Saturday, December 9, 2017

Ninth Circuit Says Permit Requirement for Outdoor Weddings Violates First Amendment

The Ninth Circuit ruled this week that the standards for a conditional use permit in Ventura County left too much discretion to the decisionmakers and therefore violated the First Amendment. The ruling reverses a district court's dismissal of the plaintiff's First Amendment claim and sends the case back for a decision on the plaintiff's motion for a preliminary injunction.

The case, Epona, LLC v. County of Ventura, arose when the corporation sought a conditional use permit to use the outdoor area on his rural property for outdoor weddings. County officials denied the permit, concluding that the use was "not compatible with the rural community," that it had "the potential to impair the utility of neighboring property or uses," and that it had "the potential to be detrimental to the public interest, health, safety, convenience, or welfare . . . and the findings [in the local zoning law]." The corporation's owner sued, arguing that the standards and denial violated the First Amendment, and that the denial violated RLUIPA. The district court dismissed the claims.

The Ninth Circuit reversed on the First Amendment claim. The court ruled that Ventura County's standards left too much discretion to the decisionmakers, and therefore raised the possibility of content-based discrimination.

The standards say that a person seeking a conditional use permit for an event, including a wedding, show that the event is (among other things):

(b) compatible with the character of surrounding, legally established development;

(c) not . . . obnoxious or harmful, [and must not] impair the utility of neighboring property or uses;

(d) not . . . detrimental to the public interest, safety, convenience, or welfare;

(e) compatible with existing and potential land uses in the general area where the development is to be located . . . .

The scheme requires permitting officials to make "specific factual findings," which arguably made the standards more determinate.

Nevertheless, the court looked to "the totality of the factors" regarding the scheme and concluded that "the [conditional use permit] scheme fails to provide definite and specific guidelines for permitting officials." Moreover, the court said that the scheme failed to provide a time limit (as required by Freedman v. Maryland), so "compounds the problem created by the lack of definite standards for permitting officials." "Together, these defects confer unbridled discretion on permitting officials in violation of the First Amendment."

At the same time, the court rejected the plaintiff's RLUIPA claim, because the corporation isn't "a religious assembly or institution."

The court sent the case back for a ruling on the plaintiff's motion for a preliminary injunction on the First Amendment claim.

December 9, 2017 in First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, December 8, 2017

SCOTUS Takes on (Another) Partisan Gerrymandering Case

 Adding to its docket on the issue of partisan gerrymandering, the Court agreed to hear the merits of Benisek v. Lamone, regarding Maryland's redistricting law, decided by a three judge court in August 2017.

Recall that the Court heard oral arguments in Gill v. Whitford on October 3, 2017.  In Gill, arising in Wisconsin, the question of whether partisan gerrymandering is best analyzed under the Equal Protection Clause or under the First Amendment inflected the oral arguments. 

The three judge court opinion in Benisek deciding on the application of a preliminary injunction was divided. A majority of the  found that the case essentially rejected the challengers' arguments, seemingly finding that the claims were not justiable and that they did not have merit, but ultimately resting on a decision that the matter should be not be decided pending the outcome in Gill v. Whitford and thus denying the motion for preliminary injunction.  In an extensive dissenting opinion, Fourth Circuit Judge Paul Niemeyer makes a compelling argument that the redistricting of Maryland's Sixth District by the Democratic leadership diluted the votes of Republicans. Judge Niemeyer advanced a First Amendment standard to redressing unconstitutional partisan gerrymandering as:

 (1) “those responsible for the map redrew the lines of his district with the specific intent to impose a burden on him and similarly situated citizens because of how they voted or the political party with which they were affiliated,”
(2) “the challenged map diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and concrete adverse effect,” and
(3) “the mapmakers’ intent to burden a particular group of voters by reason of their views” was a but-for cause of the “adverse impact.”

Applying that standard, Judge Niemeyer would have found it clearly violated by the Sixth District.

United_States_House_of_Representatives _Maryland_District_6_map

[image via]

While both the majority and Judge Niemeyer's dissent agree that partisan gerrymandering is "noxious" and destructive, the panel clearly divides on what the judiciary can or should do.  For Niemeyer, judicial abdication "would have the most troubling consequences":

If there were no limits on the government’s ability to draw district lines for political purposes, a state might well abandon geographical districts altogether so as to minimize the disfavored party’s effectiveness. In Maryland, where roughly 60% of the voters are Democrats and 40% Republicans, the Democrats could create eight safe congressional districts by assigning to each district six Democrats for every four Republicans, regardless of the voters’ geographical location. In a similar vein, a Republican government faced with these same voters could create a map in which two districts consisted entirely of Democrats, leaving six that would be 53% Republican. Such a paradigm would be strange by any standard. A congressman elected in such a system could have constituents in Baltimore City, others in Garrett County, and yet others in the suburbs of Washington, D.C., preventing him from representing any of his constituents effectively. Similarly, members of a single household could be assigned to different congressional districts, and neighbors would be denied the ability to mobilize politically. Such partisan gerrymandering, at its extreme, would disrupt the “very essence of districting,” which “is to produce a different ... result than would be reached with elections at large, in which the winning party would take 100% of the legislative seats.” [citing Gaffney v. Cummings (1973)].

The role that Benisek will play as an addition to Gill v. Whitford in the Court's consideration of partisan gerrymandering is unclear, but several differences between the cases might be worth noting.  First, Benisek centers the First Amendment analysis rather than the Equal Protection Clause or a combination.  Second, Benisek involves one district within the state rather than the state as a whole.  And third, the redistricting in Maryland involved in Benisek is the Democratic party in power, while the redistricting in Wisconsin in Gill v. Whitford is the Republican party in power.  What, if any, difference these differences may ultimately make - - - and whether the Court will render the decisions of these cases close together - - - remains to be determined.

 

 

December 8, 2017 in Elections and Voting, First Amendment, Opinion Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Tuesday, December 5, 2017

Masterpiece Cake Oral Argument

 The Court heard oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission with extensive arguments from the attorney for the cakeshop (Kristen Waggoner),  the Solicitor General, the Colorado Solicitor General, and the attorney for the would-be customers (David Cole).

