Thursday, July 30, 2015
Judge Sidney Stein (SDNY) this week denied Citizens United's motion to preliminarily enjoin the New York Attorney General from enforcing his policy of requiring registered charities to disclose the names, addresses, and total contributions of their major donors.
The ruling, which follows a similar Ninth Circuit ruling this past spring, is a blow to the organization's efforts to keep their donors secret through the 501(c) form. But it does not mean that Citizen United's donors will be available to all of us: both the IRS and the state AG refuse to disclose the names of donors.
The case tests the AG's rule that charities registered in the state provide to the state AG their Schedule B to IRS Form 990. Schedule B includes names of persons who donate over $5,000 to a charity. Citizens United, a 501(c) organization, challenged the rule, arguing that it violated free speech, and due process, among other claims, and filed for a preliminary injunction.
Judge Stein rejected the motion, saying that Citizens United was unlikely to win on the merits. As to the free speech claim, Judge Stein wrote that the AG's rule bears a substantial relation to the sufficiently important government interest in enforcing charitable solicitation laws and protecting state residents from illegitimate charities, and that the strength of the state's interest justified the minimal burden on the organization. Judge Stein also concluded that the rule was not an unconstitutional prior restraint on speech, because the rule "sets forth 'narrow, objective, and definite standards' that cabin the Attorney General's exercise of discretion.'" Finally, Judge Stein rejected Citizens United's claim that the rule came without warning and thus violated due process, because in fact the rule did nothing new. (Judge Stein also rejected the non-constitutional claims.)
But while Judge Stein's ruling rejected Citizens United's motion to stop the state AG from enforcing the rule for now, nothing in the ruling compels the public release of the organization's major donors. Indeed, the ruling hinges on the fact that New York law and IRS regs both bar the public release of Schedule B. The ruling only allows the state AG to collect this information for the purpose of ferreting out charitable fraud and related crimes.
Saturday, July 18, 2015
The Wisconsin Supreme Court ruled this week that a special prosecutor's reading of Wisconsin's campaign finance rules in the investigation into illegal coordination between "independent" organizations and Governor Scott Walker's campaign violated the First Amendment. The ruling ends the investigation into the alleged coordination. It also opens the spigot for coordinated expenditures between outside organizations and campaigns on all but express advocacy for the election or defeat of a particular candidate.
The special prosecutor alleged that that the Walker campaign coordinated with outside organizations on issue advocacy in the recall elections related to Wisconsin Act 10, the bill that sharply curtailed public sector union rights in Wisconsin. In particular, the prosecutor alleged that the coordination was so extensive that the outside organizations became subcommittees of Walker's campaign under Wisconsin law, and that the outside organizations' coordinated issue advocacy amounted to a contribution to the Walker campaign--all in violation of Wisconsin law.
But all this turned on whether the advocacy was for "political purposes." Wisconsin law defines "political purposes" as an act
done for the purpose of influencing the election or nomination for election of any individual to state or local office, for the purpose of influencing the recall from or retention in office of an individual holding a state or local office, for the purpose of payment of expenses incurred as a result of a recount at an election, or for the purpose of influencing a particular vote at a referendum. . . .
(a) Acts which are done for "political purposes" include but are not limited to:
1. The making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate or a particular vote at a referendum.
In short, the special prosecutor claimed that the coordination was for "political purposes," and therefore illegal.
The Wisconsin Supreme Court ruled that the definition of "political purposes" (and, in particular, the phrase "influencing [an] election") was unconstitutionally vague and overbroad, in that it potentially banned coordination on issue advocacy (and not just express advocacy for the election or defeat of a candidate). "The lack of clarity in [the definition], which the special prosecutor relies on, leads us to the unsettling conclusion that it is left to the government bureaucrats and/or individual prosecutors to determine how much coordination between campaign committees and independent groups is "too much" coordination." The court gave the definition a narrowing construction that limited the definition of "political purposes" to include only express advocacy for the election or defeat of a candidate (and not issue advocacy).
The opinion drew a sharp dissent, which argued that the ruling limited the state's campaign finance regulations beyond what the Supreme Court required and, in doing so, opened up a free-for-all on spending and coordination between "independent" groups and campaigns on issue advocacy.
According to the United States Court of Appeals for the Seventh Circuit, no opinion of the United States Supreme Court or a federal court of appeals has established that the First Amendment forbids regulation of, or inquiry into, coordination between a candidate's campaign committee and issue advocacy groups. In repeatedly and single-mindedly declaring a rule that federal case law has declined to adopt, the majority opinion betrays its results-oriented, agenda-driven approach.
Tuesday, July 14, 2015
The Tenth Circuit today rejected statutory and First Amendment challenges to HHS's religious accommodation to its contraception mandate under the Affordable Care Act. We most recently posted on the issue, in the Notre Dame case in the Seventh Circuit, here.
The plaintiffs in the case--Little Sisters of the Poor, Southern Nazarene, and Reaching Souls--argued that the HHS requirement that they notify their health insurance providers, third party insurers, or HHS (with a simple letter) in order to get out from under the contraception mandate violated the Religious Freedom Restoration Act, free exercise and establishment of religion, and free speech.
The Tenth Circuit rejected the claims. In a lengthy opinion that comes with its own glossary and table of contents, the court ruled that it wasn't the plaintiffs' accommodation (the notification of their objection) that triggered the provision of contraceptions; it was the law. (Judge Posner arrived at the same conclusion with more colorful language in the Notre Dame case.) Given this, there was no substantial burden on religion under RFRA. Moreover, the court said that the accommodation met rational basis review under the Free Exercise Clause, that it didn't discriminate between religions and religious organizations in violation of the Establishment Clause, and that the accommodation didn't amount to compelled speech under the First Amendment.
Tuesday, July 7, 2015
In its opinion in Arce v. Douglas, a panel of the Ninth Circuit has found that Arizona's so-called anti-ethnic studies statute suffers from constitutional infirmities.
