise provision under which the infringement is balanced against the state interests, and Justice Peters wrote:

While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination."

Thus the court rejected the free exercise claims.  Similarly, the court rejected the free speech claims of compelled speech and free association.  On compelled speech, Justice Peters' opinion for the court concluded that the provision of a wedding venue was not expressive: 

Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage. Like all other owners of public accommodations who provide services to the general public, the Giffords must comply with the statutory mandate prohibiting discrimination against customers on the basis of sexual orientation or any other protected characteristic. Under such circumstances, there is no real likelihood that the Giffords would be perceived as endorsing the values or lifestyle of the individuals renting their facilities as opposed to merely complying with anti-discrimination laws.

The court also held that Liberty Farms was not an "expressive association" but a business with the "purpose of making a profit through service contracts with customers." However, the court added that even if Liberty Ridge were to be deemed an expressive enterprise, "a customer's association with a business for the limited purposes of obtaining goods and services – as opposed to becoming part of the business itself – does not trigger" expressive association.

In upholding the application of the anti-discrimination law against First Amendment challenges, the New York appellate opinion joins other courts that have reached the same conclusion: the New Mexico courts in Elane Photography to which the United States Supreme Court denied certiorar and the Colorado courts in Masterpiece Cakeshop.  The UK Supreme Court's decision in Bull v. Hall is also consistent with this trend.  Nevertheless, the issue is far from settled and more decisions likely.

UPDATE:  The owners of Liberty Ridge will reportedly not appeal.

January 15, 2016 in Association, Cases and Case Materials, Current Affairs, Family, First Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Religion, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1)

En Banc Ninth Circuit Finds "Stolen Valor" Falsely Wearing Medal Provision Violates First Amendment

In its opinion in United States v. Swisher authored by Judge Sandra Ikuta, the en banc Ninth Circuit found that the provision in 18 USC §704(a) that criminalized the unauthorized wearing of any military medal violates the First Amendment.  Swisher was photographed wearing "the Silver Star, Navy and Marine Corps Ribbon, Purple Heart, Navy and Marine Corps Commendation Medal with a Bronze “V,” and UMC Expeditionary Medal," none of which he ever received.

The Court's opinion occurs in the shadow of the United States Supreme Court's 2012 decision in United States v. Alvarez which held that 18 USC §704(b) - - - prohibiting false statements about military medals - - - violated the First Amendment.  A panel of the Ninth Circuit had previously held in United States v. Perelman that Alvarez was not dispositive regarding §704(a) because wearing the medal was conduct rather than speech, akin to "impersonation" rather than expression.  The en banc opinion in Swisher explicitly overruled Perelman "to the extent inconsistent with this opinion."  

1024px-Purple_Heart_caseThe en banc opinion in Swisher held that while wearing the medal may have been expressive conduct, the government's purpose in regulating that conduct was aimed at regulating the message conveyed by the expressive conduct rather than the conduct itself.  Judge Ikuta's opinion interestingly relied upon the Court's decision last Term in Reed v. Town of Gilbert as "authoritative direction for differentiating between content-neutral and content-based enactments." 

Thus, Judge Ikuta's opinion determined that the lenient standard of United States v. O'Brien for expressive conduct was not the correct analysis and instead the standard as articulated in Alvarez should apply.  But what is the Alvarez standard, given that Justice Kennedy's opinion for a plurality applied an exacting scrutiny standard and Justice Breyer's concurring opinion applied more of an intermediate scrutiny test?  The en banc Ninth Circuit adroitly circumvented the need to decide the United States Supreme Court's holding by beginning with Justice Breyer's "less demanding standard": consideration of the seriousness of the speech related harm the provision will likely cause; evaluating the nature and importance of the provision's countervailing objectives; and the extent to which the provision will tend to achieve those objectives and whether there are other, less restrictive means, of doing so."  The en banc Ninth Circuit found that the criminalizing of inappropriately wearing military medals failed the intermediate Breyer standard and thus would obviously fail the stricter more exacting scrutiny standard of the plurality.

Not surprisingly Judge Bybee, who wrote a vigorous dissent in 2010 when a panel of the Ninth Circuit held the provision in Alvarez unconstitutional, dissented in Swisher, joined by Judges N.R. Smith and Watford.

The practical consequences of the Ninth Circuit's en banc opinion are marginal: the statute has already been amended and Swisher was also convicted on other provisions including fraud.  However, the doctrinal consequences of the opinion include an important demonstration of an application of Alvarez and the even more important holding clarifying that "wearing" is not always mere conduct evaluated at the lowest levels of First Amendment scrutiny.

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January 15, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Recent Cases, Speech | Permalink | Comments (0)

Wednesday, January 13, 2016

Brennan Center on Campaign Finance

Check out this new Brennan Center report on the recent spate of sharply divided Supreme Court rulings that opened the spigot on money in politics.

In Five to Four, Brennan Center attorneys Lawrence Norden, Brent Ferguson, and Douglas Keith show how "six closely divided Supreme Court decisions in the last decade contributed to some of the most disturbing trends in American elections"--things like super PACs, dark money, unlimited corporate and union spending, and radically increased total contributions to candidates and parties. (Each of these gets its own chapter.)

Four of the nine justices strongly disagreed with these decisions, and if one more justice had joined them, our ability to regulate big money in politics, and to give ordinary Americans more of a voice in the political process, would be very different today.

In other words, the last few years of campaign financing are not "normal," or "inevitable," or "just the way things are." To the contrary, in the modern era, they are the aberrant result of a single swing vote on the Supreme Court, which upended decades of carefully crafted campaign finance laws, and they can be reversed.

January 13, 2016 in Campaign Finance, First Amendment, News, Speech | Permalink | Comments (0)