As predictable, the oral argument was filled with the expansiveness or limits of any doctrine that would permit the cakemaker to refuse to bake a cake for the same-sex wedding reception. Early on, Justices Ginsburg and Kagan asked Waggoner about florists and invitation designers, who Waggoner stated would be engaging in speech, but said "absolutely not" for the hair stylist. Drawing the line - - - what about the chef? the sandwich artist? - - - preoccupied this initial portion of the argument.  However, another limitation that permeated the case was whether the cakemaker's refusal could apply to racial or other identities as well as sexual orientation, or perhaps, whether it was based on identity at all.  For Kennedy, the issue could be that "there's basically an ability to boycott gay marriage." 

Also for Kennedy, however, the question is whether Colorado had been "tolerant" or "respectful" of the cakemaker's religious beliefs.  This invocation of the Free Exercise Clause was given heft by a statement by one of the Commissioners of the Colorado Civil Rights Commission as quoted by Kennedy that "freedom of religion used to justify discrimination is a despicable piece of rhetoric."  Kennedy asks the Colorado Solicitor General to "disavow or disapprove" of that statement.  Kennedy characterizes the statement as expressing a hostility to religion and later lectures the Colorado attorney:

Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it's mutual.
It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs.

In Waggoner's rebuttal, Justice Sotomayor proffered a different view:

Counsel, the problem is that America's reaction to mixed marriages and to race didn't change on its own. It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights.
It's not denigrating someone by saying, as I mentioned earlier, to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.

While it's always perilous to predict the outcome of a decision based n oral argument, if Justice Kennedy is the deciding vote, his attention to the religious aspects of the challenge could make the free speech argument less consequential.

 

December 5, 2017 in Family, First Amendment, Oral Argument Analysis, Religion, Sexual Orientation, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, December 4, 2017

Preview of Masterpiece Cakeshop Argument on First Amendment Challenge to Anti-Discrimination Statute

Set for oral argument Tuesday, December 5, 2017, the high visibility case of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission can be seen as a clash of constitutional principles of individual conscience vs. equality, or as a federalism case, or as part of the backlash to LGBTQ rights, or as part of the rise of religiously-motivated challenges to secular laws.

Recall that a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Speech and Free Exercise Clauses. In the state proceedings, the Colorado Administrative Law Judge (ALJ) rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'" On the Free Exercise claim, the ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.   A Colorado appellate court affirmed in a lengthy opinion, rejecting the First Amendment claims.

Chocolate_Cake_Flourless_(1)On the First Amendment speech claim, the initial hurdle for the cakemaker is establishing that the cake constitutes speech.  The cakemaker argues that he is a "cake artist." The Court has held that symbolic speech needs to convey a particularized and understood message, Spence v. Washington (1974), but that includes the "unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll," Hurley v. Irish American Gay Group of Boston (1995).  The cakemaker has also argued that the cake itself is so central to the wedding as to be a participant. Thus, the cakemaker as business owner should be able to refuse to make cakes for events with which he disagrees otherwise his speech is being compelled, akin to the landmark flag salute case of West Virginia Bd. of Ed. v. Barnette (1943). 

On the religious claim, the cakemaker essentially argues that the Colorado anti-discrimination law is not a law of neutral and general applicability because it includes sexual orientation as a protected ground and therefore targets (certain) religions, and thus strict scrutiny applies.

On both claims, the oral arguments will most likely include explorations of the slippery slopes.  If the cake is art, then what about restaurant dinners? Photography? Bed and breakfasts?  If the cake is akin to a participant in the wedding celebration, then would the rule extend to birthdays? And can the exemption for individual conscience be limited to sexual orientation?  What about race? Ethnicity or national origin? Gender?

There are a little less than 50 amicus briefs on each side.  The Court has allowed the Solicitor General of the United States to participate in oral argument on the side of the cakemaker, and for the respondents (the Colorado Civil Rights Commission and the original would-be customers) to both participate.

The case has attracted extensive commentary (here's a good round-up by Edith Roberts on SCOTUSBlog) and there is certainly much more to come.

December 4, 2017 in Courts and Judging, Family, Federalism, First Amendment, Food and Drink, Recent Cases, Religion, Speech, Supreme Court (US) | Permalink | Comments (0)

Thursday, November 30, 2017

D.C. Circuit Rebuffs Challenge to Per-Election Base Campaign Contribution Limits

The en banc D.C. Circuit unanimously ruled this week that FECA's per-election base limits on campaign contributions don't violate free speech.

The ruling could give the Supreme Court a chance to reevaluate its stance on the constitutionality of base contributions, or at least per-election base contributions, in light of its most recent ruling on contributions, McCutcheon v. FEC. The Court in that case held that aggregate limits on base contributions violate free speech, even if base contributions themselves don't.

The plaintiffs in Holmes v. FEC challenged FECA's $2,600 base limit per candidate per election. The law means that a person can contribute up to $2,600 to a candidate in a primary, another $2,600 to that candidate in the general, and yet another $2,600 to that candidate in any runoff. In the usual course of things (without a runoff) this allows a person to contribute up to $5,200 to a candidate for the whole cycle.

The plaintiffs claimed that per-election restriction violated free speech, although they didn't take on all base limits. In other words, they wanted to contribute $0 to their favored candidates in the primaries, but $5,200 in the generals. The per-election restriction prevented them from doing that, and they claimed that this violated the First Amendment.

The D.C. Circuit disagreed. Citing Buckley v. Valeo (upholding per-election base limits against a free speech challenge, but not ruling specifically on the per-election nature of them) the court said that Congress's decision in FECA to create per-election restrictions (and not entire cycle restrictions) was a permissible way to implement base limits. In short, the court said that Congress had to create some timeframe for base contribution restrictions--because that's how base contributions work--and a per-election timeframe doesn't seem unreasonable. Said the court:

Contrary to plaintiffs' account of FECA, there is no $5,200 base contribution ceiling split between the primary and general elections. Instead, the Act by its terms established a $2,000 contribution limit, adjusted for inflation, which 'shall apply separately with respect to each [primary, general, and runoff] election.'

. . .

To impose a meaningful contribution ceiling, then, Congress has no choice but to specify some time period in which donors can contribute the maximum amount. There are a host of alternatives in that regard.

. . .