A. A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:
1. Promote the overthrow of the United States government.
2. Promote resentment toward a race or class of people
3. Are designed primarily for pupils of a particular ethnic group.
4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.
In 2013, Judge Wallace Tashima, who was sitting by designation as district judge, ruled on the First Amendment and Fourteenth Amendment challenges to the statute, substantially upholding the statute but finding subsection (3) was unconstitutional under the First Amendment, but severable from the remainder of the statute.
Today's Ninth Circuit opinion - - - authored by New York District Judge Jed Rakoff sitting by designation, and joined in full by Judge Noonan, with a partial concurrence and dissent by Judge Richard Clifton - - - affirmed the district court’s rulings that § 15- 112(A)(3) is unconstitutional in violation of the First Amendment but severable from the rest of the statute; that §§ 15-112(A)(2) and (A)(4) are not overbroad in violation of the First Amendment; and that §§ 15-112(A)(2) and (A)(4) are not vague in violation of the Due Process Clause. However, the appellate panel found fault with the sua sponte grants of summary judgment - - - both on the equal protection claim and on a First Amendment viewpoint discrimination claim.
As to the equal protection claim, the Ninth Circuit concluded that subsections (3) and (4), while not facially discriminatory, raised constitutional issues because of evidence of their discriminatory purpose in enactment or enforcement. The Ninth Circuit remanded the issue to be considered by the district court in light of the Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) factors:
- (1) the impact of the official action and whether it bears more heavily on one race than another;
- (2) the historical background of the decision;
- (3) the specific sequence of events leading to the challenged action;
- (4) the defendant’s departures from normal procedures or substantive conclusions; and
- (5) the relevant legislative or administrative history.
The majority discussed the factors and the evidence, finding that there was sufficient evidence to raise a genuine issue of material fact. Judge Clifton dissented on the procedural posture of the remand, arguing that the district court should be able to fully consider summary judgment.
On the other remanded issue - - - the First Amendment viewpoint discrimination claim - - - the Ninth Circuit did not preclude summary judgment, noting that the district judge "did not even review the evidence" on this issue.
As to the unconstitutionality of subsection (3) as violative of the First Amendment, the Ninth Circuit affirmed the district court. Interestingly, the Ninth Circuit stated:
The very danger we perceive was corroborated, at oral argument, when we asked counsel for defendants whether the statute could be found to prohibit a public school course in San Francisco on the topic of Chinese history that was open to all students but was designed in consideration of the substantial Chinese and Chinese American student population there that might benefit from a greater understanding of its history. Defendants asserted that the course could be found in violation. As indicated by this example, subsection (A)(3) threatens to chill the teaching of ethnic studies courses that may offer great value to students— yet it does so without furthering the legitimate pedagogical purpose of reducing racism.
However, the Ninth Circuit affirmed the district court's finding that the other sections of the statute survived the First Amendment challenges rooted in curricular decisions.
Thus, on remand, the state will need to show that its so-called anti-ethnic studies statute was not actually anti-people of certain ethnic identities.
The full D.C. Circuit today upheld the federal ban on government contractor political contributions to candidates and parties. The ruling is a significant victory for campaign finance regulation, and rebuffs a direct challenge to the core of the Court's First Amendment rule on political contributions. At the same time, the case also sets up a challenge to that core for potential Supreme Court review. (We posted previously on the case here.)
The case, Wagner v. FEC, involves a narrow issue: whether the federal ban on contributions to a candidate or a political party by an individual federal contractor violates the First Amendment. The en banc D.C. Circuit unanimously said no. The court applied the familiar "lesser but still 'rigorous standard of review'" that governs restrictions on contributions, and held that the government's interests in (1) avoiding corruption and the appearance of corruption and (2) protection against interference with merit-based public administration supported the ban. The court also ruled that the ban was sufficiently well tailored, and neither unconstitutionally over-inclusive nor under-inclusive, with respect to the two government interests.
The court's lengthy opinion detailed the history of pay-to-play, government responses to the problem of contractor corruption, and current problems with corruption. The self-consciously thorough ruling appears written to insulate it as much as possible from reversal at the Supreme Court and thus underscores the importance of the case.
The plaintiffs framed the case narrowly to directly take on the current lower-level test for political contributions (as opposed to independent political expenditures), and set up a test case to overturn that portion of Buckley v. Valeo that says that government must justify restrictions on contributions at only a lower level of scrutiny under the First Amendment. While today's ruling rebuffed that effort, this is almost surely just a bump in the road for the plaintiffs on the way to the Supreme Court--and their effort to get the Court itself to disavow the lower level of scrutiny (and apply strict scrutiny to contractor contributions), or at least rule that the government's ban on contractor contributions is too sloppy to withstand a lower level of review. Either way, if the Court bites, this could represent a serious challenge to government regulation of political contributions.
Thursday, July 2, 2015
After the United States Supreme Court's opinion in Obergefell v. Hodges on June 26 declaring that states are required by the Fourteenth Amendment to issue same-sex marriage licenses, a few state officials have not only voiced objections to the decision, but have voiced resistance to complying with the Court's declaration.
The situations in Alabama and Texas have been the most contentious.
ALABAMA: Recall that earlier this year when federal District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage, the reaction of Alabama Supreme Court's controversial Chief Judge Roy Moore was an unusual letter to the Governor objecting to the federal judge's opinion on the basis that federal courts have no power in this Biblical area. This was followed by an opinion of the Alabama Supreme Court ordering judges not to issue same-sex marriage licenses. The Eleventh Circuit, and then the United States Supreme Court denied a stay of the district judge's opinion.
When the Court took certiorari in Obergefell, however, Judge Granade stayed her order.
However, after the Court decided Obergefell, the Alabama Supreme Court's "corrected order" stated that because the US Supreme Court rules allow parties 25 days to file a petition for rehearing, the parties in the case - - - including two conservative Alabama organizations - - - were invited to submit briefs on the effect of Obergefell. Federal District Judge Callie Granade issued a one-page Order on July 1, referenced her earlier stay and then stated:
The United States Supreme Court issued its ruling on June 26, 2015. Obergefell v. Hodges, 576 U.S. ____ (2015). Accordingly, by the language set forth in the [previous] order, the preliminary injunction is now in effect and binding on all members of the Defendant Class.
