Monday, February 27, 2017
The Court heard oral argument in Packingham v. North Carolina in which the North Carolina Supreme Court upheld the constitutionality of a state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access certain commercial social networking sites. Packingham was convicted of a felony for his facebook page on which he wrote " Thank you Jesus. God is good" regarding a result on his parking ticket.
Justice Kagan distilled the importance of the issue in her questioning of the North Carolina Deputy Attorney General, Robert Montgomery:
JUSTICE KAGAN: So --so a --so a person in this situation, for example, cannot go onto the President's Twitter account to find out what the President is saying today?
JUSTICE KAGAN: Not only the President. I mean, we're sort of aware of it because the President now uses Twitter. But in fact, everybody uses Twitter. All 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucial --crucially important channel of political communication. And a person couldn't go onto those sites and find out what these members of our government are thinking or saying or doing; is that right?
Montgomery answered both queries in the affirmative, but suggested that Packingham could go onto the websites of government officials to learn their views.
The possibility of ample available alternatives, the question of narrow tailoring, and the overbreadth of the statute were the linchpins of the First Amendment argument, as David Goldberg representing Packingham explained when Justice Kennedy inquired about the "doctrinal choices" supporting an argument that the statute was unconstitutional. There were analogies to felon disenfranchisement and felons restricted Second Amendment rights, but Goldberg insisted that the First Amendment was different.
Prompted by this distinction based in part on originalist invocations, Chief Justice Roberts seemed to eschew originalism, given that the issue involves "access to websites and all the sort of things we're dealing with here." For his part, Justice Alito tried "to translate this into terms that would be familiar at the time of the adoption of the First Amendment," analogizing to a state law prohibiting anyone convicted of kidnapping children from visiting a nursery school. Goldberg first noted that the First Amendment did not apply to the states at the time of the Framers, but then stated that there was not a First Amendment right to visit a nursery school.
The notion that internet social sites are "virtual places" like playgrounds was one advanced by the state attorney, but one that the Justices did not seem to accept. Yet even if the virtual-spatial analogy was pertinent, the type of prophylactic rule upheld in Burson v. Freeman (1992) regarding a prohibition of campaigning within 100 feet of a polling place, seemed unpersuasive. Montogomery seemed to contend this was North Carolina's best case, to which Justice Kennedy replied that it "does not help you at - - - at all." The conversation continued:
JUSTICE KENNEDY: That was --number one, it was applied to everyone. It was 100 yards. You could have all the political speech in the world outside the --was it 100 yards or 100 feet, whatever it was. It seems to me that --do you have --do you have any better case than that?
MONTGOMERY: Well, the only --the reason -
JUSTICE KENNEDY: If you cite Burson, I think --I think you lose.
MONTGOMERY: The reason that that case is the one that I mentioned is because the rationale for that was that these kinds of crimes that happened in that zone often go undetected -
JUSTICE KAGAN: Mr. Montgomery, I agree with you. That's your closest case. It's the one that I asked Mr. Goldberg about, because it's the only case that I know of where we've permitted a prophylactic rule where we've said not all conduct will have these dangerous effects, but we don't exactly know how to separate out the dangerous --dangerous speech from the not-dangerous speech, so we're going to have a prophylactic rule. That is like one out of a zillion First Amendment cases that we've decided in our history.
And as Justice Kennedy says, there are many reasons to think it's distinguishable from this one.
MONTGOMERY: Well, the fact that it applied to all in Burson, I believe, makes our case a better case because it doesn't apply to all. It applies to sex offenders who have committed crimes, who have shown that they cannot conform to the law and are likely to be recidivists. So the fact that it's a narrower group is not --does not make it more problematic, but makes it --makes it better than Burson.
JUSTICE KENNEDY: Well, that was --that was not the rationale of Burson v. Freeman. Under that rationale, you --you could have said that it applies only to members of a political party and it would have been narrower. That would make it worse. The Petitioner here is saying you are singling me out and saying that I can't have the First Amendment rights that everybody else does. That's exactly the opposite of what was happening in Burson.