Just as Buckley did not require Congress to explain its choice of $1,000 rather than $2,000 as itself closely drawn to preventing corruption, we see no basis for requiring Congress to justify its choice concerning the other essential element of a contribution limit--its timeframe--as itself serving that interest.

November 30, 2017 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, November 13, 2017

SCOTUS Grants Certiorari on First Amendment Challenge to California's Regulation of "Crisis Pregnancy Centers"

The United States Supreme Court has granted certiorari in National Institute of Family and Life Advocates (NIFLA) v. Becerra to the Ninth Circuit's opinion  upholding the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act).  The California law requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California.  The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

Ann_Agnes_Bernatitus
Recall
that affirming the district judge, the unanimous Ninth Circuit panel rejected both the free speech and free exercise of religion claims advanced by NIFLA in seeking a preliminary injunction.  After finding that the challenge was justiciable as ripe, the panel opinion, authored by Judge Dorothy W. Nelson, first considered the free speech challenge which is at the center of the case.  The panel concluded that the California statute's requirement of disclosure of state-funded services merited intermediate scrutiny under the First Amendment, which it survived, and that the unlicensed disclosure requirement survived any level of scrutiny.  The Ninth Circuit rejected the argument that the FACT Act was viewpoint-discrimination subject to strict scrutiny. The Ninth Circuit did agree with the challengers that the disclosure requirement was content-based, but held that not all content-based regulations merit strict scrutiny under Reed v. Town of Gilbert (2015). The court looked back to Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), noting that it did not announce a standard for abortion-related disclosure and applied Ninth Circuit precedent of Pickup v. Brown (2013) in which the court upheld a California statute banning conversion therapy under a "professional speech" intermediate standard of scrutiny. The panel upheld the statute applying intermediate scrutiny.

The Ninth Circuit ruling is at odds with other opinions, including, as the opinion noted, the Second Circuit in Evergreen Ass’n, Inc. v. City of N.Y.(2014) and the Fourth Circuit en banc in Centro Tepeyac v. Montgomery Cty. (2013) applied strict scrutiny and held similar provisions unconstitutional because there were other means available to inform pregnant women, including advertising campaigns.  Thus, it is this circuit split that will inform the United States Supreme Court arguments.

The Supreme Court's decision should resolve the debate concerning state regulation of crisis pregnancy centers but could also be much broader concerning so-called professional speech.

 

 

November 13, 2017 in Abortion, Courts and Judging, First Amendment, Recent Cases, Speech, Supreme Court (US) | Permalink | Comments (0)

Wednesday, November 8, 2017

Ninth Circuit Requires Disclosure of Identifying Information on Website Rejecting First Amendment Claim

In its opinion in In Re Grand Jury Subpoena, No. 16-03-217, a panel of the Ninth Circuit rejected an attempt to quash a grand jury subpoena seeking identifying information of users who posted anonymous reviews of a company on the website, Glassdoor.com.  Glassdoor is a website where "employers promote their companies to potential employees, and employees post reviews of what it's like to work at their companies."  The subpoena relates to a company involved in the grand jury's investigation of a government contractor administering Department of Veterans Affairs healthcare programs, seemingly prompted by comments that the company was acting unethically.

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Glassdoor raised two First Amendment claims supporting the appeal of the denial of its motion to quash.  First, Glassdoor argued that its users' right to associational privacy was infringed.  The unanimous panel opinion, authored by Judge Richard Tallman, quickly dispatched this "tenuous" claim.  There is no actual association among the users who "do not so much 'discuss' employment conditions as independently post their individual views."  Thus, the users do not constitute "an expressive association like the Jaycees, the Boy Scouts, or the NAACP."  Indeed, the court implied that this associational argument was inconsistent with Glassdoor's other claim: anonymity.  

The court considered this second claim, the right to anonymous speech, more extensively.  The court decided that the applicable precedent was Branzburg v. Hayes (1972), in which the United States Supreme Court famously held that a reporter did not have a First Amendment right to protect sources, known as the "reporters' privilege."   As the Ninth Circuit expressed it, Branzburg held that "a reporter - - - even one who has promised his sources anonymity - - - must cooperate with a grand jury investigation unless there is evidence that the investigation is being conducted in bad faith."  Judge Tallman's opinion rejected the argument that Branzburg is limited to newsgathering and that a Ninth Circuit case, rendered one day after Branzburg and proposing a compelling interest test, should control. Thus, for the Ninth Circuit, the only issue was whether the grand jury proceeding was in bad faith; an assertion that Glassdoor did not make.

In short, the court found no reason to "carve out an exception" to the Branzburg principle and no reason to remand. Glassdoor has few legally viable options other than to disclose the identifying information on the website.

 

 

November 8, 2017 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, October 24, 2017

No Surprise: SCOTUS Vacates Trump v. Hawai'i Travel Ban Certiorari

In an Order today the Court brought the litigation in Hawai'i v. Trump on Muslim Ban/Travel ban 2.0 to a close. The Order provides:

We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens and refugees under Section 2(c) and Section 6 of Executive Order No. 13,780. Because those provisions of the Order have “expired by [their] own terms,” the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

This Order replicates the Court's previous dismissal in IRAP v. Trump on October 10.

This does not end litigation on the issues.

Recall that so-called Muslim Ban/Travel Ban 2.0 has been replaced by so-called Muslim Ban/Travel Ban 3.0, Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017.  Like the previous iterations, this has been enjoined by federal judges in Hawai'i (Hawai'i v. Trump) and in Maryland (IRAP v. Trump).

 

October 24, 2017 in Courts and Judging, Current Affairs, Establishment Clause, Executive Authority, First Amendment, Fundamental Rights, Race, Recent Cases, Religion | Permalink | Comments (0)

Thursday, October 19, 2017

Fourth Circuit Finds 40 Foot Highway Cross Violates Establishment Clause

 The state of Maryland owns and maintains a 40 foot "Latin Cross" situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md.  Reversing the district judge, the Fourth Circuit concluded that the government cross violated the First Amendment's Establishment Clause in a divided opinion  in American Humanist Association v. Maryland-Capital Park and Planning Commission. 

