Monday, December 1, 2014
The United States Supreme Court heard oral arguments today in the "facebook threats" case, Elonis v. United States. As we previously discussed when the Court granted certiorari, the Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof. There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate. The doctrine of "true threats" has long been a fraught one. As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech. Equally fraught, as we previously discussed, can be repeating the content of the speech that may or may nor be a true threat given that the "adult content" may run afoul of the policies of internet providers or advertisers.
Today's argument steered clear of specific language of the threats and focused on how a true threat must be proven, or more specifically, how the jury instructions should cabin the definitions. For the petitioner, John Elwood, argued that there needed to be specific intent and that negligence or a reasonable person standard was insufficient. But there were further discussions about whether there must be knowledge and/or purpose. During the argument of Michael Dreeben, Deputy Solicitor General, Justice Alito phrased it this way:
My understanding of the Model Penal Code levels of mens rea is that there is a distinction, but a razor-thin distinction, between purpose and knowledge. So the idea that backing off from purpose to knowledge is going to make very much practical difference, I think is fanciful. There is a considerable difference between distance between knowledge and recklessness.
Although much of the argument delved into common law and Model Penal Code doctrine, the arguments made clear that the First Amendment is intertwined any distinctions. The question of "valuable speech" was raised by Justice Scali, but it was the discussions of rap lyrics that focussed the First Amendment questions most sharply. The Deputy Solicitor General had a difficult time arguing "context": knowing when rap lyrics are entertainment rather than serious threats. Chief Justice Roberts quoted lyrics from the Petitioner's brief - - - lyrics from rap star Emimen - - - and wondered whether these could be prosecuted. On rebuttal, Mr. Elwood noted that Elonis posted "long and painful to read" rap even before the protection order on behalf of Elonis' wife was entered. However, Justice Alito did not seem convinced:
Well, this sounds like a roadmap for threatening a spouse and getting away with it. So you you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an aspiring rap artist. And so then you are free from prosecution.
The issue here is actual criminalization of the speech, but the use of rap lyrics to prove "intent" in a criminal trial as in the New Jersey Supreme Court case earlier this year might not have been too far from the Court's mind.
At least a few Justices, including Chief Justice Roberts, seemed troubled by the line between true threats and artistic speech.
Thursday, November 20, 2014
November 20, as President Obama acknowledged again this year, is "Transgender Day of Remembrance." While the commemoration often focuses on violence against trans* people, it also provokes consideration of legal remedies to end discrimination.
In her article posted on ssrn, From Jack to Jill: Gender Expression as Protected Speech in the Modern Schoolhouse, Professor Danielle Weatherby (pictured) takes up the issue of differential treatment in schools. Weatherby argues that the First Amendment has an important role to play in protecting gender expression:
With the majority of states and municipalities having enacted strong anti-bullying and anti-discrimination laws, and the judiciary on the cusp of deciding “the great bathroom debate,” the impetus toward carving out new protections for transgender students is finally underway. Nonetheless, litigants on both sides of the debate are left confused, with little practical guidance directing their conduct.
Some litigants have advanced the innovative “gender expression as protected speech” argument in limited circumstances, such as challenges to a school’s decree that a transgender girl student could not wear female apparel and accessories; an employer’s refusal to allow a female employee, who was required to wear a pants uniform at work, wear a skirt; and even an employer’s policy requiring a transgender woman to use the men’s restroom until she proved through documentation that she had undergone sexual reassignment surgery. Yet, no transgender student has advanced the argument that her use of the girls’ restroom, like her feminine dress, feminine preferences, and feminine mannerisms, constitutes symbolic expression deserving of protection under the First Amendment.
[manuscript at 50; footnotes omitted].
An individual’s conduct in using a restroom designated as either “male” or “female” or “man” or “women” expresses that individual’s belief that she belongs in that designated category of persons. By choosing to enter a facility labeled for a specific gender group, that individual is effectively stating her association with that gender. Although no words may ever be uttered, there is a strong mental association between the designation affixed to a restroom door and the fact that only those individuals identifying with that designation would enter and use that facility. Therefore, since a transgender student’s selection of a particular restroom is “sufficiently imbued with elements of communication,” the conduct is expressive and sends a particularized message about the student’s gender identity.
[manuscript at 55].
Weatherby cautions that schools should not yield to the "heckler's veto" and should protect the First Amendment rights of trans* students to expression. Ultimately, her argument is that such protection will eradicate the resort to violence.
Monday, November 10, 2014
Recall the Pennsylvania legislature's passage of the "Revictimization Act" prohibiting any act that "perpetuates the continuing effect of the crime on the victim," including seemingly a graduation speech from the inmate Mumia Abu-Jamal.
Abu-Jamal and others have filed a complaint challenging the law in federal court as violating the First Amendment as well as Article 1 §7 of the state constitution.