MONTGOMERY: But it wouldn't be like singling out a political party. These are people who have committed sex offenses. So, again, they have had certain disabilities already, civil disabilities. . . .
While making predictions of outcomes based on oral arguments is always fraught, the fact that Mr. Montgomery did not have a better "best case" than Burson to support the constitutionality of the North Carolina statute strongly suggests the case will be reversed.
Wednesday, February 22, 2017
In a brief Order in IMBD v. Becerra, federal district judge Vince Chhabria enjoined California AB 1687, added as §1798.83.5, stating that "it's difficult to imagine how AB 1687 could not violate the First Amendment."
The statute provides that a commercial online entertainment employment service provider, such as IMBD,
that enters into a contractual agreement to provide employment services to an individual for a subscription payment shall not, upon request by the subscriber, do either of the following:(1) Publish or make public the subscriber’s date of birth or age information in an online profile of the subscriber.(2) Share the subscriber’s date of birth or age information with any Internet Web sites for the purpose of publication.
To be sure, the government has identified a compelling goal – preventing age discrimination in Hollywood. But the government has not shown how AB 1687 is "necessary" to advance that goal. In fact, it's not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all. And even if restricting publication on this one website could confer some marginal antidiscrimination benefit, there are likely more direct, more effective, and less speech-restrictive ways of achieving the same end. For example, although the government asserts generically that age discrimination continues in Hollywood despite the long-time presence of antidiscrimination laws, the government fails to explain why more vigorous enforcement of those laws would not be at least as effective at combatting age discrimination as removing birthdates from a single website. Because the government has presented nothing to suggest that AB 1687 would actually combat age discrimination (much less that it's necessary to combat age discrimination), there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.
Monday, February 20, 2017
In its divided opinion in Bormuth v. County of Jackson (Michigan), a panel of the Sixth Circuit has concluded that the prayer practices of a county commission violate the First Amendment's Establishment Clause.
The constitutionality of legislative prayer has most recently been before the United States Supreme Court in the sharply divided opinion in Town of Greece v. Galloway upholding the practice of the town beginning its meetings with invited religious leaders providing prayers. The Court essentially extended Marsh v. Chambers (1983), regarding legislative prayer in the Nebraska legislature, to town meetings despite their quasi-legislative and quasi-adjudicative function.
The Sixth Circuit first held that the County of Jackson's Board of Commissioners’ practice strays from the traditional purpose and effect of legislative prayer:
A confluence of factors distinguishes the Jackson County practice from the practices upheld in Marsh and Town of Greece. These factors include the deliverance of the invocations by the Commissioners themselves in a local setting with constituent petitioners in the audience, as well as the Board’s intentional decision to exclude other prayer givers in order to control the content of the prayers.
Additionally, the Sixth Circuit in Bormuth was troubled by the issue of coercion raised by the plaintiff. The facts were not only that the Chair of the Jackson County Commission generally "directs those in attendance to “rise” and “assume a reverent position" before a County Commissioner delivers a Christian prayer, but that a Commissioner "made faces" and "turned his chair around" when Bormuth expressed concern about the prayers. One Commissioner later stated that Bormuth was attacking "my Lord and savior Jesus Christ," and another Commissioner remarked, “All this political correctness, after a while I get sick of it.” As Judge Karen Nelson Moore wrote for the panel majority:
Admittedly, the precise role of coercion in an Establishment Clause inquiry is unclear, especially within the context of legislative prayer. In that sense, both Justice Kennedy’s and Justice Thomas’s opinions involve at least some departure from the state of the law as it existed before Town of Greece. However, given that there is controlling precedent supporting Justice Kennedy’s opinion and no controlling precedent supporting Justice Thomas’s concurrence, Justice Thomas’s concurrence is neither the “the least doctrinally far-reaching-common ground among the Justices in the majority,” nor the “opinion that offers the least change to the law.” [citation omitted]. What is more, when viewed within the context of the majority’s holding, Justice Kennedy’s opinion clearly represents the narrowest grounds. The majority’s holding was that there was no coercion. According to Justice Kennedy, this was because there was no coercion in the record. According to Justice Thomas, this was because there could never be coercion absent formal legal compulsion. Within the context of a ruling against the respondents, therefore, the narrower opinion is Justice Kennedy’s, not Justice Thomas’s. Accordingly, Justice Kennedy’s conception of coercion is the holding of the Court under binding Sixth Circuit precedent.