The panel was unanimous in its conclusion that the challengers, both the association and individuals, had standing: The individuals, for example, alleged "specific unwelcome direct contact with the Cross; that is, they have each regularly encountered the Cross as residents while driving in the area, the Commission caused such injury by displaying the Cross, and the relief sought -- enjoining the display of the Cross -- would redress their injury."

CrossThe judges disagreed, however, regarding the application of the Establishment Clause.  In the well-reasoned majority opinion by Judge Thacker, the passive monument rule of the plurality in Van Orden v. Perry (2005) is not conclusive, especially given Justice Breyer's concurrence which stressed factors for determining whether or not the monument should be deemed passive and further stressed that the well-established Lemon test from Lemon v. Kurtzman (1971) remained a "useful guidepost."  The majority thus analyzed the case "pursuant to the three-prong test in Lemon with due consideration given to the factors outlined in Van Orden."

The court first found that there was a legitimate secular purpose to the cross, considering that it was erected to local soldiers who died in World War I. As to the effect of advancing or inhibiting religion prong, the court engaged in a detailed analysis of the symbol of the cross, and found it specifically Christian.  It rejected the argument that in Europe, the Latin Cross might be a neutral symbol for the war dead of World War I.  Further, the fact that this cross had been in place for 90 years was not determinative and the secular symbols accompanying the cross were also not sufficient:

the sectarian elements easily overwhelm the secular ones. The Cross is by far the most prominent monument in the area, conspicuously displayed at a busy intersection, standing four stories tall, and overshadowing the other monuments, the tallest of which is only ten feet tall and located approximately 200 feet from the Cross. The other monuments composing the Veterans Memorial Park are anywhere from 200 feet away to a half-mile away. The immense size and prominence of the Cross necessarily “evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones.”

 Thus, a "reasonable observer" - - - most likely viewing the 40 foot cross from the highway - - - would fairly understand the Cross to have the primary effect of endorsing religion. This is even true, the court reasoned, if the reasonable observer knew the history of the cross as memoralizing the war dead, because then this reasonable observer would also know that the original private organizers of the cross monument pledged "devotion to faith in God, and that same observer knows that Christian-only religious activities have taken place at the Cross.

On the third "excessive entanglement" prong of Lemon, the court found that additionally

displaying the Cross, particularly given its size, history, and context, amounts to excessive entanglement because the Commission is displaying the hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets. The display aggrandizes the Latin cross in a manner that says to any reasonable observer that the Commission either places Christianity above other faiths, views being American and Christian as one in the same, or both.

Dissenting, Chief Judge Gregory argued that

the majority misapplies Lemon and Van Orden to the extent that it subordinates the Memorial’s secular history and elements while focusing on the obvious religious nature of Latin crosses themselves; constructs a reasonable observer who ignores certain elements of the Memorial and reaches unreasonable conclusions; and confuses maintenance of a highway median and monument in a state park with excessive religious entanglement.

For the dissenting judge, the large size of the cross is only one factor that a reasonable observer would notice and the majority's opinion would lead to a rule that all "large crosses are unconstitutional despite any amount of secular history and context" if the the crosses were on government land.

Given the continuing and renewed debates about the entwinement of Christianity and government, this may be a plausible candidate for certiorari to the United States Supreme Court.  

[image from the opinion's appendix].

October 19, 2017 in Establishment Clause, First Amendment, Opinion Analysis, Religion | Permalink | Comments (0)

Wednesday, October 18, 2017

Second Federal District Judge Issues Preliminary Injunction on Muslim Ban 3.0

 A few hours after Hawai'i District Judge Derrick Watson granted a nationwide preliminary injunction in Hawai'i v. Trump in an extensive order based largely on statutory grounds, Maryland District Judge Theodore Chuang has also issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion  in International Refugee Assistance Project (IRAP) v. Trump

Recall that Judge Chuang had issued an injunction against the enforcement of Muslim Ban 2.0, which the en banc Fourth Circuit had affirmed finding that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order. The United States Supreme Court, having granted certiorari to the case (as well as Hawai'i v. Trump), had recently vacated the Fourth Circuit opinion given the Government's suspension of version 2.0 of the "Muslim Ban" (President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), with Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017, known colloquially as "Muslim Ban" or "Travel Ban" or EO "3.0."

In short, although there are some differences in this third iteration, including the addition of nationals from the countries of Chad, North Korea, and Venezuela, as well as Iran, Libya, Somalia, Syria, Yemen, Judge Chuang concluded that "Muslim Ban 3.0" suffered from the same constitutional infirmities as the previous bans.

Judge Chuang found that the Plaintiffs had standing and that parts on the Proclamation conflicted with the Immigration and Nationality Act, similar to the conclusions of Judge Watson in Hawai'i v. Trump. However, because the statutory claims were not sufficient to enjoin the challenge to nonimmigrantion visas, Judge Chuang proceeded to the constitutional claims.

On the Establishment Clause challenge, Judge Chuang ultimately concluded that the Plaintiffs had a likelihood of prevailing on the merits.  The central question, as it had been previously, is the extent to which the President's motivation is a "Muslim Ban" and thus comes within the First Amendment's prohibition as most exemplified by McCreary County. v. ACLU of Kentucky (2005) and the first prong of the well-established test from Lemon v. Kurtzman (1971), essentially requiring a government act to have a secular purpose.  Given that courts had previously held that the two previous iterations of the travel ban were motivated by anti-Muslim sentiment, Judge Chuang considered whether this new Proclamation was still tainted by that motivation or if it had been replaced by nuetral considerations such as national security.  The "taint" does not persist forever, but neither should courts be "absentminded" as to the context.

Judge Chuang wrote:

Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” — announced his intention to go back to and get even tougher than in EO-1 and EO-2. Notably, the June 5 tweet calling for a “much tougher version” reveals that even before President Trump had received any reports on the DHS Review that ostensibly identified the need for a travel ban, the first of which he received over a month later on July 9, 2017, the President had already decided that the travel ban would continue. His September 15, 2017 tweet calling for a “far larger, tougher” travel ban, issued the same day that that the final report was received, reinforced this position. . . . [The President's] statements

Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated.”  Rather, they cast the Proclamation as the inextricable re-animation of the twice-enjoined Muslim ban, and, in echoes of McCreary, convey the message that the third iteration of the ban—no longer temporary—will be the “enhanced expression” of the earlier ones.