Thus, the officials of Alabama are subject to a direct order by a federal judge.
TEXAS: The Attorney General of Texas, Ken Paxton, who is reportedly facing criminal charges on unrelated matters, issued a six page opinion letter a few days after Obergefell which stressed the individual religious rights of county clerks and their employees, as well as justices of the peace and clergy, regarding their participation in same-sex marriages. Paxton's opinion was widely reported and concluded that county clerks retain religious freedoms that "may allow" accommodations depending "on the particular facts of each case." Paxton relied on the First Amendment as well as Texas's Religious Freedom Restoration Act (RFRA), essentially similar to the federal RFRA at issue in the Court's decision in Hobby Lobby. This is not unique: the possibility of claims by individual public employees in clerk's offices was also raised after New York passed its Marriage Equality Act in 2011 and as that act made clear - - - as is generally understood - - - that religious officers have complete discretion in agreeing or refusing to solemnize marriages.
The Fifth Circuit issued a very brief opinion on July 1, noting that "both sides now agree" that the the injunction appealed from, originally issued in early 2014 by federal district judge Orlando Garcia in DeLeon v. Perry [now Abbott], "is correct in light of Obergefell," the Fifth Circuit ruled that the preliminary injunction is affirmed.
The Fifth Circuit's opinion makes clear - - - seemingly with state agreement - - - that Texas is bound by Obergefell, but does not mention individual religious accommodations.
In both the Alabama and Texas situations, there are echoes of resistance to the Supreme Court's opinion in Brown v. Board of Education; The Supremacy Clause and the Court's opinion in Cooper v. Aaron seem to answer the question of whether state officials simply may disagree with the Court's interpretation of the Constitution. This is true despite the dissenting opinions in Obergefell itself which argued that the Court should leave the resolution of same-sex marriage to individual states. The question of religious accommodations may be a closer one, but what seems clear is that if there is indeed an individual right to be accommodated - - - again, that itself is unclear - - - it cannot be a right of a government entity. While Hobby Lobby may have held that corporations have religious freedoms, it is hard to conceive of government entities having free exercise rights in a manner that does not violate the Establishment Clause.
July 2, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)
Wednesday, July 1, 2015
Reports that Ku Klux Klan (KKK) members are considering a rally in Columbia, South Carolina to support the controversial display of the confederate battle flag evokes images of hooded persons in traditional KKK garb.
However, South Carolina, like many states, has an anti-masking statute, S.C. 16-7-110, which provides:
No person over sixteen years of age shall appear or enter upon any lane, walk, alley, street, road, public way or highway of this State or upon the public property of the State or of any municipality or county in this State while wearing a mask or other device which conceals his identity. Nor shall any such person demand entrance or admission to or enter upon the premises or into the enclosure or house of any other person while wearing a mask or device which conceals his identity. Nor shall any such person, while wearing a mask or device which conceals his identity, participate in any meeting or demonstration upon the private property of another unless he shall have first obtained the written permission of the owner and the occupant of such property.
As I've discussed in Dressing Constitutionally, such statutes, sometimes known as anti-KKK statutes, have been upheld against First Amendment challenges.
For example, the similar Georgia statute, passed in 1951 and still in force, makes it a misdemeanor for any person who “wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer” and is either on public property or private property without permission. In 1990, the Georgia Supreme Court in State v. Miller, 260 Ga. 669, 674, 398 S.E.2d 547, 552 (1990) upheld the statute against a First Amendment challenge by Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute itself. In addressing Miller’s argument that the statute was overbroad, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK. Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”
New York's anti-masking statute, which was not originally prompted by KKK activities but by land revolts before the Civil War, was also upheld against a challenge by the KKK. In 2004, the Second Circuit panel - - - including now United States Supreme Court Justice Sotomayor - - -decided Church of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 201 (2d Cir. 2004). The KKK group had sought an injunction against the statute to allow a demonstration while wearing masks. Rejecting the First Amendment claim, the court agreed that the KKK regalia - - - the robe, hood, and mask - - - met the threshold requirement for expressive speech, but nevertheless separated the mask in its analysis. In the court’s view, the mask was “redundant” and did “not convey a message independently of the robe and hood.” Moreover, the court opined that mask-wearing was not integral to the expression, but optional even amongst KKK members. Thus, while the KKK members had a First Amendment right to march, they did not have a First Amendment right to do so wearing their masks.
Should KKK members attempt to demonstrate while wearing their "regalia" that includes hoods that obscures their faces, the South Carolina masking statute - - - and its constitutionality - - - are sure to be in play.
July 1, 2015 in Association, Criminal Procedure, Current Affairs, Federalism, First Amendment, Fundamental Rights, History, Interpretation, Race, Reconstruction Era Amendments, Speech, Theory | Permalink | Comments (0)
Tuesday, June 30, 2015
Oklahoma Supreme Court Declares Ten Commandments Monument at State Capitol Unconstitutional Under State Constitution
In a relatively brief opinion today in Prescott v. Oklahoma Capitol Preservation Commission, Oklahoma's highest court found that a Ten Commandments monument on the Oklahoma Capitol grounds violated the state constitution, Article 2, Section 5, which provides:
No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.
While the monument was a gift and no public funds were expended to acquire the monument, the court agreed that its placement on the Capitol grounds constituted the use of public property for the benefit of religion, emphasizing that the constitutional provision included the words “directly or indirectly.”
The court noted that the Legislature and Governor authorized the monument relying on the United States Supreme Court’s decision Van Orden v. Perry (2005), but noted that Van Orden was decided under the First Amendment’s Establishment Clause. Here, the Oklahoma Supreme Court interpreted the broader and more precise language of the Oklahoma state constitution. The Oklahoma Supreme Court’s opinion contained the requisite language insulating it from United States Supreme Court review under the adequate and independent state grounds doctrine so important to federalism:
“Our opinion rests solely on the Oklahoma Constitution with no regard for federal jurisprudence. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).”