In finding coercion in Bormuth, Judge Moore noted that Town of Greece ruled that “[t]he analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.” Judge Moore then detailed the presence of all three of these criteria in Bormuth.
Judge Moore discussed Lund v. Rowan County, North Carolina, in which a divided Fourth Circuit held that the identity of the person leading a prayer opening the county Board of Commissioners meeting was irrelevant and upheld a prayer led by a Board member. Dissenting Sixth Circuit Judge Griffin wrote at length and relied heavily on Lund. For her part, Judge Moore specifically stated that Judge Wilkinson’s panel dissent in Lund is much more convincing than the majority opinion, and noted that because Lund has been granted a rehearing en banc, this view is one that "a significant number of Fourth Circuit judges presumably share." Additionally, however, Judge Moore found that there are "significant factual differences" between the practice at issue in the Fourth Circuit and the one before the court in the Sixth Circuit.
The issue of legislative prayer in the context of local government continues to vex the courts; there is almost sure to be a petition for rehearing en banc in the Sixth Circuit mirroring the successful one in the Fourth.
image: Bernardo Strozzi, St Francis in Prayer, circa 1620, via National Gallery of Art
Friday, February 17, 2017
The Eleventh Circuit ruled yesterday that Florida's law banning doctors from asking patients about gun ownership violated the First Amendment. The en banc court struck three key provisions of Florida's law, but upheld a fourth, banning discrimination against gun owners.
Florida's Firearms Owners' Privacy Act bans doctors from asking about guns in patients' homes, from keeping records on patient gun ownership, from "unnecessarily" harassing patients about gun ownership, and from discriminating against patients based on gun ownership. The legislature enacted the provisions after hearing about six instances involving doctors asking patients about gun ownership or discriminating against patients because of gun ownership.
Doctors sued, arguing that the provisions violated free speech. The court agreed (again, except for the anti-discrimination provision).
The court held that FOPA was a content-based restriction on speech, subject to the heightened-review standard in Sorrell v. IMS, and that FOPA failed to stand up. (Because FOPA failed under heightened review, the majority said that it didn't need to consider whether strict scrutiny applied. Judges Wilson and Martin would have applied strict scrutiny, however, arguing that FOPA is both content- and viewpoint-based. Judge Tjoflat dissented, taking issue with the majority's failure "to elucidate and apply a particularized standard of review," especially in wake of the "uncertainty" created by Reed v. Town of Gilbert.) In a separate majority opinion, the court said that the anti-unnecessary harassment provision was unconstitutionally vague.
Florida proffered four interests: protecting Second Amendment rights; protecting patient privacy; ensuring equal access to health care; and regulating the medical profession to protect the public. The court said that FOPA's wasn't necessary to achieve any of these.
As to the Second Amendment, the court said that doctors can't violate it, because they're not state actors, and because the Second Amendment doesn't protect against questions on gun ownership:
The first problem is that there was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients' firearms or otherwise infringed on patients' Second Amendment rights. This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter). The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right.
As to the state's interest in protecting patient privacy, the court noted that the FOPA itself, in a provision not contested in this case, protects a patient's right not to answer questions about gun ownership. "So any patients who have privacy concerns about information concerning their firearm ownership can simply refuse to answer questions on this topic." Moreover, "Florida law already places significant limits on the disclosure of a patient's confidential medical records, and there is no evidence that doctors or medical professionals have been improperly disclosing patients' information about firearm ownership."
As to ensuring equal access to health care, the court noted that it upheld FOPA's anti-discrimination provision, and that the other challenged provisions in FOPA simply weren't narrowly tailored to promote that interest.