[citations omitted].  Thus, Judge Chuang concluded that

where the Proclamation itself is not sufficiently independent of EO-2 to signal a purposeful, persuasive change in the primary purpose of the travel ban, and there were no other public signs that “as persuasively” as the original violation established a different primary purpose for the travel ban, it cannot find that a “reasonable observer” would understand that the primary purpose of the Proclamation’s travel ban is no longer the desire to impose a Muslim ban.

Having concluded that the Plaintiffs would likely prevail on the merits of the First Amendment claim, Judge Chuang did not discuss the Equal Protection challenge.

Judge Chuang issued an Order enjoining enforcement of section 2 of the Proclamation.

Like the injunction issued in Hawai'i v. Trump, this is sure to be appealed by the Trump Administration.

 

October 18, 2017 in Courts and Judging, Current Affairs, Establishment Clause, First Amendment, Opinion Analysis, Race, Religion | Permalink | Comments (0)

Wednesday, October 11, 2017

Ninth Circuit Denies En Banc Review for Berkeley Ordinance Requiring Cell Phone Retail Disclosures

In an Order of denial of en banc review in CTIA- The Wireless Ass'n v. City of Berkeley, a concurring opinion by the original majority judges and a dissenting opinion demonstrate the continuing controversies surrounding the constitutionality of compelled commercial speech.

Recall that the original panel opinion in April upheld the constitutionality of Berkeley's mandated notice to purchasers of cell phones regarding exposure to RF radiation.  The First Amendment issue was the controversial choice of standards in compelled disclosure in a commercial context: is the correct standard the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985)? A majority of the panel, affirming the district judge, held that Zauderer applied.

In the denial of rehearing and the denial of en banc review, the original panel judges in the majority, Fletcher and Christen,wrote briefly to rearticulate their views. While they stated their panel opinion "largely speaks for itself," they stressed that their opinion was consistent with other circuits.  The opinion has a thorough yet succinct list of the cases in this area. They concluded that:

Our colleague would have us create a circuit split with the D.C., First, Second and Sixth Circuits. We decline to do so on two grounds. First, circuit splits are generally to be avoided. Second, and more important, we believe that our four sister circuits got it right.

Writing a dissenting opinion from the denial of en banc was not Judge Friedland of the original panel - - - who did vote for rehearing - - - but Judge Kim Wardlaw, who wrote that although she does not ordinarily file "dissentals" (quotes in original), she believes that the Ninth Circuit should clarify that Zauderer's rational basis standard should apply only when the government compels speech to prevent consumer deception. She discussed the recent Ninth Circuit panel decision finding  warnings about sugary drinks violated the First Amendment. She argued that there was the potential for conflicting results as "district judges to make essentially factual judgments about a disclosure’s veracity and its burden on a business even before the parties have developed an evidentiary record." 

Judge Wardlaw concluded by stating that she is "looking forward" to  the next compelled disclosure case.  Most likely, she will not have too long to wait as this continues to be a contentious issue. 

October 11, 2017 in Courts and Judging, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Ninth Circuit Says California's Prorator Registration Law Likely Violates Dormant Commerce Clause

The Ninth Circuit ruled yesterday that California's prorator license law likely violates the Dormant Commerce Clause. In the same ruling, the court held that California's mandatory disclosure requirements likely did not violate the First Amendment, and that the case did not warrant Younger abstention. The court sent the case back for further proceedings.

The case, Nationwide Biweekly v. Owen, arose when California prosecutors and regulators targeted Nationwide Biweekly Administration for fraud investigations involving one of its mortgage-payoff products. Here's how it works: a consumer would pay to Nationwide his or her monthly mortgage bill every two weeks, instead of paying to the lender directly every month. Nationwide would then pay the lender every month. This meant that a consumer would pay to his or her lender, through Nationwide, an extra monthly payment each year and thus pay off the loan sooner. Nationwide advertised the product as a "100% savings," but failed adequately to disclose the discount rate (based on the time-value of money) and fees for the product. So what appears to be a cost-free (and thus savings-only) product in fact is not cost-free.

The Monterey County District Attorney's Office sent Nationwide a letter about the practice and alleged that Nationwide was violating several California laws. In particular, the DA's office wrote that Nationwide was violating two provisions that required it to say that it's not affiliated with the lender in any solicitation to consumers for its product. The letter also said that Nationwide was violating California's "prorator" registration law, which required a "prorator" (a "person who, for compensation, engages in whole or in part in the business of receiving money or evidences thereof for the purpose of distributing the money or evidences thereof among creditors in payment or partial payment of the obligations of the debtor") to obtain a license. But under California law, such a license is only available to a corporation if the corporation is "organized under the laws of this State for that purpose." The Commissioner later sent Nationwide a letter notifying the corporation that it was investigating Nationwide's unlicensed business activity.

Nationwide filed suit in the Northern District, seeking to enjoin enforcement of the disclosure requirements by the DA. A Nationwide subsidiary later filed suit in the Northern District seeking to enjoin enforcement of the registration requirement against the Commissioner. The court rejected Nationwide's motion for a preliminary injunction in both cases, and Nationwide filed notices of appeal.

About a month after the opening appellate briefs were filed, the DA and the Commission filed a joint enforcement suit in California Superior Court. The district court dismissed both federal cases under Younger, and Nationwide appealed.

The Ninth Circuit ruled first that Younger abstention was not appropriate, because "before the date that the state case was filed, the district court had already conducted proceedings of substance on the merits." In particular, the court "spend a substantial amount of time evaluating the merits of the cases in considering and denying (in a detailed and reasoned order) Nationwide's motions for preliminary injunctions."

The court went on to hold that Nationwide was unlikely to succeed on its First Amendment claim. It ruled that under Zauderer, the "required disclaimers--short, accurate, and to the point--are reasonably related to California's interest in preventing . . . deception."

Finally, the court said that California's licensing requirement likely violated the Dormant Commerce Clause, because California's requirement makes in-state incorporation a prerequisite to getting a license to engage in interstate commerce.

Judge Montgomery argued in dissent that the federal proceedings were still at an embryonic stage and the court should have abstained under Younger.

