Tuesday, February 3, 2015
The Supreme Court of Canada ruled last week that the Saskatchewan Public Service Essential Services Act (PSESA), which limited the ability of public sector employees who perform essential services to strike, violated the Canadian Charter of Rights and Freedoms. At the same time, the court upheld an act that increased the level of required written support, and reduced the time period for receiving support, to certify a union.
In striking the PSESA, the court held that the Canadian Charter of Rights and Freedoms, Section 2(d), free association, protects a fundamental right to strike, and that the PSESA wasn't saved by Section 1, the "reasonable limits" provision. The court wrote that the right to strike is "an indispensable component of" the right to bargain collectively, and "essential to realizing" the values of "human dignity, equality, liberty, and respect for the autonomy of the person and the enhancement of democracy." The court also noted that "international obligations also mandate protecting the right to strike . . . ."
The court said that the breach of Section 2(d) wasn't justified by Section 1, which "guarantees the rights and freedoms set out in [the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The court wrote that the maintenance of essential public services is obviously "pressing and substantial," but that the PSESA wasn't sufficiently tailored. In particular, the court said that the PSESA allows too much given in defining "essential services" and the employees who perform them.
Two justices dissented, arguing that the political branches should have the flexibility to determine the scope of workers' ability to strike.
Monday, February 2, 2015
The D.C. Circuit on Friday affirmed an FTC order that required POM Wonderful, LLC, to support future ads with claims of health benefits with one scientific study. But at the same time, the court said that a Commission order requiring two studies went too far.
The case, POM Wonderful, LLC v. FTC, arose out of a Commission finding that POM Wonderful engaged in false, misleading, and unsubstantiated representations in its advertisements in violation of the FTC Act. In particular, the Commission found that POM Wonderful made unsubstantiated claims that regular consumption of POM products could treat, prevent, or reduce the risk of various ailments, including heart disease, prostate cancer, and erectile dysfunction.
The full Commission voted to hold POM Wonderful and associated parties liable for violating the FTC Act and order them to stop making misleading and inadequately supported health claims. The Commission's order also barred POM Wonderful from running future ads asserting that its products treat or prevent any disease unless it has at least two randomized, controlled human clinical trials demonstrating statistically significant results.
The D.C. Circuit ruled that POM Wonderful's ads weren't protected by the First Amendment (because they were false or misleading), and that the Commission therefore had authority to punish or prohibit them. The court also said that the First Amendment allowed the Commission to require one scientific study to support any future health-benefit claims:
Requiring RCT substantiation as a forward-looking remedy is perfectly commensurate with the Commission's assessment of liability for petitioners' past conduct: if past claims were deceptive in the absence of RCT substantiation, requiring RCTs for future claims is tightly tethered to the goal of preventing deception. To be sure, the liability determination concerned claims about three specific diseases whereas the remedial order encompasses claims about any disease. But that broadened scope is justified by petitioners' demonstrated propensity to make deceptive representations about the health benefits of their products, and also by the expert testimony supporting the necessity of RCTs to establish causation for disease-related claims generally. For purposes of Central Hudson scrutiny, then, the injunctive order's requirement of some RCT substantiation for disease claims directly advances, and is not more extensive than necessary to serve, the interest in preventing misleading commercial speech.
But the court rejected the order for two studies. That's because the Commission failed "adequately to justify a categorical floor of two RCTs for any and all disease claims."
The court rejected POM Wonderful's related statutory claims.
Thursday, January 29, 2015
Recall our discussion last August about the decision of the University of Illinois at Urbana-Champaign officials to rescind the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin based on his "tweets" on the subject of Gaza.
Salaita has now filed a 39 page complaint in federal court. The first count of the complaint alleges the First Amendment violation:
In sending "tweets" regarding Israel and Palestine, from his personal Twitter account from his home in Virginia in the summer of 2014, Plaintiff acted in his capacity as a citizen, and not pursuant to any official university duties. His tweets never impeded his performance of his duties as a faculty member, or the regular operation of the University. The subject matter of the tweets-Israel and Palestine-is a matter of public concern, and Professor Salaita's comments about the conflict were made in an effort to contribute to the public debate. Such conduct is protected by the First Amendment of the United States Constitution.
Plaintiff’s protected speech, and the viewpoint he expressed in those tweets, though greatly distorted and misconstrued by Defendants, was a motivating factor in defendant's decision not to recommend Professor Salaita’s appointment in the rejection of Professor Salaita 's appointment to the University faculty.
The second count alleges a procedural due process violation. Most of the other counts allege state law violations including promissory estoppel, breach of contract, intentional infliction of emotional distress, and an interesting "spoilation of evidence" against Chancellor Phyllis Wise for allegedly destroying a two page document given to her by a donor.