Finally, as to the state's interest in regulating the medical profession "in order to protect the public," the court said that this just "is not enough here." "There is no claim, much less any evidence, that routine questions to patients about the ownership of firearms are medically inappropriate, ethically problematic, or practically ineffective. Nor is there any contention (or, again, any evidence) that blanket questioning on the topic of firearm ownership is leading to bad, unsound, or dangerous medical advice."
Judge Marcus, in a separate majority opinion, added that the anti-unnecessary-harassment provision was unconstitutionally vague.
The court upheld the anti-discrimination provision, because it raised no First Amendment concerns as applied to non-expressive conduct such as "failing to return messages, charging more for the same services, declining reasonable appointment times, not providing test results on a timely basis, or delaying treatment because a patient (or a parent of a patient) owns firearms."
The court severed the record-keeping, inquiry, and anti-harassment provisions, so that other provisions of the FOPA stay on the books. These include a provision relating to firearm inquiries by emergency medical professionals, a provision allowing patients to decline to answer questions about firearm ownership, the anti-discrimination provision, a provision prohibiting insurers from discriminating against gun owners, and a provision stating that a violation of any of these constitutes grounds for disciplinary action.
Thursday, February 16, 2017
In its unanimous opinion in State v. Arlene's Flowers, the Supreme Court of Washington upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding.
The owner of Arlene's Flowers argued that the anti-discrimination statute was not applicable to her and if it did, it violated her constitutional rights of free speech, free exercise, and free association under the First Amendment as well as under the Washington state constitution.
On the First Amendment claims, the court found that Arlene's Flowers argument regarding compelled speech failed because the owner's flower arranging did not meet the threshold of expression. The court relied on Rumsfeld v. FAIR to hold that the owner's
decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As [she] acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. [She] also testified that she has previously declined wedding business on "[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need." Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock.
The court rejected the applicability of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1985), as well as a litany of other United States Supreme Court cases regarding this threshold of expression. In essence, the court emphasized that it was the sale of all flowers from her shop rather than any particular floral arrangement that was at issue in the case.
On the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
However, the analysis of free exercise under the Washington state constitution, article I §11 was not so simple because Washington has not always adopted the Smith standard when reviewing claims under its state constitution. Nevertheless, the court found that even subjecting the Washington anti-discrimination law to strict scrutiny, the statute survives. The court "emphatically" rejected the claim that there was no compelling interest of the state in flowers for weddings: the "case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."
Finally, the court rejected Arlene's Flowers' argument regarding free association, noting that all of the cases upon which she relied were not businesses. As to the business itself, the court also upheld a finding of personal liability of the owner, the person who had refused service.
The United States Supreme Court has denied petitions for writ of certiorari in similar cases, but it is highly likely that a petition for certiorari will follow, especially given the nomination of Neil Gorsuch to the Court.
February 16, 2017 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Speech, State Constitutional Law | Permalink | Comments (0)
The Sixth Circuit ruled yesterday that a lower court should go ahead and rule on a First Amendment challenge to Tennessee's Campaign Finance Disclosure Act, and not wait for the outcome of a state administrative proceeding in a different case. The court also hinted toward a likely outcome: the Act violates the First Amendment.
The decision overturns the lower court's invocation of Pullman abstention and orders the lower court to move ahead to the merits. But the Sixth Circuit still gave the lower court a chance to certify interpretation of the state law to the Tennessee Supreme Court (but suggested that this wouldn't really help).
The case arose when two parents of school-aged children formed an unincorporated group to advocate in an upcoming school board election. The group planned to spend less than $250 on independent expenditures, and not make any direct campaign contributions to candidates.
But group members learned that Tennessee law might regulate their activities. The Tennessee Campaign Financial Disclosure Act defines a "political campaign committee" as "a combination of two (2) or more individuals, including any political part governing body, whether state or local, making expenditures, to support or oppose any candidate for public office or measure." The Act goes on to require committees to pay an annual registration fee, appoint a treasurer, maintain a separate bank account, file financial disclosure statements, and keep financial records--all things that the two members weren't prepared to do.