October 11, 2017 in Cases and Case Materials, Dormant Commerce Clause, Federalism, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, October 10, 2017

SCOTUS Vacates Fourth Circuit Opinion in Muslim Ban 2.0

 The United States Supreme Court issued an Order in Trump v. International Refugee Assistance Project (IRAP) bring the case to a close:

We granted certiorari in this case to resolve a challenge to“the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

Recall that the en banc Fourth Circuit concluded that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order. The main opinion was authored by Chief Judge Roger Gregory with six other judges joining in full.  The case had proceeded directly to en banc from Maryland District Judge Theodore Chuang's Opinion and nationwide injunction .

Most likely, a similar order disposing on Hawai'i v. Trump will follow.

However, the new "travel ban" - - - the third attempt by the Trump Administration - - - has already been challenged.

 

 

October 10, 2017 in Current Affairs, Establishment Clause, Executive Authority, Family, First Amendment, Race | Permalink | Comments (0)

Friday, October 6, 2017

AG Releases Principles of Religious Liberty

Attorney General Jeff Sessions today released a memo for all executive departments and agencies on Federal Law Protections for Religious Liberty. The document contains 20 "principles of religious liberty" that "should be understood and interpreted in light of the legal analysis set forth in the appendix to this memorandum."

The document came out the same day as HHS's new interim final rules that employers more leeway to object on religious grounds to the Obamacare "contraceptive mandate."

The HHS rules may well predict how we might expect the government to implement AG Sessions's principles. The principles themselves largely rehearse existing law (but emphasizing and tilting toward free exercise), but may open the door to policies (like HHS's new rules) that lean toward religion. 

The principles hit on several lightning rods in recent religion debates, including the "contraception mandate," IRS treatment of religious non-profits, abortion, and religious organizations' participation in government contracting and aid programs.

The Appendix on Free Exercise spells out the position on generally applicable laws, stating that "even a neutral, generally applicable law is subject to strict scrutiny under this Clause if it restricts the free exercise of religion and another constitutionally protected liberty, such as the freedom of speech or association, or the right to control the upbringing of ones' children." The provision goes on merely to describe Supreme Court cases in this area, but the language could support a position that laws prohibiting discrimination by sexual orientation are unconstitutional--the exact position DOJ took in Masterpiece Cake. It's not clear under the principles how far the government might extend this argument.

As to government contracting and aid programs, the Appendix on the Establishment Clause gives a flavor of the overall orientation of the document--restating existing law, with a decided tilt toward religion, leaving us to wait and see just how far these principles will extend. Here's that portion in full (citations omitted):

The Establishment Clause, too, protects religious liberty. It prohibits government from establishing a religion and coercing Americans to follow it. It restricts government from interfering in the internal governance or ecclesiastical decisions of a religious organization. And it prohibits government from officially favoring or disfavoring particular religious groups as such or officially advocating particular religious points of view. Indeed, "a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion." That "guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse." Thus, religious adherents and organizations may, like nonreligious adherents and organizations, receive indirect financial aid through independent choice, or, in certain circumstances, direct financial aid through a secular-aid program.

October 6, 2017 in First Amendment, News, Religion | Permalink | Comments (0)

Wednesday, October 4, 2017

Daily Read: Redistricting and Gerrymandering Primer

 Trying to get up to speed on the law of redistricting and gerrymandering after the oral argument in Gill v. Whitford

A terrific source is the Congressional Research Service Report, Congressional Redistricting Law: Background and Recent Court Rulings, by L. Paige Whitaker, from March 2017. 

Like all CRS reports, this one is relatively brief (23 pages) and written for an intelligent but not necessarily fully conversant audience. The discussion of partisan gerrymandering on pages 13-16 provides an excellent background to Whitford, including a discussion of Vieth v. Jubelirer (2004) and Justice Kennedy's pivotal role:

The deciding vote in Vieth, Justice Kennedy, concluded that while the claims presented in that case were not justiciable, he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.” Further, Justice Kennedy observed, that while the appellants in this case had relied on the Equal Protection Clause as the source of their substantive right and basis for relief, the complaint also alleged a violation of their First Amendment rights. According to Justice Kennedy, the First Amendment may be a more relevant constitutional provision in future cases that claim unconstitutional partisan gerrymandering because such claims “involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” In contrast, Justice Kennedy noted, an analysis under the Equal Protection Clause emphasizes the permissibility of a redistricting plan’s classifications. When race is involved, Justice Kennedy reasoned, examining such classifications is appropriate because classifying by race “is almost never permissible.” However, when the issue before a court is whether a generally permissible classification—political party association—has been used for an impermissible purpose, the question turns on whether the classification imposed an unlawful burden, Justice Kennedy maintained. Therefore, he concluded that an analysis under the First Amendment “may offer a sounder and more prudential basis for intervention” by concentrating on whether a redistricting plan “burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association.”

[footnotes omitted].  The CRS Report also has a great discussion of the three-judge court decision in Gill v. Whitaker.

In general, the report "analyzes key Supreme Court and lower court redistricting decisions addressing four general topics":

(1) the constitutional requirement of population equality among districts;

(2) the intersection between the Voting Rights Act and the Equal Protection Clause; (although the Report was produced before the Court's decision in Cooper v. Harris  it discusses the then-pending case);

(3) the justiciability of partisan gerrymandering; and

(4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.

An objective and great resource for anyone working on these issues in constitutional law.

 

October 4, 2017 in Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Teaching Tips | Permalink | Comments (0)

Tuesday, October 3, 2017

SCOTUS Hears Arguments on Constitutionality of Partisan Gerrymandering

 In oral arguments today in Gill v. Whitford,  the United States Supreme Court confronted the constitutionality of gerrymandering on the basis of political party.

Recall that in an extensive opinion the three-judge court concluded that Wisconsin's "gerrymandering" of districts was unconstitutional, rejecting the notion that the Equal Protection Clause's application "must be limited to situations where the dilution is based on classifications such as race and population." Instead, the three-judge court ruled that the First Amendment and Equal Protection Clause, together, "prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds."