ConLawProfs teaching First Amendment this summer might find the complaint makes for a good in-class discussion or problem.
Monday, January 26, 2015
The Brennan Center's Daniel Weiner recently released Citizens United Five Years Later, the Center's latest in an outstanding series of reports on Citizens United, campaign spending, and the 2014 elections.
Weiner writes that the case's biggest impact hasn't been increased corporate spending (although corporate spending has increased). Instead, Citizens United and other cases have led to a huge increase in spending by super-wealthy mega-donors:
Perhaps most important, the singular focus on the decision's empowerment of for-profit corporations to spend in (and perhaps dominate) our elections may be misplaced. Although their influence has increased, for-profit corporations have not been the most visible beneficiaries of the Court's jurisprudence. Instead--thanks to super-PACs and a variety of other entities that can raise unlimited funds after Citizens United--the biggest money (that can be traced) has come from an elite club of wealthy mega-donors. These individuals--fewer than 200 people and their spouses--has bankrolled nearly 60 percent of all super-PAC spending since 2010.
And while spending by this wealthy club has exploded, we have seen neither the increased diversity of voices that the Citizens United majority imagined, nor a massive upsurge in total election spending. In fact, for the first time in decades, the total number of reported donors has begun to fall, as has the total contributed by small donors (giving $200 or less). In 2014, the top 100 donors to super-PACs spent almost as much as all 4.75 million small donors combined.
A sobering picture.
Weiner's "can be traced" parenthetical gets some attention in the report, too, where Weiner discusses dark money, "independent" groups, and reporting requirements (or the lack of reporting requirements)--all features of a post-Citizens United world.
Tuesday, January 20, 2015
The United States Supreme Court heard oral arguments in Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule of judicial conduct prohibiting the personal solicitation of campaign contributions in a judicial election.
Recall that the Florida Supreme Court held that Florida Code of Judicial Conduct, Canon 7C(1) (substantially similar to Canons 4.1(A)(8) and 4.4 of the ABA Model Code of Judicial Conduct), 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's opinion also pointedly noted that federal "judges have lifetime appointments and thus do not have to engage in fundraising" were divided on the constitutionality of the canon, while state judges were not.
In the arguments before the life-tenured Justices today, the problem of line-drawing was pronounced. The fact that the Florida rule was a compromise that allowed judicial campaigns to establish committees to solicit funds and allowed the candidate to know who had contributed and allowed the candidate to write thank you notes called into question whether the canon was narrowly tailored. But, as Justice Kagan noted, that might mean that the state would simply broaden the proscriptions, to include thank you notes for example, and asked whether that would be constitutional. Counsel for the petitioner ultimately answered in the negative, linking the election to the availability of money.
At the heart of this issue is whether judicial elections are like other elections or whether they are distinctly judicial.
Justice Ginsburg, who is decidedly in the camp that judicial elections are different, essentially urged her position at the beginning of the arguments ("the First Amendment allows the State to do things with respect to the election of judges that it wouldn't allow them to do with respect to the election of members of the legislature.")
Chief Justice Roberts seemingly leaned toward equating judicial and political elections, stating that "it's self-evident, particularly in judicial races" that "prohibiting a form of raising funds is to the great advantage of the incumbent" because the only way "incumbents are going to be challenged if you have somebody who can get their own distinct message out." Later he stated that the "fundamental choice was made by the State when they said we're going to have judges elected." This echoes Justice O'Connor's concurring opinion in Republican Party of Minnesota v. White, (2002).
Yet the issue of the coercion of the people being solicited, including attorneys as I have previously discussed, surfaced repeatedly. As Justice Sotomayor candidly revealed:
It's very, very, very rare that either by letter or by personal call that I ask a lawyer to do something, whether it's serve on a committee, help organize something, do whatever it is that I'm asking, that that lawyer will say no. Isn't it inherent in the lawyer/judge context that people are going to say yes?
Whether the Court "says yes" to the ability of a state to ban direct solicitation by judicial candidates will most likely result in a closely divided opinion.
In its unanimous opinion today in Holt (Muhammad) v. Hobbs the Court decided that the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, RLUIPA, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.
The Court's conclusion is predictable from the tenor of the oral arguments. Writing for the Court, Justice Alito found that Holt/Muhammad easily met his burden of showing that the beard ban substantially burdened his exercise of religion under RLUIPA, after which the burden shifted to the Department of Correction to show that its refusal to allow petitioner to grow a 1⁄2- inch beard “(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental interest” under RLUIPA."
The Court rejected the Department of Correction's beard ban as the least restrictive way of furthering prison safety and security including hiding contraband (an argument that was "hard to take seriously" in the context of the 1/2 inch beard) and concealing identities (an argument that suffered in comparison to other institutions and the allowance of 1/4 inch beards and mustaches).