Thursday, November 6, 2014
In a per curiam Order of the Federal Circuit in In re Reines, the court disciplined an attorney for disseminating to clients and potential clients a highly complimentary email from a judge, rejecting a First Amendment claim.
The email, from then-Chief Judge Rader, since resigned, was not only complimentary, but problematically implied an improper ability to influence.
As the Federal Circuit opinion noted:
The compliments here were centered in a private communication and both stated and implied a special relationship between the respondent and then- Chief Judge Rader. The comments to existing and potential clients invited respondent’s retention in future matters based on this relationship. Attorney speech which ‘‘state[s] or impl[ies] an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law,’’ Model Rules of Prof’l Conduct R. 8.4(e) (2014), is either misleading (because the attorney has no ability to influence the official) or, if true, solicits business based on an offer to improperly influence the public official.
The court rehearsed the Supreme Court's attorney commercial speech cases. It also distinguished the recent Third Circuit opinion in Dwyer v. Cappell finding a First Amendment violation by a New Jersey rule prohibiting excerpts from cases mentioning the attorney although the "full text" of the opinion was permitted.
The underlying email, worth reading in full:
Tuesday, October 28, 2014
Judge Reggie B. Walton (D.D.C.) yesterday dismissed an action by True the Vote against the IRS for politicized foot-dragging on its 501(c)(3), not-for-profit application. The ruling ends True the Vote's case against the IRS, with very little chance of a successful appeal.
True the Vote sued the IRS after the agency took a long time with its 501(c)(3) application and requested additional information from the organization before granting not-for-profit status. True the Vote argued that the IRS did this because True the Vote was a politically conservative organization aligned with the Tea Party, in violation of the First Amendment, the IRC, and the APA.
But Judge Walton dismissed the organization's claims for declaratory and injunctive relief as moot, after the IRS ultimately granted 501(c)(3) status, leaving nothing more for the court to order in terms of relief. The court also ruled that the "voluntary cessation" exception didn't apply, because the IRS, by the plaintiff's own reckoning (and the court's judicial notice), "suspended" its "targeting scheme" on June 30, 2013, and wouldn't re-engage in the footdragging.
Judge Walton dismissed the plaintiff's claim for monetary relief, ruling that there's no Bivens remedy, because the IRC already provides a comprehensive statutory remedial scheme. (It didn't matter that the plaintiff didn't like the scheme, only that it existed.)
Finally, Judge Walton dismissed the plaintiff's statutory claim that the IRS requested and inspected more information than necessary from True the Vote, because the IRC allows it to do that.
True the Vote can appeal, but Judge Walton's ruling is likely to be upheld.
Wednesday, October 22, 2014
By its terms, the new "Revictimization Act" passed by the Pennsylvania legislature and signed into law by the Governor today is more than a bit vague. It provides:
Section 1304. Revictimization relief.
(a) Action.--In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.
(b) Redress on behalf of victim.--The district attorney of the county in which a personal injury crime took place or the attorney general, after consulting with the district attorney, may institute a civil action against an offender for injunctive or other appropriate relief for conduct which perpetuates the continuing effect of the crime on the victim.
(c) Injunctive relief.--Upon a showing of cause for the issuance of injunctive relief, a court may issue special, preliminary, permanent or any other injunctive relief as may be appropriate under this section.
(d) Definition.--As used in this section, the term "conduct which perpetuates the continuing effect of the crime on the victim" includes conduct which causes a temporary or permanent state of mental anguish.
Press reports, including a segment on Democracy Now, make clear that the statute is directed at Mumia Abu-Jamal (pictured right). Before signing the bill, the Governor reportedly visited a plaque commemorating the police officer Abu-Jamal was convicted of killing; the Governor was accompanied by the police officer's widow. The Governor's remarks stated that "convicted felons in prison" have "surrendered their rights" and further that "nobody has a right to continually taunt the victims of their violent crimes in the public square."
Whether any injunction against Mumia Abul-Jamal for making a speech to a graduating class - - - seemingly the incident that provoked this law - - - could survive a First Amendment challenge is doubtful. Recall that the United States Supreme Court held unconstitutional the so-called "Son of Sam" law in Simon & Schuster v. Crime Victims Board (1991). More recently, the Court decided Snyder v. Phelps (2011) essentially holding that free speech trumped the tort of intentional infliction of emotional distress. As for prisoners, the applicable standard under Turner v. Safley (1987) interrogates the curtailment of First Amendment rights in relation to "legitimate penological interests." Here, it seems, the government interest is far removed from penological interests, but instead focuses upon the interests of preventing "revictimization."
This might make an excellent in-class exercise for ConLawProfs. Or perhaps it is so easy?
It's sure to be challenged.
UPDATE: And here's the challenge.