The question of whether the issue was one of Equal Protection or First Amendment permeated the oral argument, in part because of the standing hurdle, with Justice Kennedy posing the initial question asking the attorney for Wisconsin (and Gill) to assume that the Court had "decided that this is a First Amendment issue, not an equal protection issue."  Later Justice Kennedy asked the attorney for the Wisconsin State Senate as amici curiae who had been allotted time in oral argument the question in a more straightforward manner: "Is there an equal protection violation or First Amendment violation?" assuming standing.  In the argument for the challengers to the state redistricting scheme, the attorney for the appellees Paul Smith seemed to lean toward the First Amendment regarding standing, but also stated there was not "anything unusual about using the First Amendment and the Fourteenth Amendment to regulate the abusive management of state elections by state government."

How a court would regulate (or even determine) whether state government's regulation was "abusive" is one of the central questions, no matter the doctrinal frame. Are there manageable judicial standards?  Does the "efficiency gap" [EG] provide those standards? Justice Breyer sought to provide a framework early in the argument:

So I'd have step one.  The judge says,Was there one party control of the redistricting?  If the answer to that is no, say there was a bipartisan commission, end of case. Okay?

Step two, is there partisan asymmetry? In other words, does the map treat the political parties differently?  And a good evidence of that is a party that got 48 percent of the vote got a majority of the legislature. Other evidence of that is what they call the EG,  which is not quite so complicated as the opposition makes it think.  Okay?  In other words, you look to see. 


Question 3, is -- is there going to be persistent asymmetry over a range of votes? That is to say one party, A, gets 48 percent, 49 percent, 50 percent, 51, that's sort of the S-curve shows you that, you know, whether there is or is not.  And there has to be some.

And if there is, you say is this an extreme outlier in respect to asymmetry? And then, if all those -- the test flunks all those things, you say is there any justification, was there any other motive, was there any other justification?

Now, I suspect that that's manageable.

6a00d8341bfae553ef01bb09c9853b970d-800wiJustice Gorsuch returned to Breyer's standards later in the argument, essentially asking counsel for the challengers what the limiting principle would be so that every district would not be subject to litigation. 

Justice Kagan also sought a limiting principle, especially since the redistricting map at issue was so problematical.  Yet Justice Kagan contended that the science of the redistricting was a science - - - and settled and understandable - - - although Chief Justice Roberts referred to the EG as "sociological gobbledygook." The Chief Justice also noted that the EG "doesn't sound like language in the Constitution," and that the "intelligent man on the street" would view the Court as being political - - - "the Supreme Court preferred the Democrats over the Republicans" - - - which would cause "serious harm to the status and integrity of the decisions of this Court."

For Justices Ginsburg and Sotomayor, the central concern seemed to be protecting what Ginsburg called "the precious right to vote" and what Sotomayor criticized as "stacking the deck," asking about the political value of gerrymandering at all. Justice Sotomayor also described the repeated map-making and redrawing of districts until the Wisconsin map was as partisan as it could possibly be.  She asked the attorney for Wisconsin why the legislators didn't use one of the earlier maps. He answered: "Because there was no constitutional requirement that they do so."  She responded: "That's the point."

As always, it is unclear from oral argument what the Court might do, but there did seem to be recognition of the problem of gerrymandering and the possibility of manageable standards with a limiting principle for many of the Justices.

 [image via] 

 

October 3, 2017 in Elections and Voting, Equal Protection, First Amendment, Oral Argument Analysis, Race, Standing, Supreme Court (US) | Permalink | Comments (1)

Thursday, September 28, 2017

Another Reason Why Justice Gorsuch Matters: Public Sector Unions

The Court today agreed to take up a First Amendment challenge to a public sector union fair-share law in Janus v. AFSCME. The case pits non-members' First Amendment right not to pay dues for a union's collective bargaining activities (even if they benefit from those activities) against a union's interest in collecting dues for its collective bargaining efforts that everyone benefits from in a union shop.

This isn't the first time the Court has considered the issue, not by a long shot. The Court originally upheld fair-share laws--state requirements that non-members pay union dues for collective bargaining (but not for a union's political activities)--in 1977 in Abood v. Detroit Board of Education. In that case, the Court held that a state's interests in avoiding non-union-member free-riders and labor harmony permitted a state to require non-members to pay a "fair share" of a union's collective bargaining activities. (Under federal law, the union has to represent even non-members in a union shop.)

But more recently, the Court has hinted in a couple of cases that it's ready to reconsider Abood and overturn fair share laws under the First Amendment. A case, Friedrichs v. California Teachers Association, was teed up for just such a ruling when Justice Scalia passed away. When the 8-member Court decided Friedrichs, it deadlocked, leaving a Ninth Circuit ruling upholding fair share in place.

At the time, Senator Mitch McConnell was refusing to give Judge Garland, President Obama's nominee to replace Justice Scalia, a hearing in the Senate. McConnell famously waited President Obama's term out, and the Senate then confirmed President Trump's nominee, Neil Gorsuch.

With Justice Gorsuch on board, the Court now agreed to hear another case testing fair share, Janus. And that doesn't bode well for fair share laws and public sector unions. If Justice Gorsuch votes with the conservatives (who all presumably would have voted against fair share in Friedrichs), as seems likely or even certain, it'll mark the end of fair share and the likely demise of public sector unions. That's because if the Court strikes fair share, non-members in a union shop will have no requirements and few incentives to pay for the union's collective bargaining activities that benefit them. And without a requirement or incentive to pay fair share, many won't. And seeing that non-members can free ride on the union (because even non-members benefit from a union's collective bargaining activities), members will likely drop out to free ride, too. The siphoning of dues-paying non-members and members will leave the union with less and less resources to support collective bargaining, potentially decimating public sector unions.

There's no guarantee, of course, that a Justice Garland, or any other Obama appointee, would have voted to uphold fair share laws. But with Justice Gorsuch filling Justice Scalia's seat, we can all but guarantee that fair share will go away.

September 28, 2017 in Association, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (2)

Federal Judge Upholds New York's Prohibition of Ballot Selfies or Polling Site Photographs Against First Amendment Challenge

 In his opinion in Silberberg v. Board of Elections of New York, Senior District Judge P. Kevin Castel upheld the constitutionality of two New York provisions restricting photographs related to elections.  N.Y. Election Law §17-130(10) makes it a misdemeanor to show one's ballot after it has been prepared for voting to any person and has been interpreted to prohibit the taking and posting on social media of so-called "ballot selfies." Less centrally, the New York City Board of Elections had a policy that prohibits photography at polling sites. The challengers argued that both of these provisions infringed on their First Amendment rights.