Two justices dissented, without opinion.
The Supreme Court today agreed to hear Friedrichs v. Cal. Teachers Association, and certified the first question as "Should Abood be overruled?" The case is just the latest foray into the First Amendment challenges to union fair share dues requirements. The Court has been chipping away at this in its last few rulings. This case will likely mean the end of union fair share requirements under the First Amendment.
We've posted a lot on this issue (search the blog for "Abood"), most recently here.
Friday, June 26, 2015
In a closely-divided opinion, with the majority written by Justice Kennedy, the Court has decided that the Fourteenth Amendment requires states to license same-sex marriages in Obergefell v. Hodges. The opinion rests on both due process and equal protection grounds. The majority opinion joined by Ginsburg, Breyer, Sotomayor, and Kagan - - - there are no concurring opinions - - - is less than 30 pages, plus 2 appendices including the citations of same-sex marriage opinions. Each of the four dissenting Justices - - - Chief Justice Roberts and Justices Scalia, Thomas, and Alito - - - wrote a separate dissenting opinion, with some joinders by other Justices.
The decision that the Fourteenth Amendment requires states to license same-sex marriages renders the second certified question regarding recognition irrelevant, as the discussion during oral arguments made clear.
Recall that the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans. There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.
[image Donkey Hotey]
On the due process issue, Kennedy's opinion for the Court concludes that the right to marry is fundamental because:
- the right to personal choice regarding marriage is inherent in the concept of individual autonomy, relying on Loving and Lawrence;
- it supports a two-person union unlike any other in its importance to the committed individuals, relying on Grsiwold, Rurner v. Safely, and Lawrence;
- to safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education, relying on Pierce v. Society of Sisters and Windsor;
- Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order, relying on Maynard v. Hill (1888).
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same- sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Thursday, June 18, 2015
A unanimous Court, albeit with separate opinions, concluded that the extensive municipal signage regulations violated the First Amendment in Reed v. Town of Gilbert.
Recall from oral arguments that the town's regulations generally required 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.” Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town regulation as content neutral.
Reversing the Ninth Circuit, Justice Thomas, writing for the Court, concluded that the Sign Code was content-based and did not survive strict scrutiny. The Sign Code provision is content-based because, simply put, to determine if a sign is a "Temporary Directional Sign" one must determine whether the sign "conveys the message of directing the public" to an event. It does not matter, Thomas writes for the Court, that the content may seem neutral:
A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. *** In other words, an innocuous justification cannot transform a facially content- based law into one that is content neutral.
Once the Court decided there the regulation was subject to strict scrutiny, there was little doubt that the town would not be able to satisfy the standard. Thomas assumed that the proffered governments interests of aesthetics and traffic safety were compelling, but quickly determined that that the manner in which they were being served was far from narrowly tailored. Instead, the regulations were "hopelessly underinclusive."
The concurring opinions take on the issue raised in oral argument about the constitutionality of any town's attempt to regulate signage. Justice Kagan's concurring opinion, joined by Justice Ginsburg and by Breyer (who also has a separate concurring opinion) - - - but not by Justice Alito, who has his own brief concurrence, joined by Kennedy and Sotomayor (who also join the Thomas's opinion for the Court)- - - argues that strict scrutiny is not appropriate for all sign ordinances. Kagan states:
Although the majority insists that applying strict scrutiny to all such ordinances is “essential” to protecting First Amendment freedoms, I find it challenging to understand why that is so. This Court’s decisions articulate two important and related reasons for subjecting content-based speech regulations to the most exacting standard of review. The first is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley. The second is to ensure that the government has not regulated speech “based on hostility—or favoritism— towards the underlying message expressed.” R. A. V. v. St. Paul (1992). Yet the subject-matter exemptions included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install a light bulb over “name and address” signs but no others does not distort the marketplace of ideas. Nor does that different treatment give rise to an inference of impermissible government motive.
She instead argues that the "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive." But it was evident that even the concurring Justices did not view the Town of Gilbert's signage regulations as entirely reasonable.
Court Decides Specialty License Plate is Government Speech in Sons of Confederate Veterans License Plate
In a closely - - - and interestingly - - - divided opinion today in Walker v. Texas Sons of Confederate Veterans, the Court's majority decided that Texas's specialty license plate program is government speech and therefore rejected the First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.
Justice Breyer delivered the Court's opinion, joined by four Justices, Ginsburg, Sotomayor, Kagan, and - - - Thomas. The dissenting opinion by Justice Alito was joined by Chief Justice Roberts, Scalia, and Kennedy. And while Justice Breyer has become known for his appendices, this opinion has a simple one: the image of the rejected Sons of Confederate Veterans plate. Meanwhile, Alito's dissenting opinion has a more extensive appendix; it includes the images of 58 specialty plates that Texas has approved.
As was evident in the oral arguments, and is frequently the case in First Amendment speech controversies, there was a definite choice of doctrine at stake. Recall that the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination. The Court today not only rejected that view, but it rejected the applicability of any forum analysis. Instead, the Court applied the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) finding that there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas. This was raised at numerous points in the oral arguments and echoes the opinion of Judge Jerry Smith who had dissented in the Fifth Circuit's divided opinion. Breyer did note that there were some aspects of Summum that were not exactly parallel, such as the permanence of the monuments in Summun, the opinion states that this was important because the public parks in Summun are traditional public forums, which is not the case for license plates.
And as for that other and most famous license plate case, Wooley v. Maynard (1977), the Court's majority opinion distinguished Walker because "compelled private speech is not at issue." And indeed, if there is any compulsion of conveying ideological messages to be protected against here, it is that of the state being compelled to "include a Confederate battle flag on its specialty license plates."
Justice Alito's dissenting opinion has at its base a common-sense disagreement. Noting the proliferation of specialty plates, supported by his Appendix, he asks:
As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?
Thus, he argues that what Texas has done by selling space on its license plates is to create a "limited public forum."