Monday, October 20, 2014
First Circuit Finds Billboard Company has Standing in First Amendment Challenge to Massachusetts Scheme
Reversing the district judge, a unanimous panel of the First Circuit held that a billboard company had standing to challenge the Massachusetts regulatory scheme in Van Wagner Boston LLC v. Davey. The opinion, authored by Judge Bruce Selya who is known for his ambitious language, concludes that
the complaint plausibly alleges that the plaintiffs are subject to a regulatory permitting scheme that grants an official unbridled discretion over the licensing of their expressive conduct and poses a real and substantial threat of censorship. No more is exigible to give the plaintiffs standing to proceed with their challenge.
The First Circuit largely relied on City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) in which the Court held unconstitutional a municipal scheme giving the mayor the power to grant or deny applications for annual permits to publishers to place their newsracks on public property; the Court allowed the publishers to proceed with the facial challenge although they had not yet applied for a permit. The First Circuit thus rejected Massachusetts' claim that the company could not show injury in fact because the company "had applied for over seventy permits without having a single application denied." For the court, it was "too optimistic" to think that the "censorship risks are only theoretical." Instead, it noted that the company "is a large, repeat player in the world of outdoor advertising" and "it may plausibly fear incurring the Director's ire any time an existing or potential client seeks to display what might be deemed a controversial message."
The First Circuit also rejected Massachusetts' argument that the "case implicates strictly commercial speech" and thus a lesser standard should apply:
The factual premise of the Commonwealth's thesis is simply wrong. It confuses a recognized category of First Amendment analysis — commercial speech simpliciter — with something quite different: those who have a commercial interest in protected expression.
The court ends its opinion with the statement that it expresses "no opinion on the merits of Van Wagner's First Amendment claim."
To say more about standing would be supererogatory. The short of it is that Van Wagner has plausibly alleged that it is subject to a regulatory permitting scheme that chills protected expression by granting a state official unbridled discretion over the licensing of its expressive conduct. It follows — as night follows day — that Van Wagner has standing to mount a facial challenge to that regulatory permitting scheme.
The court mentioned but stated it was not considering Massachusetts' argument that the scheme's numerous factors howed that the discretion was not unbridled but properly cabined. The district judge will now be taking up this very question under First Amendment doctrine.
Wednesday, October 15, 2014
With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterling, the situation of James Risen is in limbo. In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source.
Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT. As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).
Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others. The segment explains and situates the controversy, including its current status under President Obama. It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted."
The entire segment is definitely worth watching:
Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:
AMY GOODMAN: So, you’re covering the very people who could put you in jail.
JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.
A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here). One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.
For ConLawProfs teaching First Amendment, these "sources" could be well-used.
October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 14, 2014
With the release of "Citizen Four," the film by Laura Poitras on Friday, two videos are worth a watch.
First, here is a Q&A session with Laura Poitras at the 52nd New York Film Festival on October 10 after a premier of the film.
Second, here is a "virtual interview" with Edward Snowden from the New Yorker Festival - - - including in the first minute or so the official trailer of the film (also here) and an extended discussion with Snowden:
October 14, 2014 in Current Affairs, Due Process (Substantive), Executive Authority, Film, First Amendment, Foreign Affairs, International, News, Speech, Theory, War Powers, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Thursday, October 9, 2014
Judge Colleen Kollar-Kotelly (D.D.C.) this week rejected a non-profit's challenge to the disclosure provisions in the Bipartisan Campaign Reform Act of 2002. The ruling was unsurprising, even if the case may be noteworthy, as it represents a next wave of challenges to campaign finance regulation.
The Independence Institute, a Colorado non-profit, sought declaratory and injunctive relief against FEC enforcement of BCRA's disclosure requirement as applied to a specific radio ad that the Institute planned to run before the fall elections. The Institute argued that the requirement was overbroad as applied, because the planned ad was genuine issue advocacy, and not express advocacy.
Judge Kollar-Kotelly was blunt in rejecting this argument:
This dispute can be distilled to the application of the Supreme Court's clear instructions in Citizens United: in no uncertain terms, the Supreme Court rejected the attempt to limit BCRA's disclosure requirements to express advocacy and its functional equivalent. Plaintiff in this case seeks the same relief that has already been foreclosed by Citizens United.
Judge Kollar-Kotelly then rejected the Institute's attempts to distinguish Citizens United, ruled in favor of the FEC, and upheld the disclosure requirement.
This ruling was hardly surprising: if a court is going to overturn disclosure requirements, it'll have to be the Supreme Court. Still, the case should get our attention as a next-wave challenge to campaign speech regulation--the challenge to disclosure requirements.