So they sued in federal court, arguing that the Act violated the First Amendment. But the district court punted, invoking Pullman abstention, and citing a pending state administrative proceeding involving the application of the Act to a different group.
The Sixth Circuit reversed. The court said that Pullman abstention wasn't appropriate here, because the state administrative proceeding dealt with different issues (and not the ones that the plaintiffs raised here), because the Act wasn't "so ambiguous as to necessitate abstention," and because the Act wasn't really susceptible to a limiting construction that would save it from a First Amendment challenge.
The court left open an option for the district court to certify a question on the construction of the Act to the Tennessee Supreme Court. But it also suggested that certification wouldn't do any good, because the Act says what it says.
Tuesday, February 14, 2017
Eighth Circuit Says Restrictions on University Trademark for Student NORML Group Violate Free Speech
The Eighth Circuit ruled yesterday that Iowa State University's restrictions on NORML's use of the school's trademark violates the First Amendment. The court said that the restrictions amounted to viewpoint-based discrimination in a limited public forum and enjoined the school from applying its trademark-use policy in a viewpoint-discriminatory way.
The case arose when the ISU student NORML group sought university permission to use the school's trademark on NORML t-shirts. (The school's trademark-use policy allows any student group, including NORML, to use the trademark upon request and permission.) The shirt design featured the words "NORML ISU" on the front with the "O" represented by Cy the Cardinal, the school's mascot. The back read, "Freedom is NORML at ISU" with a small cannabis leaf above "NORML."
The school initially approved the group's use of the school's trademark for the t-shirt. But then the Des Moines Register ran a story on marijuana legalization, with a picture of the shirt and a quote from NORML ISU's president saying that ISU has supported the group. The school received blowback, including calls from the state legislature and governor's office asking whether the school really approved the use of its trademark, and university officials backtracked. Officials denied the use of the trademark for a second run of the shirt; they required NORML (and NORML alone) to get additional administrative approval for any future trademark requests; and they changed their trademark policy to prohibit the use of the trademark in "designs that suggest promotion of . . . dangerous, illegal or unhealthy products, actions or behaviors . . . [or] drugs and drug paraphernalia that are illegal or unhealthful." Under the new policy, the school denied NORML's request to use the trademark for any design that included a cannabis leaf, but it approved use of the trademark for a design that simply stated the group's name (with no leaf).
Group members sued and won a permanent injunction in the district court, prohibiting the school from enforcing is trademark-use policy in a viewpoint-discriminatory way. The Eighth Circuit affirmed.
The court held that the university created a limited public forum in its trademark-use policy, and that the additional barriers to that policy that it erected for NORML constituted viewpoint-based discrimination of speech. The court also rejected the school's argument that NORML's use of the trademark constituted government speech under the three-part test for government speech in Walker v. Texas Sons of Confederate Veterans.
Monday, February 13, 2017
The federal district judge in Aziz v. Trump, having previously granted the Motion of the State of Virginia to intervene, has granted a Preliminary Injunction against section 3(c) of the President's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." The judge's order is supported by a 22 page Memorandum Opinion. Recall that the Ninth Circuit has also recently ruled on the matter (refusing to stay a district judge's injunction); our general explainer of the issues is here.
Judge Leonie Brinkema rested her opinion on the Establishment Clause, finding a likelihood of success on the merits on that claim, and thus not reaching the Equal Protection Clause and Due Process Clause or statutory claims.
Judge Brinkema found that the case was justiciable and that Virginia as a state has standing to raise claims based on the injuries to its universities. The judge rejected the contention that the President has unbridled power to issue the EO, stating that
Maximum power does not mean absolute power. Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights. It is a bedrock principle of this nation’s legal system that “the Constitution ought to be the standard of construction for the laws, and that wherever there is evident opposition, the laws ought to give place to the Constitution.” The Federalist No. 81, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power “is subject to important constitutional limitations.” Zadﬂdas v. Davis, 533 U.S. 678, 695 (2001).