Walker v. Sons of Confederate Veterans could have wide-ranging effect. Does it give unfettered discretion to governments to decide license plate matters given that it is now government speech? Consider that the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; that the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; and that a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
Sunday, June 14, 2015
Reversing the district judge, a panel opinion of the Sixth Circuit in Smith v. Jefferson County Board of School Commissioners found that there was no Establishment Clause violation when a Tennessee public school board contracted with a "religious institution," Kingswood Schools, Inc., to provide "alternative-school" services for students suspended or expelled from their "ordinary schools." The county school board entered into the contract because of a funding shortfall and over seven years paid Kingswood, 1.7 million dollars; the arrangement ended when the county resumed providing alternative-school services.
The majority's opinion by Judge Julia Smith Gibbons, coupled with a separate concurring opinion by Judge Alice Batchelder, illustrates the disarray of Establishment Clause doctrine. Yet both the majority and concurring opinion settle on the "endorsement test" and find it is not satisfied. Specifically, the majority considered the "voluntary assemblies" as well as whether the "Biblical quotes on the report cards, family-feedback forms and—for those who sought them out—the annual report and school- improvement plan" constituted endorsement. As the majority described:
Students were required to submit a weekly family-feedback form—signed by their parents—in order to advance within the day program. That form contained the following quote from the Gospel of Luke: “Jesus . . . said, Suffer little children to come unto me, and forbid them not: for of such is the kingdom of God.” Parents were also required to sign report cards, which contained the same Biblical text. Kingswood’s director testified that the scripture—from the Gospel of Luke—could be interpreted as an invitation into the kingdom of God. The same passage appeared, accompanied by crosses, on the school’s Easter 2006 letter. The letter claimed: “Kingswood School is unique because we offer children a Christian environment of love and encouragement. . . . Kingswood remains one of the few places where children in need can get help in a Christian environment. We are a non-profit faith based ministry . . . .”
Those who sought out the 2005 Annual Report saw that it contains a picture of the chapel and says that each child will receive Christian religious training, and that emphasis is placed upon “instilling in each child a personal faith in God, and the assurance of the saving grace of Jesus Christ.” The “school improvement plan,” completed before the Jefferson County contract and still in effect afterward, stated the belief that schools must provide for “spiritual growth” in order to serve the “‘whole’ student.”
The Kingswood website also contained some religious references. It claimed, for example, that “Kingswood has survived independently by remaining true in faith to the principles of a Christian education without being bound to the doctrine of a particular denomination or sect’s control.” It states that the school will take care of a child’s “spiritual and religious life,” although it will not compel a student to adopt any particular religious doctrine. The website refers to Kingswood as a “Christian charity,” and explains its “Methodist-rooted beginnings.” It says that the school “has observed a Christian approach that has remained inter- faithed and unaffiliated with a particular Christian denomination.”
In its analysis, the court characterizes the Christian language as "de minimus" and concludes that a "reasonable observer would view all of these in the specific context of the arrangement that Kingswood had with Jefferson County." The arrangement saved taxpayer money and the court found it noteworthy that no parents or students complained. Instead, it reiterates that the complaint was by teachers of the public school who were terminated. The complaint was originally dismissed for lack of standing; the Sixth Circuit reversed en banc in 2011. The concurring opinion goes further and calls the case an "employment-contract dispute masquerading as an Establishment Clause case."
Yet the Establishment Clause disarray is not attributable to the procedural posture or the application of the so-called "endorsement test," but to questions about the test to be applied. According to the majority, there are "three main jurisprudential threads": the Lemon test; the endorsement test as a refinement of Lemon; and the "historical practice" test as articulated in Town of Greece v. Galloway, the closely-divided 2014 decision by the United States Supreme Court upholding a town council's prayer. The majority finds the historical practice test inapposite, but the concurrence argues for its application.
Interestingly, the court majority distinguishes Doe v. Elmbrook School District, in which the Seventh Circuit en banc found that an Establishment Clause violation existed when the school held graduation ceremonies in a church. The United States Supreme Court denied certiorari in Elmbrook, over a dissent by Justice Scalia (joined by Justice Thomas), arguing that the lower court's opinion is "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway. In her concurrence, Judge Batchelder essentially agrees with Justice Scalia. Judge Batchelder asks whether the school board's "contract would be historically acceptable to the Framers," seemingly assumes that it would be, and then would engage in a "fact-sensitive" inquiry regarding coercion. Judge Batchelder characterizes the biblical references as "innocuous," so presumably she would not find them coercive.
Yet bible verses on mandatory student correspondence that must be signed by parents on a weekly basis does seem to raise the specter of coercion - - - even if no parents or students of the "alternative-school" complained.
Monday, June 1, 2015
In its highly-anticipated opinion in Elonis v. United States seemingly involving the First Amendment protections for threatening language posted on Facebook, the Court deflected the constitutional issue in favor of statutory interpretation.
Recall that while the question presented in the certiorari petition focused on the First Amendment and pointed to a split in the circuits regarding an application of Virginia v. Black, 538 U.S. 343 (2003) to a conviction of threatening another person: did it require proof of the defendant’s subjective intent to threaten or whether it is enough to show that a “reasonable person” would regard the statement as threatening. However, the Court's Order granting certiorari instructed:
In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."
And at oral argument, much of the discussion delved into common law and Model Penal Code doctrine, even as these were intertwined with First Amendment considerations.
Today's opinion, authored by Chief Justice Roberts, disentangles the First Amendment from the analysis. It concludes that as a matter of statutory interpretation, the instructions to the jury that guilt could be predicated on a "reasonable person" standard merited reversal.
Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”
However, whether or not that mental state could include "recklessness" was not decided by the Court. Chief Justice Roberts's opinion for the seven Justice majority, specifically disagreed with Justices Alito and Thomas, who each wrote separately, regarding the suitability of reaching the "recklessness" issue. Roberts wrote:
In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it.
Moreover, although the Court may be “capable of deciding the recklessness issue,” (quoting the opinion of ALITO, J.), Roberts wrote that "following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly."