In its opinion in Showtime Entertainment v. Town of Mendon, the First Circuit reversed a grant a summary judgment for the Massachusetts town and found that the zoning bylaws infringed on Showtime Entertainment's "right to engage in a protected expressive activity" violated the First Amendment.
Judge Juan Torruella's opinion for the unanimous panel first confronted the issue of whether the challenge to the zoning bylaws should be viewed as a facial challenge or as an as-applied challenge. Here, there was "little practical distinction": there were only four plots of land within the "Adult Entertainment Overlay District" to which the bylaws applied. But because the relief sought was an invalidation of the zoning bylaws, the court treated the challenge as a facial one.
Additionally, the court discussed whether the town's actions should be judged as content-based, thus meriting strict scrutiny, or should be judged as content-nuetral, meriting intermediate scrutiny. The court withheld its conclusion, finding that the zoning bylaws failed even the more deferential intermediate scrutiny standard.
The problem for the Town was that its stated governmental interests - - - its proferred secondary effects - - - did not further a substantial governmental interest unrelated to the speech. These interests were two: the town's "rural aethetics" and traffic. The problem for the Town was that it sought to advance these interests only as to the Showtime Entertainment lot of the four lots and not as to the other lots occupied by a 6,900-square-foot self-storage facility, a drive-in movie theater with an estimated capacity of 700 vehicles,
and a 10,152-square-foot nightclub. While the court clarified that its inquiry was not strictly a "underinclusive" one: "Nonetheless, we rightly pay attention to underinclusiveness where it reveals significant doubts that the government indeed has a substantial interest that is furthered by its proffered purpose."
Thus, as to the "rural aesthetics," the court noted that there was no cognizable difference between a large building hosting adult-entertainment or another large building. The court also noted that counsel for the Town conceded at oral argument that "what's in the building" also mattered, thus seemingly acknowledging that this was a content-based regulation. The traffic concerns suffered a similar fate, with the court finding no distinct traffic concerns for this type of business than for others along this heavily traveled route.
In some secondary effects cases, courts merely defer to studies, but here the court discussed them specifically (noting it conducted an "independent review of the studies") and found them lacking. The studies had a common theme regarding the effect of adult-entertainment businesses on neighborhoods: the effect has a "limited radius." This undermined the Town's fallback argument that Showtime Entertainment effected the rural aesthetic of the town as a whole, rather than the non-existing rural aesthetic along the busy highway. Additionally, the court detailed the traffic studies, finding that they did not actually mention traffic, or were "largely anecdotal, rely nearly exclusively on personal perceptions rather than verifiable data, and include significant hedging language, such as indicating that increased traffic is merely a hypothesis." The court also stated that in "several cases, they also make apparent that the true, primary concern is not traffic, but the type of patrons thought to visit adult-entertainment businesses," thus becoming content-based.
The secondary effects doctrine has proven a controversial one, with some of the Justices who first proffered the notion later disavowing it. The First Circuit refreshingly gives the doctrine a rigorous application.
Tuesday, October 7, 2014
Judge Catherine D. Perry (E.D. Mo.) temporarily enjoined an ad hoc rule that allowed police officers to order peaceful protesters in Ferguson to move along rather than standing still (and threatening them with arrest if they don't). The ruling means that the law enforcement cannot enforce the move-along rule pending the outcome of the case on the merits. But Judge Perry was quick to write that nothing in her ruling stopped the police from enforcing the Missouri refusal-to-disperse statute, lawfully controlling crowds, or otherwise lawfully doing their jobs.
The case, Abdullah v. County of St. Louis, Missouri, challenged the ad hoc rule developed by law enforcement authorities that allowed police officers to order peaceful protesters to move along, instead of standing still, even when they aren't violated any law. The rule is just that, a rule (and not a statutory law), developed by law enforcement in the context of the Ferguson protests.
Judge Perry concluded that the plaintiffs were likely to succeed on the merits that the move-along rule was void for vagueness and violated free speech.
Thursday, October 2, 2014
In an Order today, the United States Supreme Court granted certiorari in the closely-watched case of Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule prohibiting the personal solicitation of campaign contributions in a judicial election.
The Florida Supreme Court's per curiam opinion rejected the First Amendment challenge to Florida Code of Judicial Conduct, Canon 7C(1), which as the court notes, is substantially similar to Canons 4.1(A)(8) and 4.4 of the ABA Model Code of Judicial Conduct. The Florida Canon provides:
A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate's campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or members of the candidate's family.
The Florida Supreme Court held that the Canon satisfied strict scrutiny, finding that there were two compelling governmental interests (preserving the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary) and that the provision was narrowly tailored to serve these interests (the prohibition of direct fundraising nevertheless allows for the establishment of "campaign committees" to raise funds).