Justice Alito's 16 page opinion for the Court is a model of clarity and concision. It does beg the question, however, of why this was not the District Judge's opinion or the Eighth Circuit's opinion. As we previously discussed, the odds of this case getting before the Court were incredibly high, but the underlying pro se litigation exemplifies the difficulties of prison inmates vindicating their rights.
Indeed, Justice Sotomayor wrote separately to stress the role deference to prison administrators that should be afforded by courts. Prison officials must offer a "plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them," rather than adopt policies based on "mere speculation." Again, this begs the question of the reliance by the lower courts on the prison's arguments.
Finally, the very brief concurring opinion by Justice Ginsburg, and joined by Justice Sotomayor, distinguished the much more contentious Hobby Lobby:
Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that understanding, I join the Court’s opinion.
Thus, Justice Ginsburg makes clear that she is not opposed to religious accommodation per se, even under the strict scrutiny standard, when the rights of others are not part of the analysis.
Monday, January 19, 2015
ConLawProfBlog's own Prof. Ruthann Robson (CUNY) recently published her thoughtful, creative, and compelling piece on Williams-Yulee, the case testing Florida's ban on campaign contributions by judicial candidates, on the Supreme Court's calendar on Tuesday. Robson's Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar is part of Vanderbilt Law Review's Rountable on the case.
Robson takes a refreshing look at the issue of judicial candidate campaign contributions through the eyes of a public interest attorney. Indeed, she starts the piece with a personal testimonial about being solicited herself--and the awkward position that put her in. (Tellingly, her position wasn't so awkward for other, non-public interest attorneys. They simply contributed.)
She argues that public interest lawyers have a special interest in this issue, and in this case. That's because
as public interest attorneys, we are less likely to be able to contribute to judicial campaigns, but may feel more likely to comply with a solicitation because we know our clients are already at a disadvantage. Additionally, our opposing clients and counsel are often those who are precisely in the position of being solicited and of answering those solicitations with substantial contributions.
She makes her case by persuasively arguing for a "second look" at four earlier decisions--newer and older, all touching on judicial integrity--that in different ways illustrate why a ruling for Williams-Yulee (overturning Florida's ban) "would have a disproportionately negative impact on the public interest bar." Those cases are Republican Party of Minnesota v. White (striking Minnesota's rule that prohibited judicial candidates from announcing their views on disputed issues); Caperton v. A.T. Massey Coal Co. (holding that the failure of a state high court judge to recuse himself from a case involving a major donor violated due process); Shelley v. Kraemer (holding that the judiciary is subject to the same constitutional constraints that the other branches are); and In Re Hawkins (Fl. Sup. Ct.) (upholding a sanction of removal from the bench after a judge sold her book to attorneys with cases before her).
Robson's "second look" cases together illustrate why an impartial judiciary, and the appearance of an impartial judiciary, are so important--to the public, to be sure, but especially to public interest attorneys and their clients. They also show how a ruling for Williams-Yulee (a former public defender herself) could so adversely affect the public interest bar.
Robson's piece brings a voice to this case--the voice of the underrepresented and their attorneys--that's all-too-often lost in sterile arguments about free speech. And she shows why the Court should pay attention to that voice.
[Public interest attorneys] should not have to worry whether [judges] think we "support" them, or whether our adversaries "support" them. We should not have to curry favor through financial contributions directly requested by a person who is hearing our client's causes. To do our work, we must continue to have faith that our judges, whether elected or whether appointed to the United States Supreme Court, are not mere politicians.
An excellent piece that adds to the debate. Check it out.
Thursday, January 15, 2015
The Brennan Center issued a report this week concluding that very wealthy "independent" spenders are the primary beneficiaries of the five-year-old Citizens United. Daniel Weiner, the report's author, says, "This is perhaps the most troubling result of Citizens United: In a time of historic wealth inequality, the decision has helped reinforce the growing sense that our democracy primarily serves the interests of the wealthy few, and that democratic participation for the vast majority of our citizens is of relatively little value." Weiner explains that wealthy individuals spend through super-PACs and dark money group, "while often sponsoring candidates like racehorses."
The report also looks at other Citizen United legacies, including the increase in dark money election spending by publicly held corporations, weakening contribution limits, and trampling shareholder and employee rights (because shareholders and employees are often kept in the dark about corporate spending).
So: What to do? David Gans of the Constitutional Accountability Center has one idea. He argues this week in the LA Times that Congress should encourage political participation (campaign contributions) by small donors through contribution tax credits. Gans explains that Congress passed just such a tax credit in 1972, and that it lasted until 1986. But it is no more. He also explains why a tax credit should have bipartisan support (as it did in 1972). Gans elaborates on his argument in an issue brief titled Participation and Campaign Finance: The Case for a Federal Tax Credit.