As to whether or not the EO is a "Muslim ban," the judge relied on public statements by the President and his senior advisors, noting that although the Government disputes the relevancy of the statements, the government does not contest their accuracy. Among the statements the Judge found relevant are candidate Trump's campaign statements and Rudolph Guiliani's January 29, 2017 interview on Fox News.
Judge Brinkema's analysis of the Establishment Clause issue relies heavily on McCreary County v. ACLU of Kentucky in which the Court found unconstitutional the display of the Ten Commandments in a courthouse based in large part of the motive of the state actors. The judge also rejected the argument that the EO could not be a "Muslim ban" because it did not ban all Muslims:
The argument has also been made that the Court cannot infer an anti-Muslim animus because the E0 does not affect all, or even most, Muslims. The major premise of that argument—that one can only demonstrate animus toward a group of people by targeting all of them at once—is ﬂawed. For example, it is highly unlikely that the Supreme Court considered the displays of the Ten Commandments erected by the Kentucky counties in McCreary, which had a localized impact, to be targeted at all persons outside the Judeo-Christian traditions. Moreover, the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefﬁcient the execution. [citations omitted]
Thus, the judge entered a preliminary injunction of 3(c) of the EO against Virginia residents or those affiliated with Virginia's education institutions.
Tuesday, February 7, 2017
The wife of the President has two pending defamation claims that not only involve interesting First Amendment issues, but may also be relevant to the pending Emoluments Clause challenge.
First there is the complaint in Melania Trump v. Tarpley (and Mail Media), filed in Maryland state court. This suit alleges that statements by blogger Webster Griffin Tarpley in a blog post, including “Ms. Trump Reportedly Obsessed by Fear of Salacious Revelations by Wealthy Clients from Her Time as a High-End Escort” and “It is widely known that Melania was not a working model but rather a high end escort.” The complaint survived the motion to dismiss by Tarpley, with the Judge ruling from the bench reportedly rejecting the blogger defendant’s argument that he was not making the statement as a fact but merely reporting rumors. The judge further reportedly stated that the alleged statements were defamatory: “The court believes most people, when they hear the words 'high-end escort' that describes a prostitute. There could be no more defamatory statement than to call a woman a prostitute."
Additionally, as the news report stated:
The judge also seemed skeptical that such salacious claims were deserving of the highest level of legal protection given that Melania Trump was the wife of a candidate and not a candidate herself.
"The interests affected are arguably not that important because the plaintiff wasn't the one running for office," [Judge] Burrell said.
This would seem to imply that Melania Trump was not a public figure, a conclusion that does not seem sustainable. The judge did, however, seem to dismiss the plaintiff’s claim that the false statements included injuries to her husband’s business.
Maryland Judge Burrell did , however, dismiss the complaint as against Mail Media for lack of jurisdiction against the company.
Ms. Trump has now filed a complaint in New York against Mail Media (Mail Online), alleging defamation and intentional infliction of emotional distress based on the same facts. Interestingly, Ms. Trump has dropped the allegations of injuries to her husband's business and included more specific injuries to her own business and lost opportunities. Paragraph 3 of the Complaint reads:
As a result of Defendant’s publication of defamatory statements about Plaintiff, Plaintiffs brand has lost significant value, and major business opportunities that were otherwise available to her have been lost and/or substantially impacted. The economic damage to Plaintiffs brand, and licensing, marketing and endorsement opportunities caused by the publication of Mail Online’s defamatory article, is multiple millions of dollars. Plaintiff had the unique, once-in-a-lifetime opportunity, as an extremely famous and well-known person, as well as a former professional model and brand spokesperson, and successful businesswoman, to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multi-million dollar business relationships for a multi-year term during which Plaintiff is one of the most photographed women in the world. These product categories would have included, among other things, apparel, accessories, shoes, jewelry, cosmetics, hair care, skin care and fragrance.