The Florida Supreme Court noted that "every state supreme court that has examined the constitutionality of comparable state judicial ethics canons" has upheld their constitutionality, citing opinions from the state supreme courts of Arkansas, Maine, and Oregon, opinions that the court discusses throughout its analysis. The Florida Supreme Court footnotes this statement in an interesting manner:
As to the federal courts that have considered this issue—whose judges have lifetime appointments and thus do not have to engage in fundraising—the federal courts are split. Several federal courts have held that laws similar to Canon 7C(1) are constitutional. See Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012); Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010); Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010); Stretton v. Disciplinary Bd. of S. Ct. of Pa., 944 F.2d 137 (3d Cir. 1991). Conversely, other federal courts have held that laws similar to Canon 7C(1) are unconstitutional. See Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010); Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).
[emphasis added]. Thus, the Florida Supreme Court declined to follow the Eleventh Circuit's finding that a similar judicial canon from Georgia, one of Florida's fellow-Eleventh Circuit states, was persuasive, observing that federal judges are not elected and seemingly implying that this may influence their reasoning.
Now that the United States Supreme Court has taken certiorari, however, it seems that the First Amendment issue will be resolved by Justices who are not elected. Interestingly, since retiring from the Court, former Justice O'Connor has criticized judicial elections as dangerous to a fair and impartial judiciary, but of course she will not be amongst those making the ultimate decision. Perhaps she will file an amicus brief?
The United States Supreme Court has granted certiorari in Reed v. Town of Gilbert, Arizona, regarding a First Amendment challenge to the town's regulation of outdoor signs.
The town requires a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.” The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.”
There were other exemptions for ideological signs and for political (campaign) signs with different requirements.
Reed and Good News Community Church challenged the town's temporary directional sign regulation as violating the First Amendment.
The Ninth Circuit upheld the regulatory scheme in a divided opinion, the second time the court had heard the controversy. The majority reiterated its earlier conclusion that the regulation was content-neutral: it "does not single out certain content for differential treatment, and in enforcing the provision an officer must merely note the content-neutral elements of who is speaking through the sign and whether and when an event is occurring."
It held that "Supreme Court Precedent" affirmed its "definition of content-neutral" and in so doing the Ninth Circuit's February 2013 opinion relied in large part on Hill v. Colorado (2000). The Ninth Circuit also relied on Hill's holding that the buffer zone at issue was constitutional and that "not all types of noncommercial speech need be treated the same;" this reliance may be less sturdy after the Court's decision last term in McCullen v. Coakley, in which the Court held a buffer zone unconstitutional.
In considering whether the differing restrictions between types of noncommercial speech in the various exemptions were “adequately justified without reference to the content of the regulated speech," the court concluded they were. Moreover, the court found that the town was entitled to deference in its choices as to size and duration of the signs.
Dissenting, Judge Paul Watford argues that the town's scheme is content-based and unconstitutional. Here's the gist of his reasoning:
The content-based distinctions [the town of ] Gilbert has drawn are impermissible unless it can identify some non-communicative aspect of the signs at issue to justify this differential treatment. Gilbert has merely offered, as support for the sign ordinance as a whole, its interest in enhancing traffic safety and aesthetics. Traffic safety and aesthetics are certainly important interests. But to sustain the distinctions it has drawn, Gilbert must explain why (for example) a 20-square-foot sign displayed indefinitely at a particular location poses an acceptable threat to traffic safety and aesthetics if it bears an ideological message, but would pose an unacceptable threat if the sign’s message instead invited people to attend Sunday church services.
Gilbert has not offered any such explanation, and I doubt it could come up with one if it tried. What we are left with, then, is Gilbert’s apparent determination that “ideological” and “political” speech is categorically more valuable, and therefore entitled to greater protection from regulation, than speech promoting events sponsored by non-profit organizations. That is precisely the value judgment that the First and Fourteenth Amendments forbid Gilbert to make.
Oral argument promises to be a lively one full of hypotheticals; it has not yet been scheduled.
Thursday, September 25, 2014
The Seventh Circuit this week reversed an earlier district court injunction halting a criminal investigation into coordination between Governor Scott Walker's campaign committee and "independent" groups on issue advocacy. We posted on the injunction here.
Recall that the Milwaukee County District Attorney asked a state court to initiate a "John Doe" criminal investigation into alleged coordination between Walker's campaign committee and "independent" groups on issue advocacy. As part of the investigation, the court issued subpoenas, including one to Eric O'Keefe, who manages the Wisconsin Club for Growth, Inc., one of these "independent" groups. The state court granted O'Keefe's motion to quash. The prosecutor took the issue to the state's higher courts, but, before those courts could rule, O'Keefe filed in federal court, seeking an injunction and monetary damages against the prosecutors. The district court granted the injunction (thus halting the investigation), ruled that the defendants did not enjoy qualified immunity, and ordered the defendants to return or destroy all documents obtained in the investigation.