Reversing the district court, the Third Circuit's opinion today in Flora v. County of Luzerne held that a public defender's complaint contained sufficient allegations to proceed with a First Amendment retaliation claim.
The unanimous panel held that the United States Supreme Court's 2014 decision in Lane v. Franks "clarified that '[t]he critical question under Garcetti [v. Ceballos] is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” While the Third Circuit noted that the district judge did not have the "benefit of Lane" when it rendered its decision, it stated that "Garcetti alone should have steered it away from applying" the standard it did, a “related to” employment standard.
So what did Chief Public Defender Flora do that he alleges was protected by the First Amendment? First, after many unsuccessful attempts to procure what he saw as inadequate funding for indigent defense, he eventually initiated a class action lawsuit for the benefit of indigent criminal defendants in state court, and interestingly simultaneously sought relief in federal court from being terminated for this action. Second, the county's notorious "Kids for Cash" scandal had resulted in a 2009 order by the state supreme court of vacatur and expungement of thousands of delinquency adjudications and consent decrees, but in 2013 Flora learned that over 3,000 expungements had not yet occurred. He "brought that failure to the attention of the County, the District Attorney for the County, the Administrator of the Court of Common Pleas, the public interest law firm that represented the juveniles in the expungement proceedings, and Judge Grim," who had been the special master in the case.
Both the lawsuit and the reporting of the failure to expunge were obviously "related to" Flora's position as a public defender. But the Third Circuit rejected the "related to" standard in favor of the "ordinary duties" standard. In this light, its interesting that the court highlights Flora's allegations that
his obligations as an attorney, rather than as the Chief Public Defender, compelled him to make the statements at issue. [And that] the funding crisis and the expungement issue as extraordinary circumstances impelling him to extraordinary speech.
The Third Circuit concludes:
A straightforward application of Lane leads us to conclude that, given those allegations, Flora’s speech with respect to both the funding litigation and the expungement problems was not part of his ordinary responsibilities – it was not part of the work he was paid to perform on an ordinary basis. . . Flora’s ordinary job duties did not include the public reporting of lingering effects from government corruption or the filing of a class action suit to compel adequate funding for his office. Rather, he represented indigent clients in criminal court and in related proceedings . . . .To view it otherwise would unduly restrict First Amendment rights, because reporting malfeasance or misfeasance will regularly benefit an employee in the execution of his job duties by, presumably, removing impediments to proper government functioning.
The Third Circuit's opinion is another example of courts retreating from the broad brush of Garcetti and providing First Amendment protections for "whistleblowers," including attorneys who take action based on their ethical obligations.
On Tuesday, January 20, the United States Supreme Court will hear arguments 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. Our discussion of the grant of certiorari is here.
Vanderbilt Law Review has published its "Roundtable" symposium about the pending case. It includes:
The Absent Amicus: “With Friends Like These . . .”
Robert M. O’Neil · 68 Vand. L. Rev. En Banc 1 (2015).
Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar
Ruthann Robson · 68 Vand. L. Rev. En Banc 15 (2015).
Much Ado About Nothing: The Irrelevance of Williams-Yulee v. The Florida Bar on the Conduct of Judicial Elections
Chris W. Bonneau & Shane M. Redman · 68 Vand. L. Rev. En Banc 31 (2015).
Williams-Yulee and the Inherent Value of Incremental Gains in Judicial Impartiality
David W. Earley & Matthew J. Menendez · 68 Vand. L. Rev. En Banc 43 (2015).
Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar
Stephen J. Ware · 68 Vand. L. Rev. En Banc 59 (2015).
The Jekyll and Hyde of First Amendment Limits on the Regulation of Judicial Campaign Speech
Charles Gardner Geyh · 68 Vand. L. Rev. En Banc 83 (2015).
What Do Judges Do All Day? In Defense of Florida’s Flat Ban on the Personal Solicitation of Campaign Contributions From Attorneys by Candidates for Judicial Office
Burt Neuborne · 68 Vand. L. Rev. En Banc 99 (2015).
Williams-Yulee v. The Florida Bar, the First Amendment, and the Continuing Campaign to Delegitimize Judicial Elections
Michael E. DeBow & Brannon P. Denning · 68 Vand. L. Rev. En Banc 113 (2015).
January 15, 2015 in Courts and Judging, Due Process (Substantive), Elections and Voting, First Amendment, Fourteenth Amendment, Scholarship, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 14, 2015
In its opinion today in Smith v. County of Suffolk, a unanimous panel of the Second Circuit reversed the grant of a summary judgment in favor of the Suffolk County Police Department.
Smith, a police officer, had presumably engaged in First Amendment protected activity, including unathorized communication with media: Smith corresponded with CNN commentator Jeffrey Toobin over a period of three years; Smith exchanged emails with Newsday correspondent Christine Armario expressing concern that the Department’s policy of arresting unlicensed drivers led to ethnic discrimination.