Recall that Judge Castel had previously denied a motion for preliminary injunction against the ballot-selfie statute.  However, Castel's main rationale was based on the preliminary injunction standards, and heavily weighed the age of the statute (enacted in 1890) against the timing of the lawsuit (13 days before the election).

In the present opinion, Judge Castel, after a bench trial, more carefully analyzed the First Amendment claims. On the N.Y. Election Law §17-130(10) challenge, he concluded that despite the age of the statute, it plain language, underlying purpose, and likely legislative intent all supported the interpretation that the statute did prohibit ballot-selfies.  He then concluded that the statute did restrict political speech and was thus subject to strict scrutiny.

Judge Castel relied in large part on Burson v. Freeman (1992) in which the Court upheld a prohibition of campaigning within 100 feet of a polling place, noting that the Tennessee statute at issue in Burson was also first enacted in 1890 and "intended to combat the same evils that the 1890 New York statute was intended to combat; vote buying and voter intimidation." Judge Castel found that both of these interests were compelling as well as actual.  Distinguishing the recent First Circuit decision in Rideout v. Gardner, Judge Castel reasoned:

Plaintiffs urge this Court to follow Rideout v. Gardner, where the First Circuit, in upholding the district court’s injunction against the enforcement of a New Hampshire statute updated in 2014 to specifically prohibit the sharing via social media of a digital photograph of a marked ballot, found that the statute did not address an “actual problem in need of solving.”  In that case, decided on summary judgment, virtually no specific evidence was presented regarding vote buying or voter intimidation in New Hampshire. In the present case, ample evidence has been presented regarding vote buying and voter intimidation in New York, both historic and contemporary. And New Hampshire is not New York City. New York elections were bought and sold for decades before the introduction of the Australian ballot reforms. The statute was an appropriate response to the political corruption in New York in 1890 and is a valid measure today to prevent that history from repeating itself.

 [citations omitted]

Miss_E._S._O'Brien_putting_her_vote_into_the_box_at_the_City_Hall_Brisbane_1947_(27895206401)Judge Castel also found the criminalization was narrowly tailored, again relying in large part on Burson. Castel also noted that the challengers had put forth no acceptable alternative and also discussed the issue of "social coercion," reasoning that employers and other organizations could use the ballot selfie to "enforce political orthodoxy."

As an alternative ground, Judge Castel concluded that the election statute was not necessarily subject to strict scrutiny because although it was a content-based restriction, it occurred in a non-public forum. The polling site was not a public forum: the sites are "opened by the government only for the specific purpose of enabling voters to cast ballots and are not historically open for public debate or speech."  Relatedly, the ballot itself is not a public forum, relying on cases such as Burdick v. Takushi (1992). Judge Castel then found that the restrictions were "reasonable."

In a few pages, Judge Castel dispatched the challenge to the City's unwritten policy of prohibiting photography at polling places.  Judge Castel found this 20 year old policy was content-neutral and again relied on the finding that the polling sites were not public fora. However, even if the sites were public fora, there were ample alternative means for political expression.

Judge Castel therefor rendered final judgment for the government defendants, allowing for appeal to the Second Circuit.  Given the First Circuit's opinion in Rideout with a contrary result, this may be the next step to a circuit split on the issue of ballot selfies.

[image via]

September 28, 2017 in Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Court to Hear Union Fair Share Challenge

The Supreme Court today granted cert. in Janus v. American Federation, the case challenging union fair-share laws under the First Amendment.

The Court previously deadlocked on the issue. But with the addition of Justice Gorsuch, the Court can rule (likely against union fair share laws).

September 28, 2017 in Cases and Case Materials, First Amendment, News | Permalink | Comments (0)

Tuesday, September 26, 2017

Seventh Circuit Strikes Illinois's Full-Slate Ballot Access Requirement

The Seventh Circuit ruled on Friday that Illinois's requirement that a new political party field candidates for all offices on the ballot in the relevant political subdivision violated the First Amendment. (H/t Aggie Baumert.) The ruling strikes the full-slate requirement for new parties, but leaves in place a signature requirement for them.

The case tested Illinois's requirement that a "new" political party field candidates for every office on the ballot in the political subdivision where it wishes to compete. (A "new" political party is one that's not (yet) "established" based on performance in prior elections.) New parties also have to obtain a minimum number of signatures on nominating petitions.

These rules meant that when the Libertarian Party sought to put up a candidate for Kane County auditor, it had to get the signatures, and it also had to put up candidates for circuit clerk, recorder, prosecutor, coroner, board chairman, and school superintendent.

The Party sued, arguing that the full-slate requirement (but not the signature requirement) violated the First Amendment.

The Seventh Circuit agreed. The court ruled first that the Party had standing, even though it didn't get enough signatures (and therefore couldn't get on the ballot even if it did field a full slate). The court explained that the Party's injury wasn't not getting on the ballot; it was the burden on its free association:

It isn't simply that the Party couldn't run its candidate for county auditor in the 2012 election. It's that Illinois law imposes a burdensome condition on the Party's exercise of its right of political association; that is, the Party's injury is its inability to access the ballot unless it fields a full slate of candidates. That requirement persists and stands as an ongoing obstacle to ballot access.

The court went on to rule that the full-slate requirement "severely burdens the First Amendment rights of minor parties, their members, and voters," thus triggering strict scrutiny. And under strict scrutiny, the court said that the full-slate requirement simply didn't meet the state's interests promoting political stability, avoiding overcrowded ballots, and preventing voter confusion--and, indeed, cut against those interests:

By creating unwanted candidacies, the requirement increases political instability, ballot overcrowding, and voter confusion. . . . Whatever its aim, the requirement forces a minor party to field unserious candidates as a condition of nominating a truly committed candidate. . . .

In reality, then, the full-slate requirement does not ensure that only parties with a modicum of support reach the ballot. Instead it ensures that the only minor parties on the ballot are those that have strong public support or are willing and able to field enough frivolous "candidates" to comply with the law.

September 26, 2017 in Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis, Standing | Permalink | Comments (0)