The Seventh Circuit reversed the injunction and dismissed the case. It held that the Anti-Injunction Act and principles of equity, comity, and federalism prohibit it. The court said that the plaintiffs couldn't show irreparable injury, that they had adequate remedies under state law, and that federal relief was not appropriate. Because the state court judge "concluded that the investigation should end as a matter of state law, because [the prosecutor] lacks evidence that state law has been violated . . . [t]he result is an injunction unnecessary at best, advisory at worst."
The court also took the district judge to task for effectively anticipating a Supreme Court ruling that would allow the kind of coordination alleged here under the First Amendment. That hasn't happened (yet), said the court, and the district judge was wrong to base the injunction on it.
The court said that the district judge was also wrong to deny qualified immunity.
Plaintiffs' claim to the constitutional protection for raising funds to engage in issue advocacy coordinated with a politician's campaign committee has not been established 'beyond debate.' To the contrary, there is a lively debate among judges and academic analysts. . . . No opinion of the Supreme Court, or by any court of appeals, establishes ('clearly' or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups--let alone that the First Amendment forbids even an inquiry into that topic.
Thus, the defendants enjoy qualified immunity.
Finally, the court held that "Wisconsin, not the federal judiciary, should determine whether, and to what extent, documents gathered in a John Doe proceeding are disclosed to the public." The court said that the federal district court "should ensure that sealed documents in the federal record stay sealed, as long as documents containing the same information remain sealed in the state-court record."
This ruling almost surely marks the end of the federal case. Because of the Anti-Injunction Act and the state of First Amendment law on campaign finance, this is not a good candidate for en banc or Supreme Court review.
September 25, 2014 in Campaign Finance, Cases and Case Materials, Courts and Judging, Federalism, First Amendment, Jurisdiction of Federal Courts, Music, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)
Monday, September 22, 2014
When the United States Supreme Court decided United States v. Apel in February 2014, the Court's analysis of a protest on/outside a military facility focused on the statutory construction issue and as the oral argument predicted, rebuffed the First Amendment issue.
However, Justice Ginsburg's concurring opinion made clear that the First Amendment issue still required resolution. She wrote:
But a key inquiry remains, for the fence, checkpoint, and painted line, while they do not alter the Base boundaries, may alter the First Amendment calculus. When the Government permits the public onto part of its property, in either a traditional or designated public forum, its “ability to permissibly restrict expressive conduct is very limited.” United States v. Grace, 461 U. S. 171, 177 (1983). In such venues, the Government may enforce “reasonable time, place, and manner regulations,” but those regulations must be “content-neutral [and] narrowly tailored to serve a significant government interest.” Ibid.
Today, a panel of the Ninth Circuit did not agree with Justice Ginsburg's identification of a "key issue" and quickly dispatched the First Amendment claim in its very brief per curiam opinion in United States v. Apel. Here's the entirety of the analysis:
In light of the Supreme Court’s decision, Apel’s challenge to the applicability of 18 U.S.C. § 1382 to the facts of his case is denied. As to Apel’s defense that his conviction violates the First Amendment, we agree with the district court’s conclusion that “whether or not the designated protest area at Vandenberg Air Force Base is a public forum, the military may properly exclude recipients of valid bar letters, such as Mr. Apel, without violating the First Amendment.” See United States v. Albertini, 472 U.S. 675, 687–89 (1985); United States v. Walsh, 770 F.2d 1490, 1493 (9th Cir. 1985) (“Albertini indicates that whether or not a base is a public forum, the military may exclude recipients of bar letters without violating the First Amendment.”).
Thus, Apel's extended protest outside the Vandenberg Air Force Base can be criminalized.
A call that should be of interest to many ConLawProfs:
Policing, Protesting, and Perceptions:
A Critical Examination of the Events in Ferguson
at the University of Missouri
Here are some details on the call for works-in-progress:
The University of Missouri Law Review is issuing a call for proposals for an upcoming Works-in-Progress conference, which will be held on Thursday, February 26, 2015 in conjunction with the Missouri Law Review’s Symposium, which will take place the following day Friday, February 27, 2015. The symposium, "Policing, Protesting, and Perceptions: A Critical Examination of the Events in Ferguson," focuses on a number of issues that arose from the events in Ferguson, Missouri this past August following the shooting of Michael Brown, and will include a number of invited panelists. Marc Mauer, the Executive Director of The Sentencing Project, will deliver the keynote address. On Thursday, February 26, 2015, the Missouri Law Review will host several works-in-progress panels related to the subject matter of the symposium.