Here is the Court's First Amendment "discussion":
Given our disposition, it is not necessary to consider any First Amendment issues.
Justice Alito would reach the First Amendment issue and hold that a recklessness standard would comport with the First Amendment. Justice Thomas, dissenting, would affirm the Third Circuit's "general intent" standard and hold that Elonis' statements were "true threats" unprotected by the First Amendment.
Interestingly, Chief Justice Roberts's opinion does include extensive quotes from the postings, including Mr. Elonis's reference to "true threat jurisprudence." It does not, however, include some of the more problematical sexual language.
Wednesday, May 27, 2015
In its divided opinion in Children First Foundation v. Fiala, the Second Circuit held that the Commissioner of Motor Vehicle's rejection of "Choose Life" license plates for the state's specialty plate program is constitutional. Judge Pooler, joined by Judge Hall, reversed the district judge's conclusion that the rejection violated the First Amendment.
The Second Circuit's divided opinion enters the fray of what might be called the developing doctrine of license plates, be they state-mandated, vanity, or as here, "specialty" plates issued by the state as a means of raising revenue. As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
The progenitor of this doctrine is the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech. This Term the Court heard oral arguments in Walker v. Texas Sons of Confederate Veterans; a divided Fifth Circuit had held that the rejection of the Sons of Confederate Veterans plate (featuring the Confederate flag) was a violation of the First Amendment as impermissible content and viewpoint discrimination. The Second Circuit stayed the mandate of its decision pending the outcome of Walker.
The specialty license plate litigation involves the intersection of a number of First Amendment doctrines. As Judge Pooler's opinion in Children First Foundation expressed its holding:
We conclude that the content of New York’s custom license plates constitutes private speech [rather than government speech] and that the plates themselves are a nonpublic forum. CFF’s facial challenge fails because New York’s custom plate program did not impermissibly vest the DMV Commissioner with unbridled discretion in approving custom plate designs. Furthermore, that program, as applied in this case, was reasonable and viewpoint neutral, which is all that the First Amendment requires of restrictions on expression in a nonpublic forum.
Judge Pooler's well-structured opinion supports this conclusion. First, the court considers whether the license plate is government speech or private speech. If the speech is government speech, then the First Amendment has little application. (Recall that this was the position of the dissenting judge in the Fifth Circuit's decision in Sons of Confederate Veterans). Agreeing with other circuits, the court reasons that an application of Pleasant Grove City, Utah v. Summum (2009) and Johanns v. Livestock Marketing Ass’n (2005) leads to " little difficulty concluding that such an observer would know that motorists affirmatively request specialty plates and choose to display those plates on their vehicles, which constitute private property."
bringing to justice individuals who have attacked police officers cannot reasonably compare—either by its very nature or by the level of contentiousness that surrounds it—to the issue of abortion. With respect to the decision to issue a “Union Yes” plate, while the myriad issues pertaining to organized labor in the United States are social and political in nature, there is no basis to conclude that the Department failed to apply the policy against creating plates that touch upon contentious political issues as opposed to having applied the policy and merely reaching a different result than it did with the “Choose Life” plate.
May 27, 2015 in Abortion, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Reproductive Rights, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 26, 2015
The United States Supreme Court granted certiorari today in Foster v. Humphrey to the Georgia Supreme Court denying post-conviction relief.
According to the petition, in 1987, an all-white jury convicted Timothy Tyrone Foster, a "poor, black, intellectually compromised eighteen year old" of the murder of an elderly white woman. At trial, one black potential juror was removed for cause, and the prosecutors removed all four of the remaining black prospective jurors by peremptory strike, and proffered race-neutral reasons when defense counsel raised a challenge under the then-recent case of Batson v. Kentucky (1986). The judge rejected defense counsel's argument that the race-neutral reasons were pretexual and denied the Batson challenge. The Georgia courts affirmed.
Almost twenty years later, pursuant to a request under the state open records act, Foster gained access to the prosecution team's jury selection notes, which included highlighting the black potential jurors (image at right), circling the word "black" as an answer to the race question on the juror questionnaire, identifying the black potential jurors as B#1, B#2, and B#3 in the notes, and a draft affidavit by the prosecution investigator stating "“if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.” (The affidavit was originally submitted to the court with all mentions of race excised).
In the post-conviction proceeding, the court held that "[t]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists." The Georgia Supreme Court declined review.
In granting certiorari, the United States Supreme Court could certainly agree with the Georgia courts and simply affirm. Assuming the Court granted certiorari because of some disagreement with the conclusions, the Court might take a broader approach. According to the petition in Foster, the prosecution "proffered a combined forty reasons for striking" the four black potential jurors. Because there are almost always "neutral" reasons for exercising a peremptory challenge - - - given that it can be based on essentially a "hunch" - - - proving racial motivation and discrimination can be difficult. The Court has the opportunity to revisit Batson and the problem of distinguishing between race-neutral and pretextual reasons, perhaps providing a more workable and fair rule.
May 26, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Federalism, First Amendment, Fundamental Rights, Habeas Corpus, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, May 18, 2015
In its opinion in Lash v. Lemke, the Court of Appeals for the District of Columbia Circuit affirmed the grant of a summary judgment in favor of law enforcement officers in a suit filed by an Occupy D.C. protestor for a violation of Fourth and First Amendment rights.
Judge Griffith, writing for the court, and joined by Chief Judge Garland and Judge Kavanaugh, described the arrest of Ryan Lash at the Occupy DC encampment in January 2012 by United States Park Police Officers Tiffany Reed, Frank Hilscher, and Jennifer Lemke:
Officer Tiffany Reed, who had been following Lash as he hurried through the tents, stepped up behind Lash and seized his arms from the rear. Lash pulled his arms away and held them in front of his body, continuing to walk away as he insisted that he was innocent. Reed again sought to restrain Lash from behind and Lash again pulled his arms away from her. Reed then took hold of Lash’s left arm while Hilsher approached and seized his right arm. Lemke approached at the same time and drew her Taser from its holster, holding it ready.