These presumptions were made by the district court, not appealed by the Police Department, and so accepted by the Second Circuit as true. However, the district court's ruling that the third of the elements necessary to establish a prima facie case under Pickering v. Board of Education (1968): a causal connection between the protected speech and the adverse action. Instead, the Second Circuit found that
The plain language of several of the disciplinary charges at the heart of the adverse actions directly implicates not only the fact that Smith had engaged in protected speech, but also the content of that speech. . . . The Department. . . characterized the content of the speech and cited that characterization as the basis for several disciplinary charges.
The Second Circuit then analyzed whether a summary judgment was warranted under Mount Healthy City School District Board of Education v. Doyle (1977), if the Department "would have investigated, transferred, and suspended Smith absent his citizen-media speech." The court reasoned that the Mount Healthy defense requires specifics:
Much as plaintiffs are required at the prima facie stage to demonstrate not only the existence of protected speech but a causal connection between that speech and the adverse action, defendants asserting a Mount Healthy defense may not rely solely on the occurrence of unprotected misconduct: they must also articulate and substantiate a reasonable link between that misconduct and their specific adverse actions. A general statement that the employer would have taken some adverse action will not suffice.
(emphasis in original). Moreover,
Put simply, the evidence of record before us permits only inferences. Those inferences may be drawn in either party’s favor, and we require more than inferences from an employer seeking summary judgment based on the Mount Healthy defense.
Similar to the Supreme Court's unanimous decision last term in Lane v. Franks, the Second Circuit's opinion is another indication that courts should take First Amendment claims by public employees more seriously.
Monday, January 12, 2015
The Court heard oral arguments today in Reed v. Town of Gilbert regarding a First Amendment challenge to the town's extensive regulation regarding signage. The town generally 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.”
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. Today's oral argument seemed inclined toward a contrary opinion.
In part, the problem seemed to be the city's protection of political speech over other types of speech. As Justice Scalia asked "is there no First Amendment right to give somebody directions?" This question seemed to undercut the categorical approach, for as Justice Kagan asked earlier in the argument to counsel for Reed,
Can I ask about the category for political signs, which is the most favorable? Because all the time this Court says that political speech is the most valued kind of speech. It's at the heart of the First Amendment. It gets special First Amendment protection. So in a way, why aren't isn't isn't the locality here basically adopting the same kind of category based understanding of political speech and its special rule and First Amendment analysis that this Court has very frequently articulated?
Importantly, the directional content is relevant only for temporary signs. This of course raises the question of what is a temporary sign and how can one discern that without looking at the sign’s content. At one point Chief Justice Roberts suggested that the distinction might be whether the sign is stuck in the ground with a little stake or whether it's in concrete, but quickly said that doesn't help the city's legitimate concerns. Yet the city's concerns over aesthetics and safety never seemed adequately connected to regulating directional signs more severely than election signs. Later, Justice Scalia asked whether there was a difference between the function of a sign and the content of the sign and whether function doesn't depend upon content.
Much of the doctrinal discussion was whether the standard of review should be strict scrutiny or intermediate scrutiny. The assistant to the Solicitor General argued that the correct standard with intermediate scrutiny under which the ordinance would be unconstitutional.
Interestingly Justice Ginsburg sought to distinguish intermediate scrutiny in the context of the First Amendment from the context of equal protection in which "intermediate scrutiny is a pretty tough standard." One can presume she was referencing her own opinion for the Court in United States v. Virginia, the VMI case.
As anticipated the justices posed several hypos. Probably the most trenchant of these was "Happy Birthday, Uncle Fred." Especially as compared to "Birthplace of James Madison" given that both signs could "be up for the same length of time, same size" as Justice Kennedy stated.
If today's argument is any indication - - - always a risky proposition - - - the regulations are likely to be declared unconstitutional. It may be that such an application will have what counsel for the town called an "opposite effect" : it "will limit speech because towns, cities will enact one size fits all" and governments "would be inclined to ban all signs except those that the First Amendment absolutely allows." Justice Alito, in reply, essentially shrugged: "You can make that argument in all kinds of contexts. I don't know where it gets you."
Thursday, January 8, 2015
Judge Irene Berger of the Southern District of West Virginia issued a Memorandum Opinion and Order clarifying and amending but essentially reaffirming her extensive "gag" order in United States v. Blankenship, the criminal prosecution (which some say is unprecedented) of CEO Don Blankenship (pictured below) of Massey Energy for his alleged responsibility for the the Upper Big Branch Mine Disaster. Recall Blankenship as the outsized contributor to the campaign of Brent Benjamin for the West Virginia Supreme Court of Appeals; as a Justice Benjamin ruled in a case involving Massey Coal. The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal held that the failure of Benjamin to recuse himself violated due process. The case is the subject of the book The Price of Justice.