If you interested, we would ask that you submit a presentation proposal. Presentation proposals should be no more than one page in length. The topic of the presentation can include analyses that are practical, theoretical or interdisciplinary in nature relating to what transpired in Ferguson, MO. Proposals from scholars outside the United States are also welcome, although prospective attendees should note that there is no funding available to assist participants with their travel expenses. Proposals for the works-in-progress will be accepted until November 15, 2014. Those interested may submit proposals and direct questions to Professor S. David Mitchell (MitchellSD AT missouri.edu). Decisions regarding accepted proposals will be made by December 1, 2014.
Thursday, September 18, 2014
Recall that in February of 2014, a panel of the Ninth Circuit in Dariano v. Morgan Hill Unified School District rejected a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration.
The en banc Ninth Circuit has now denied en banc review, over a dissent, and issued an amended panel opinion which adds several paragraphs of analysis.
Dissenting from the denial of rehearing en banc, Judge O’Scannlain, joined by Judges Tallman and Bea, argued that the reaction of other students to the flag-clothing wearing students amounted to a " heckler’s veto" which the panel wrongly validated. Moreover, the dissent argued that this created a circuit split with the Seventh Circuit, relying on Zamecnik v. Indian Prairie School District No. 204, decided in 2011. Judge Posner's opinion in Zamecnik concluded that the students wearing the "Be Happy Not Gay" t-shirt was protected by the First Amendment (although importantly Posner did not highlight any possible violence in that case). The dissenting opinion from en banc review by O'Scannlain does not include the Sixth Circuit's Bible Believers v. Dearborn County decided less than a month ago in which the court extensively analyzed the heckler's veto doctrine and found the speech could be limited. As to the "confederate flag" cases on which the original panel relied, the dissent from en banc review by O'Scannlain distinguished situations dealing "solely with a symbol that is 'widely regarded as racist and incendiary.'”
In its amended opinion, the panel added three paragraphs that presumably address some of these concerns. The amended opinion now includes:
We recognize that, in certain contexts, limiting speech because of reactions to the speech may give rise to concerns about a “heckler’s veto.” [fn 7] But the language of Tinker and the school setting guides us here. Where speech “for any reason . . . materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” school officials may limit the speech. Tinker, 393 U.S. at 513. To require school officials to precisely identify the source of a violent threat before taking readily-available steps to quell the threat would burden officials’ ability to protect the students in their charge—a particularly salient concern in an era of rampant school violence, much of it involving guns, other weapons, or threats on the internet—and run counter to the longstanding directive that there is a distinction between “threats or acts of violence on school premises” and speech that engenders no “substantial disruption of or material interference with school activities.” Id. at 508, 514; see also id. at 509, 513.
In the school context, the crucial distinction is the nature of the speech, not the source of it. The cases do not distinguish between “substantial disruption” caused by the speaker and “substantial disruption” caused by the reactions of onlookers or a combination of circumstances. See, e.g., Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 38, 38 n. 11 (10th Cir. 2013) (observing that “Plaintiffs note that most disruptions occurred only because of wrongful behavior of third parties and that no Plaintiffs participated in these activities . . . . This argument might be effective outside the school context, but it ignores the ‘special characteristics of the school environment,’” and that the court “ha[d] not found case law holding that school officials’ ability to limit disruptive expression depends on the blameworthiness of the speaker. To the contrary, the Tinker rule is guided by a school’s need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine.” (quoting Tinker, 393 U.S. at 506)); Zamecnik, 636 F.3d at 879–80 (looking to the reactions of onlookers to determine whether the speech could be regulated); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1272 (11th Cir. 2004) (looking to the reactions of onlookers to determine whether a student’s expression “cause[d] (or [was] likely to cause) a material and substantial disruption”) (alterations and internal quotation marks omitted).
Perhaps no cases illustrate this principle more clearly than those involving displays of the Confederate flag in the school context. We respect the American flag, and know that its meaning and its history differ greatly from that of the Confederate flag. Nevertheless, the legal principle that emerges from the Confederate flag cases is that what matters is substantial disruption or a reasonable forecast of substantial disruption, taking into account either the behavior of a speaker—e.g., causing substantial disruption alongside the silent or passive wearing of an emblem—or the reactions of onlookers. Not surprisingly, these cases also arose from efforts to stem racial tension that was disruptive. Like Dariano, the reasoning in these cases is founded on Tinker. See, e.g., Hardwick, 711 F.3d at 437 (Fourth Circuit case upholding school officials’ ban on shirts with labels like “Southern Chicks,” “Dixie Angels,” and “Daddy’s Little Redneck,” and the Confederate flag icon, even though the bearer contended that hers was a “silent, peaceable display” that “even drew positive remarks from some students” and “never caused a disruption” because “school officials could reasonably forecast a disruption because of her shirts” (internal quotation marks omitted)); A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 223 (5th Cir. 2009) (noting that “[o]ther circuits, applying Tinker, have held that administrators may prohibit the display of the Confederate flag in light of racial hostility and tension at their schools”); Barr v. Lafon, 538 F.3d 554, 567–68 (6th Cir. 2008) (noting the “disruptive potential of the flag in a school where racial tension is high,” and that “[o]ur holding that the school in the circumstances of this case reasonably forecast the disruptive effect of the Confederate flag accords with precedent in our circuit as well as our sister circuits”).[fn8]
Whether these additional paragraphs are sufficient to ameliorate the concerns that might be raised in a petition for certiorari is now the question.