Though Lash’s arms were now held by two different officers, he continued to struggle to keep his feet while Reed and Hilsher worked for several moments to gain control of him. Lemke, standing nearby and behind the trio, fired her Taser into Lash’s lower back. He fell to the ground, and the officers handcuffed him.
Lash argued that Lemke’s use of the Taser constituted excessive force in violation of Lash’s Fourth Amendment rights and was motivated by retaliatory animus against his protected expression in violation of his First Amendment rights. The defendant officers raised qualified immunity and the district judge granted summary judgment in their favor.
Relying on Ashcroft v. al- Kidd (2011), the DC Circuit Court of Appeals concluded that the "claimed right, whether it exists or not, is by no means 'clearly established.'" In so doing, however, the court acknowledged that this inquiry cannot be abstract, but must occur "in the specific context of the case." This "context," the court further acknowledged, depended on whether Lash was "resisting arrest."
This would seemingly make summary judgment - - - requiring no genuine disputes of material fact - - - difficult, but the court interestingly relied on multiple video-recordings of the "episode" which rendered Lash's description a "visible fiction."
Here is one of the videos of the incident:
The court further rejected Lash's arguments regarding the video as conclusive:
Lash argues that we may not rely on the videorecordings in this way because they “cannot fully convey everything that people at the scene felt” such as “how much force one person is exerting” or “the level of detail a person will experience in the moment.” This is no argument at all. The Supreme Court has explained that we determine whether a right is clearly established based on the “objective legal reasonableness of an official’s acts,” protecting officers from liability unless “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Subjective factors like those Lash identifies here cannot shed any light on whether a reasonable officer in these circumstances would have believed her actions violated Lash’s clearly established rights. It is that objective test, not Lash’s knowledge or Lemke’s thoughts, that determines the scope of qualified immunity. The videorecordings in the record provide us all we need to determine what a reasonable officer would have known at the scene. And we do not hesitate to conclude from the videorecording that there is “no genuine issue of material fact” regarding Lash’s active resistance.
Given the increased use of videorecordings in cases against police officers, the court's discussion of 'what the video shows' might be expected to be used in other cases.
Here, however, the court concludes that Lash was "actively resisting arrest," and thus there was no clearly established right not be subject to a Taser.
As to the First Amendment claim, the court quickly found that Lash did not show the officer had "retaliatory animus."
Monday, May 11, 2015
In its opinion in United States v. Pierce, the Second Circuit considered the arguments of co-defendant/appellant Melvin Colon regarding the admissibility of a rap video and images of tattoos in the criminal trial. The unanimous opinion, authored by Judge Denny Chin, affirmed the convictions of Colon and his co-defendants for conspiracy, racketeering, murder, narcotics trafficking, and firearms offenses largely related to their activities as members of a "violent street gang, dubbed the Courtlandt Avenue Crew (ʺCACʺ) by the government," as well as a gang known as Godʹs Favorite Children, or ʺGFC.ʺ
Colon contended that his First Amendment rights were violated when the district court permitted the government to present as evidence a rap video and images of his tattoos, some of which he had posted to his Facebook page. The "rap video" portrayed Colon as rapping: ʺYG to OG / Somebody make somebody nose bleed/ Iʹm OG shoot the Ruger / Iʹm a shooter.ʺ A witness, also seen in the video, testified for the prosecution that the Young Gunnaz crew, or YG, was feuding with the OG (formerly the GFC). The images of the tattoos introduced at trial were explained by the Second Circuit as including:
a close‐up of Colonʹs hand, showing his ʺY.G.K.ʺ tattoo, which stands for ʺYoung Gunnaz Killer.ʺ In some of the photographs Colon is pointing a gun at his Y.G.K. tattoo, indicating, according to the government, his desire to harm members of the Young Gunnaz. Other tattoos depicted in the photographs introduced at trial included one on his right arm that read ʺCourtlandtʺ; tattoos on his left arm that referenced [co-defendant] Meregildoʹs nicknames (ʺYoungʺ and ʺKillaʺ); and one stating ʺM.I.P. [Mac In Peace] T‐Money,ʺ referring to Harrison, the former leader of CAC.
The Second Circuit panel rejected the First Amendment challenges to the introduction of the evidence. First, the court noted that the conviction did not rest on the expression: "here, the speech is not 'itself the proscribed conduct,'" interestingly citing United States v. Caronia, the 2012 Second Circuit case reversing a conviction for promoting the off-label use of prescription drugs. Additionally, the Second Circuit considered Colon's argument that the rap lyrics were merely "fictional artistic expressions," and discussed the New Jersey Supreme Court decision last year in State v. Skinner, noting that the court there observed that ʺ[o]ne would not presume that Bob Marley, who wrote the well‐known song ʹI Shot the Sheriff,ʹ actually shot a sheriff.ʺ However, the Second Circuit distinguished Skinner in which the court reversed the conviction (although not explicitly on the basis of the First Amendment), by concluding that here the rap lyrics and tattoos were properly admitted, because they were relevant and their probative value was not substantially outweighed by the danger of unfair prejudice. Specifically - - - if cursorily - - - the Second Circuit reasoned:
The government proffered the rap video to show Colonʹs animosity toward the Young Gunnaz, as well as his association with CAC. The government similarly offered the tattoo evidence to help establish his motive for violence against the Young Gunnaz, and to show his loyalty to Harrison and Meregildo ‐‐ indeed other members of CAC had similar tattoos. Hence, the rap video and tattoos were relevant, their probative value was not outweighed by the danger of unfair prejudice, and Colonʹs First Amendment rights were not implicated when the district court admitted the evidence from his social media account.
As in other cases raising First Amendment challenges to the introduction of expressive evidence, the First Amendment issues are subsumed into the evidentiary one.