This allegation has raised some eyebrows as it seems to allege that Melania Trump intended to monetize her "once-in-a-lifetime opportunity" for a "multi-year term" as First Lady by promoting her personal products. Indeed, Melania Trump's initial biography on the White House website lends credence to this view:
This entry has since been removed, although it does not seem the removal is connected to the August 2016 publications about Melania Trump.
Should discovery on damages ensue, it could be a trove of material for those claiming that conflicts of interests exist in Donald Trump's official position and his businesses, including his family businesses. However, note that under Seattle Times v. Rhinehart (1984), a judge could certainly order nondisclosure of the material gained by Mail Media despite the defendant's press status.
Meanwhile, also in New York state court, Donald Trump is defending a defamation suit filed by Zervos Summer based on allegations that he called her charges of sexual harassment by him false.
Saturday, February 4, 2017
In a Temporary Restraining Order, United States District Judge James Robart enjoined the federal government from enforcing sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban."
Judge Hobart's Order is brief and concludes that there is a likelihood of success on the merits, although it does not specify which of the claims is likely to succeed. Washington State's complaint contains 7 counts claiming violations of constitutional guarantees of Equal Protection, Establishment Clause, and Procedural Due Process, as well as statutory violations of the Immigration and Nationality Act (2 counts), Foreign Affairs and Restructuring Act, the Administrative Procedure Act (2 counts), and the Religious Freedom and Restoration Act (RFRA).
The Judge's finding that Washington faces the "immediate and irreparable injury" requirement for preliminary relief might also be a comment on the merits of Washington's standing (which we first discussed here) to bring the suit, and would be pertinent to the standing of the state of Hawai'i, which has also sued. Judge Robart found:
The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inﬂicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States" operations, tax bases, and public funds.
Additionally, in the Order's one paragraph Conclusion, Judge Robart implicitly invokes the Marbury v. Madison aspects of the controversy. Here is the entire last paragraph:
Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a TRO against certain actions taken by the Executive in the context of this speciﬁc lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulﬁll its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described TRO is necessary, and the States’ motion (Dkt. ## 2, 19) is therefore GRANTED.
The morning after the Judge's Order, the President from his vacation home "tweeted" his disapproval, maligning the judge but seemingly committed to pursue further judicial process.
February 4, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Procedural Due Process, Race, Separation of Powers, Standing | Permalink | Comments (2)
Friday, February 3, 2017
Joining the more than 15 other cases filed across the nation challenging Trump's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here, today Hawai'i filed a Complaint in Hawai'i v. Trump, accompanied by a lengthy motion for Temporary Restraining Order and supporting Memorandum of Law.
Hawai'i asserts standing as a state based on its diversity in ethnic population, its high number of noncitizen residents including business owners and students, and its tourism-based economy. Washington state previously brought suit (with an oral ruling granting a TRO); Virginia is seeking to intervene in a lawsuit there.
The constitutional claims are by now familiar from suits such as the first one in Darweesh v. Trump and the one filed by CAIR, Sarsour v. Trump, including Equal Protection claims as we analyzed here. Other constitutional claims generally include First Amendment Establishment Clause and Free Exercise Clause and Procedural Due Process. There have also been constitutional claims based on the Emoluments Clause (Mohammed v. United States, filed in U.S. District Court for the Central District of California, with Temporary Restraining Order entered) and a substantive due process right to familial association (Arab American Civil Rights League v. Trump , filed in U.S. District Court for the Eastern District of Michigan, with an injunction entered. Again, Lawfare is maintaining a collection of all the primary source documents.
The Hawai'i complaint includes an innovative count alleging a violation of the substantive due process right to international travel. According to the supporting memo, the right to travel abroad is “part of the ‘liberty’” protected by the Due Process Clause; as the Court stated in Kent v. Dulles (1958), “Freedom of movement is basic in our scheme of values.” The EO fails to satisfy the applicable due process standard for the same reasons it fails the equal protection analysis.
The Attorney General has not been confirmed and the Acting AG was terminated by the President when she stated the Muslim Ban was indefensible, but the DOJ attorneys seem to be vigorously defending these suits.