To say that Blankenship is controversial - - - given the Upper Big Branch Mine disaster and Caperton with its underlying facts - - - is probably an understatement. And Judge Berger has a difficult task attempting to protect Blankenship's rights to an impartial jury and fair trial. But do Judge Berger's orders go too far?
The objections to Berger's original orders were filed as a motion to intervene by the Wall Street Journal, the Associated Press, Charleston Gazette, National Public Radio, Inc., and the Friends of West Virginia Public Broadcasting, Inc.. Judge Berger allowed the intervention for the limited purpose of challenging the previous orders and found that the press organizations had constitutional standing.
Judge Berger's analysis centered on the classic First Amendment/Sixth Amendment conflict cases of Sheppard v. Maxwell (1966) and Nebraska Press Association v. Stuart (1976). From these cases, Judge Berger noted she has
the discretion and, more importantly, the duty to take specific, reasonable steps to guard against prejudice at the outset where it has knowledge, given prior publicity, that continued publicity, regarding the facts underlying the indictment, is likely to taint prospective jurors. Courts do not exist or operate in a vacuum. In the Southern District of West Virginia, we live in coal country. Many of our families depend on coal mining for their livelihood. Many families and communities within the Southern District of this state were impacted by the deaths of the miners in the Upper Big Branch mine explosion referenced in the indictment. Interest in this case is, understandably, heightened by that loss of life. In short, the environment matters.
Judge Berger stressed that the court's order "is not directed toward the press." Instead, it limits the "parties" from communicating with press (and "only limits the subject matter") and keeps documents filed in the court case sealed.
Yet three questions remain about the orders.
First, the breadth of the "gag" order was challenged. In addition to the parties, attorneys, and court personnel it includes
potential witnesses, including actual and alleged victims, investigators, family members of actual and alleged victims as well as of the Defendant.
In a footnote, Judge Berger explained the inclusion of "family members":
the order applies only to those who may appear during some stage of the proceedings as parties or as witnesses. Even if not direct witnesses to the alleged offenses, victims and their family members may be witnesses at sentencing or potential beneficiaries of restitution, should the case reach that posture. As such, they are “trial participants.”
Later, she states that allowing " a potential trial participant to speak through his or her family member would eviscerate the protective measures, and is further evidence of the need for the inclusive order."
Yet "family" here could potentially be quite broad, especially in the context of rural West Virginia.
Second, Judge Berger relied on the fact that the docket was available, although not the underlying documents being referenced. Nevertheless, the new (Amended) Order released many documents, based on a principle that
any documents that do not contain information or argument related to the facts and substance of the underlying case do not fall within the purview of the [original] order, and should be publicly accessible.
Yet the standard does seem murky, and of course the press will have a difficult time objecting to the non-release of pleadings or other documents.
Third and last, Judge Berger's rejection of change of venue (as well as voir dire) as lesser restrictions of the First Amendment rights of the press (and public) as "not feasible options at this time" is interesting. Berger outlines the preference for an accused to be tried in the district in which the crime is alleged to have been committed. She writes that transfer of venue "takes place after pretrial publicity has tainted the jury pool such that a jury cannot be seated within the district." Thus, she essentially elevates the "right" to be tried in the alleged-crime's district over both the First and Sixth Amendment rights.
Judge Berger has crafted a delicate balance which will most likely need continuing calibration. Her task to prevent a "Roman holiday" for the media (as the Court said in Sheppard) is not only operative during the pre-trial publicity stage but will undoubtedly be pronounced during the trial itself.
January 8, 2015 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), Family, First Amendment, Opinion Analysis, Sixth Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
In a relatively brief per curiam opinion in Phillips v. City of New York the Second Circuit has upheld New York's vaccination requirement to attend public school, N.Y. Pub. Health Law § 2164(7)(a), against constitutional challenges.
The court rejected arguments that the statutory vaccination requirement and its enforcement by exclusion of students from school violates substantive due process, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, as well as state and municipal law. Important to the court's rationale, and which the opinion took care to mention even in its description of the statute, the law includes medical and religious exemptions.
The religious exemption is most interesting in the context of this litigation. For one plaintiff, the court affirmed the rejection of the religious basis for her sought-for exemption, agreeing with previous determinations that "her views on vaccination were primarily health‐related and did not constitute a genuine and sincere religious belief." For another plaintiff, who had a religious exemption, the court found that the exclusion of her children from school during a vaccine-preventable outbreak of chicken pox was constitutional: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” quoting and citing Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944).
The centerpiece of the court's analysis was predictably and correctly the Supreme Court's 1905 decision in Jacobson v. Commonwealth of Massachusetts, rejecting a constitutional challenge to a state vaccination mandate.