Colon also challenged a portion of the Stored Communications Act (SCA), 18 U.S.C. § 2703(c)(1), regarding the subpoenaing of Facebook for page content. Appellant Colon, however, is not challenging the Government's acquisition of his own Facebook content, however, but argued that SCA's prohibition of his subpoena of Facebook content from a witness, denied him his Fifth Amendment due process right to present evidence and his Sixth Amendment right to confront adverse witnesses. Colon managed to obtain some of the Facebook postings through the work of a private investigator and his attorney used it in cross-examination and introduced portions of it. The Second Circuit declined to reach the constitutional question, given that "Colon possessed the very contents he claims the SCA prevented him from obtaining, and his suggestion that there could have been additional relevant exculpatory material in the Parsons Account is purely speculative."
The court's opinion resolves the issues before it (including a sentencing issue which earned a remand), but does little to elucidate the important First Amendment concerns that remain regarding the admissibility of rap lyrics and tattoos in criminal trials.
Thursday, May 7, 2015
District Judge Rejects Challenges to Requirement that Government Contractors Post Employee Rights Notice
In an opinion today in National Association of Manufacturers (NAM) v. Perez, Judge Amit Mehta of the District of Columbia District Court rejected various challenges to the Department of Labor's so-called "Posting Rule," a regulation requiring, as a condition of nearly all federal contracts, that contractors post workplace notices informing their employees of their rights under the National Labor Relations Act. The "Posting Rule" is derived from President Obama's Executive Order 13496, promulgated in January 2009 pursuant to the Procurement Act.
The central constitutional challenge is that the "Posting Rule" is compelled speech and violates the First Amendment as an unconstitutional condition. The court's first task was to determine the relevance of a NAM v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), overruled in part by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014). The judge concluded that while the posting at issue in NAM was "nearly identical," that case was not a First Amendment one - - - although it drew on some First Amendment principles - - - but an interpretation of §8(c) of the NLRA which prohibits the expression of views, argument, or opinions as constituting an unfair labor practice.
Instead, the challenge here was analogous to the Supreme Court's decision in Rumsfeld v. FAIR involving the Solomon Amendment directed at law schools.
There is little material distinction between FAIR and this case. The facts differ, but the First Amendment analysis and outcome are the same. Like the Solomon Amendment, the Posting Rule is a “far cry” from the government-mandated speech deemed unconstitutional in Barnette and Wooley. Requiring an employer to post government speech about labor rights is “simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”
Moreover, the Posting Rule does not require a contractor to speak at all. Rather, the contractor is required to host government speech as a condition of receipt of a federal contract. That, of course, presents a contractor with a choice—agree to post the Notice or forgo federal contracting. But that choice is no different than the one presented by the Solomon Amendment— either accommodate a military recruiter or forgo federal funds.
Additionally, the Posting Rule does not interfere with the contractor’s ability to convey a different message. A contractor can still express its own views or engage in lawful activities to discourage unionization. Indeed, nothing in the rule prevents a contractor from creating its own posting and placing it next to the Department of Labor-drafted Notice, so as to make clear that the Notice does not reflect the contractor’s own views and its display is government mandated. *** A contractor’s speech is thus not “affected by the speech it [is] forced to accommodate.”
Nor are employees likely to believe that the Notice is their employer’s speech.
[citations omitted]. The court rejected NAM's attempt to distinguish FAIR because the speech here is a “slanted list of rights that unfairly promotes unionization while pointedly omitting a host of other critical employee rights,” noting even if the court could determine the meaning of "slanted," it is well settled that the government may make content-based choices about its own speech.
The court rejected NAM's arguments regarding preemption, as well as its statutory and administrative law arguments. It therefore entered summary judgment in favor of the government.Given the vigor with which NAM has litigated similar issues, it will most likely appeal. However, recently appointed Judge Mehta has authored a closely reasoned opinion that should withstand review.
In its lengthy, well-reasoned, and unanimous opinion in American Civil Liberties Union (ACLU) v. Clapper, the Second Circuit today concluded that NSA's bulk telephony metadata collection is not authorized by §215 of the PATRIOT Act, 50 USC §1861(b)(2)(A). After hearing oral arguments last September, the panel reversed the district court's opinion that had rejected both the statutory and constitutional challenges to the scheme. Recall that this widespread collection has been controversial since the program was first revealed through information obtained by Edward Snowden; we've additionally discussed the issues here, here, and here.
The Second Circuit, in the opinion authored by Gerard Lynch, did agree with the district judge that the ACLU plaintiffs had standing to challenge the collection of call records. The court stated that "the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program." The court rejected the government's contention that any alleged injuries depend on the government's reviewing the information collected rather than simply collecting it: the collection is [challenged as] a seizure and the Fourth Amendment prohibits both searches and seizures. The court distinguished Amnesty International v. Clapper in which the United States Supreme Court's closely divided opinion concluded that the alleged standing was based on a "speculative chain of possibilities." Instead:
appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.
The panel likewise held that the ACLU organizations have standing to assert a First Amendment violation regarding its own and its members' rights of association.
However, the court did not rule on the Fourth and First Amendment claims explicitly, although its conclusion regarding §215 occurs in the shadow of the constitutional issues, or as the court phrases it: "The seriousness of the constitutional concerns" has "some bearing on what we hold today, and on the consequences of that holding."
What the court does hold is that "the telephone metadata program exceeds the scope of what Congress has authorized and there violates §215." After a discussion of the program and §215, it first considers the government's arguments that the judiciary is precluded from considering the issue. The court interestingly observes that judicial preclusion here would "fly in the face of the doctrine of constitutional avoidance."
[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.
The court likewise held that there was no implicit preclusion.
On the merits of the §215 challenge, the court essentially found that the government's interpretation of "relevant" was too broad. The court noted that both parties relied on the grand jury analogy, supported by the statute's language and legislative history. Yet for the court, the government's argument faltered on this very ground:
Moreover, the court relies on the Privacy and Civil Liberties Oversight Board (PLCOB) Report regarding the overbreadth, noting that "counterterrorism in general" is not sufficiently narrow. Further, the court states that the government's interpretation reads the "investigation" language of §215 out of the statute, and even more specifically, §215's language "relevant to an authorized investigation (other than a threat assessment)."
Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.
May 7, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)