Monday, January 30, 2017
In a complaint filed today in Sarsour v. Trump, attorneys with CAIR, the Council on American-Islamic Relations, have challenged the constitutionality of President Trump's late Friday EO, Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here. Recall that the EO was fairly quickly subject to a partial stay by a federal judge and encountered "judicial resistance" as Jonathan Hafetz over at Balkinization observes. There are now several cases pending; a very helpful updated post with litigation documents from Qunita Juresic is over at Lawfare here. In addition to litigation, the EO has sparked nationwide protests, as well as criticism from other Republicans and 16 State Attorney Generals.
In Sarsour, the complaint acknowledges that the text of the EO does not contain the words "Islam" or "Muslim," but argues in its Introduction that:
the Executive Order has already gained national and international media attention and nationwide protests, and has been dubbed uniformly as the “Muslim Ban” because its apparent and true purpose and underlying motive—which is to ban Muslims from certain Muslim‐majority countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) (hereinafter the “Muslim majority countries”)—has been broadcast to the general public by the Trump Administration
and that the EO is a
fulfillment of President Trump’s longstanding promise and boasted intent to enact a federal policy that overtly discriminates against Muslims and officially broadcasts a message that the federal government disfavors the religion of Islam, preferring all other religions instead.
The complaint has three constitutional claims, as well as a a fourth count alleging violations of the Administrative Procedure Act.
Front and center are the First Amendment Religion Clauses claims. The first count is labeled an Establishment Clause violation, but also argues that Islam is being singled out for disfavored treatment as "uniquely threatening and dangerous." A discussion of the Establishment Clause arguments from David Cole, Legal Director of the ACLU, is over at Just Security here. In the second count, the claim is a violation of the Free Exercise Clause as it relates to the John and Jane Doe plaintiffs who are residents but non-citizens originating from the Muslim-majority countries at issue in the EO. Interestingly, there is not a statutory Religious Freedom Restoration Act (RFRA) claim; there would seem to a good argument that RFRA's "persons" includes noncitizens as well as corporations as the Court held in Hobby Lobby.[Update: In Ruiz-Diaz v. United States, the Ninth Circuit applied RFRA to non-citizen in the United States on five-year religious worker visas, ultimately concluding RFRA was not violated].
In addition to the First Amendment counts, the complaint includes a Fifth Amendment Equal Protection claim on behalf of the John and Jane Doe plaintiffs, contending that by preventing the non-citizen lawful resident Muslims originating from these specific Muslim-majority nations "from engaging in international travel and returning home in the United States" and from "applying for immigration benefits" under the federal statute and international human rights law including political asylum, the EO is unconstitutional. We've previously discussed the Equal Protection issues involved in the EO here.
The EO is certainly going to attract additional judicial challenges, as well as legislative ones.
Wednesday, January 25, 2017
In their op-ed in The New York Times, "Don’t Expect the First Amendment to Protect the Media," ConLawProfs Ronnell Anderson Jones and Sonja West argue that while it may be "comforting" to think that the "Constitution serves as a reliable stronghold against Mr. Trump’s assault on the press," the that is not true. Instead, "legal protections for press freedom are far feebler" than assumed and have been "weakening in recent years."
They contend there is little recourse in the courts. As they state:
The Supreme Court has not decided a major press case in more than a decade, in part because it has declined to do so, and in part because media companies, inferring the court’s relative lack of interest, have decided not to waste their resources pressing cases. Several justices have spoken negatively of the press in opinions or speeches. Lower courts have likewise become less favorable to the press, showing more willingness than in the past to second-guess the editorial judgment of journalists.
Much of the ""freedom" of "the press" in the First Amendment is supported by "customs and traditions," which the new President seems "keen to destroy."
We cannot simply sit back and expect that the First Amendment will rush in to preserve the press, and with it our right to know. Like so much of our democracy, the freedom of the press is only as strong as we, the public, demand it to be.
How "the public" should make such demands is seemingly the question of the moment.
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.