Tuesday, September 16, 2014
Senior Judge David Sam (C.D. Utah) ruled last week that the Religious Freedom Restoration Act prevented the court from compelling a FLDS Church member from answering questions related to a Labor Department investigation into child labor violations.
The ruling does not necessarily end the Labor Department investigation, though. Indeed, as Judge Sam wrote, DOL may be able to get the information from other sources.
The case arose when DOL sought an order compelling a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, or FLDS, to answer questions in the course of an investigation over the use of child labor in harvest activities at a pecan ranch in Hurricane, Utah. The FLDS member, Vernon Steed, invoked the First Amendment (free exercise), objecting to DOL's questions about the internal affairs of the FLDS Church. Judge Sam wrote that the claim sounded more like a Religious Freedom Restoration Act claim, and applied the higher level of scrutiny under the RFRA.
Judge Sam wrote first that a court order would substantially burden Steed's religious beliefs, because Steed said that he made a vow "not to discuss matters related to the internal affairs or organization of the [FLDS]," and that giving testimony would violate that vow. DOL challenged the sincerity of this belief, but Judge Sam, citing Hobby Lobby, didn't question it.
Judge Sam then wrote that DOL failed to satisfy the RFRA standard (again citing Hobby Lobby) because it had other ways to get the information it sought. For example, DOL could get information from the corporation or individuals who contracted to manage the ranch.
The ruling may not shut down the investigation, because DOL may, indeed, be able to get the information it needs from these other sources. But even if it can, the ruling underscores the heightened, strict scrutiny standard under the RFRA (over the lower, rational basis standard in Smith) , and illustrates its reach.
Monday, September 15, 2014
In a 25 page opinion replete with bolded underlined language, Judge Timothy Black held Ohio's statutory provisions prohibiting political false statements in Susan B. Anthony List v. Ohio Elections Commission.
Recall that the United States Supreme Court heard the case as Susan B. Anthony List v. Driehaus last Term and unanimously held that the case was ripe for review, reversing the Sixth Circuit. The Court's opinion made little mention of the substantive First Amendment arguments, although at oral argument, counsel for the anti-abortion group Susan B. Anthony List, referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia.
Judge Black refrains from an explicit Orwellian allusion, but he expresses a similar sentiment: "we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth." (bold underlining in original). However, Judge Black does resort to a phrase attributed to the character Frank Underwood in the television show House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.” (bold underlining in original).
Doctrinally, Judge Black relies on United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, noting that the four Justice plurality held that strict scrutiny should apply and concluding that the federal statute was not necessary to achieve compelling interests and that less restrictive alternatives existed.
In considering the compelling government interest prong, Judge Black distinguished McIntyre v. Ohio Elections Committee (1995), the Court held unconstitutional a state statute prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature. This "right to be anonymous" seemed to rest in part on the government interest in ensuring truthfulness, but as Judge Black writes:
However, in McIntyre, the Supreme Court did not describe the state interest in preventing false speech as “compelling” or even “substantial,” saying only that it was “legitimate” and has “special weight during election campaigns.” McIntyre expressly refrained from any decision regarding the constitutionality of Ohio’s political false-statements laws. Moreover, Defendants cite no evidence that the false statements laws are “actually necessary” to achieve their interest. To be actually necessary, there must be a direct causal link between the restriction imposed and the injury to be prevented. Id.6 Here, instead, Defendants admit that “the consequences of deceptive false statements on elections are ... inherently difficult to quantify.”
As to the narrowly tailored prong, Judge Black found that the statute chilled protected truthful speech, especially important in the political context. Judge Black again emphasizes that the remedy for false speech is true speech, even as he notes that he is not convinced that "counterspeech will always expose lies," especially "in the wake of Citizens United." Nevertheless, the problem of government-determined truth is problematical:
we certainly do not want the Government (i.e., the OEC) deciding what is political truth anyway, for fear that the Government might persecute those who criticize the Government or its leaders. Ultimately, whether or not it is possible to create a system by which impartial citizens could identify lies from the truth is unclear. What is crystal clear, however, is that Ohio’s statutes fail in this respect. The process is inherently flawed.
Judge Black issued both a preliminary and permanent injunction so that the decision is a "final, appealable Order." Whether or not Ohio officials will choose to return to the Sixth Circuit remains to be seen.