The issue of vaccinations and constitutional challenges has received renewed attention in light of outbreaks of childhood illnesses thought to be essentially eradicated. For example, as the LA Times reported yesterday, a recent outbreak of measles in California could be connected to vaccine-resistance:
"The current pertussis and measles outbreaks in the state are perfect examples of the consequences and costs to individuals and communities when parents choose not to vaccinate their children," [Gil] Chavez [epidemiologist with the California Department of Public Health] said.
Ther have also been widespread reports of illness outbreaks in Michigan, arguably attributable to its liberal opt-out allowance for school children.
January 8, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Medical Decisions, News, Religion, Science | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 7, 2015
Ron Collins has a moving and instructive obituary for Al Bendich, who as a new lawyer represented Lawrence Ferlinghetti against obscenity charges for publishing Allen Ginsburg's now-classic HOWL and later representing well-known comedian Lenny Bruce against similar charges.
Collins is adamant about recalling the lawyers in First Amendment cases - - - and not merely the judges - - - and the career of Bendich is a reminder of the importance of litigators.
UPDATE: The New York Times Obituary of January 13, 2015, with quotes from Collins as well as others is here.
Monday, January 5, 2015
The actions - - - or inaction - - - of the grand jury that did not indict police officer Darren Wilson for the death of Michael Brown has prompted much controversy, including protests. At the heart of this controversy is not only the actual facts of the incident, but the conduct of the grand jury by the prosecutor, Robert McCulloch. McCulloch took the unusual step of providing a detailed statement about the grand jury proceedings to the press and of filing a motion in court for public disclosure of materials considered by the grand jury.
Both of those documents - - - McCulloch's statement to the press and his memorandum in support of the motion for disclosure - - - are appendices in a complaint filed today in the Eastern District of Missouri, by the ACLU of Missouri, Grand Juror Doe v. Robert McCulloch.
Grand Juror Doe, who served on the grand jury, argues that the Missouri statutes prohibiting grand jurors from discussing the proceedings are an infringement of the First Amendment as applied in this situation. A copy of these statutes, Mo. Stat. §540.080 (Oath of Jurors); Mo. Stat. §540.320 (Grand juror not to disclose evidence-penalty); and Mo. Stat. §540.310 (Cannot be compelled to disclose vote), were given to the grand jurors at "the conclusion of their service," according to paragraph 28 of the complaint. But because the prosecutor has released evidence and made statements, as well as because of the legislative resolution to submit for voter referendum a repeal of the Missouri state constitutional provision providing for grand juries, Doe argues that s/he is being chilled from expressing opinions about matters of public concern and engaging in political speech.
The factual allegations in the complaint do provide a window on the content and viewpoint of Doe's expression. Doe alleges that the conduct of the grand jury investigation of Darren Wilson "differed markedly" from other cases presented to the grand jury, and even more provocatively, that McCulloch's statement to the press and release of records do not comport with Doe's own opinions of the process.
This request for a permanent injunction against enforcing any of the challenged Missouri statutes against Doe should s/he speak about the grand jury proceedings against Wilson is supported by basic First Amendment considerations and basic notions of fairness. The root problem here is not grand jury secrecy, but the lifting of that veil of secrecy for one party and perspective only. As Justice Scalia stated in the context of vindicating First Amendment rights in RAV v. City of St. Paul, this would be akin to "authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules."
Friday, January 2, 2015
Cyrus Favier, over at ars technica, surveys the candidates of current litigation- - - five! - - -that might bring the issues of the constitutionality of NSA surveillance to the United States Supreme Court.
Favier looks at the dueling opinions in Klayman v. Obama and ACLU v. Clapper, as well as lesser known cases winding their ways through the courts. And as he implies, regardless of the status of these particular cases, there are plenty more percolating:
Case name: N/A
Moreover, the Court's unanimous recent opinion in Riley v. California finding a cell phone search requires a warrant and the continuing uncertainty over the 1979 "pen register" case Smith v. Maryland gives some credence to the speculation.
ConLawProfs looking for something accessible yet substantively provocative for the first day of classes should take a look at Favier's article.
Tuesday, December 23, 2014
Massachusetts Supreme Court Upholds Cyber Harassment Statute and Conviction Against First Amendment Challenge
In its unanimous opinion today in Commonwealth v. Johnson, the Supreme Judicial Court of Massachusetts upheld the state's criminal harassment statute as applied to "conduct" that largely involved speech and often occurred using electronic means.
The statute provides that whoever "willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment."
Of particular First Amendment concern is the statute's provision that the
conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.
The facts are rather chilling, escalating from incidents that might properly be called "pranks" to incidents that were clearly malicious. The defendants, the Johnsons, were involved in a protracted property and business dispute with the victims, the Lyons. The defendants and their "handyman" placed a false advertisement on Craigslist, causing many people to arrive at the Lyons' home to collect free golf carts, and then another advertisement on Craigslist selling a motorcycle and directing interested persons to call Mr. Lyons after 10:00 pm. Next, there was an email entitled "Let the Games Begin!" that included the victims' personal information, including social security number and banking information. Then there was an an after-hours emergency call to the child abuse hotline reporting physical abuse to a child, resulting in a 10:30pm visit from child protective workers to the home. And finally, there was an email, followed by a letter, to Mr. Lyons from a fictitious person accusing him of sexual molestation of the writer when the writer was 15.
On appeal after conviction, the defendants argued that the statute violated the First Amendment, both on its face and as applied. The court found that the facial challenge was not preserved, but addressed it by concluding that the statute provides adequate notice and safeguards that prevent its application to protected speech and noting that similar statutes have been upheld. As to the as-applied challenge, the court found
The defendants' as-applied constitutional challenge also fails because the conduct in question was not protected speech, but rather a hybrid of conduct and speech integral to the commission of a crime . . . [and] as applied to the defendants, does not implicate constitutionally protected speech rights.
The court rejected the argument that because the statute was not directed at "fighting words" it encompassed First Amendment protected speech. Instead, the court explained that there were other categories of speech that were not protected under the Court's 1942 language in Chaplinsky v. New Hampshire regarding unprotected speech as words that are "no essential part of any exposition of ideas, and are of such slight social value as a step to truth' that whatever meager benefit that may be derived from them is 'clearly outweighed' by the dangers they pose." As the Supreme Judicial Court of Massachusetts stated:
"Speech integral to criminal conduct is one such long-standing category that is constitutionally unprotected, directly applicable to the defendants' conduct here. . . ."
The court also evaluated the sufficiency of the evidence. It again rejected the defendants' arguments.
The court's First Amendment analysis quotes the well-known principle that "[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Clearly, the conduct - - - and speech - - -of the defendants gave little reason for the court to depart from this principle.
And even should the United States Supreme Court find the "facebook threats" conviction in Elonis v. United States, argued December 1, violates the First Amendment, it would most likely have little impact on the Johnsons' First Amendment claims.
Monday, December 22, 2014
Fourth Circuit Finds North Carolina's Anti-Abortion "Right to Know" Statute Violates First Amendment
In the unanimous panel opinion today in Stuart v. Camnitz, authored by Judge J. Harvie Wilkinson, the court agreed with the district judge that North Carolina's "Woman's Right to Know Act" violates the First Amendment. The Act required a physician "to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions."
The Fourth Circuit ruled that the statute is
quintessential compelled speech. It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion. The state freely admits that the purpose and anticipated effect of the Display of Real-Time View Requirement is to convince women seeking abortions to change their minds or reassess their decisions.
The court rejected the state's contention that the statute was merely a regulation of professional speech that should be subject to the low standard of rational basis review. Instead, the court reasoned that because the statute was a content-based regulation of speech, it should be evaluated under an intermediate scrutiny standard akin to that of commercial speech.
Importantly, the court also acknowledged its specific disagreement with the Eighth Circuit's en banc opinion in Planned Parenthood v. Rounds (2012) and the Fifth Circuit's opinion in Tex. Med. Providers Performing Abortion Servs. v. Lakey (5th Cir. 2012). The Fourth Circuit states that its sister circuits were incorrect to reply on a single paragraph in Planned Parenthood of Southeastern Pa. v. Casey, and "read too much into Casey and Gonzales [v. Carhart]," neither of which, the court points out, were First Amendment cases.
As the court stated,
In sum, though the State would have us view this provision as simply a reasonable regulation of the medical profession, these requirements look nothing like traditional informed consent, or even the versions provided for in Casey and in N.C. Gen. Stat. § 90-21.82. As such, they impose an extraordinary burden on expressive rights. The three elements discussed so far -- requiring the physician to speak to a patient who is not listening, rendering the physician the mouthpiece of the state’s message, and omitting a therapeutic privilege to protect the health of the patient -- markedly depart from standard medical practice.
Abortion may well be a special case because of the undeniable gravity of all that is involved, but it cannot be so special a case that all other professional rights and medical norms go out the window. While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.
Most likely North Carolina will seek en banc review or petition for certiorari based on the conflicting opinions in the Fifth and Eighth Circuits.
UPDATE: On June 15, 2015, the United States Supreme Court's Order denied certiorari in the case now styled Walker-McGill v. Stuart, with a notation "justice Scalia dissents," but with no accompanying opinion.
Thursday, December 18, 2014
The Second Circuit has granted full court review in Garcia v. Does, a panel decision which allowed plaintiffs' complaint arising from their arrests for participating in a demonstration in support of the Occupy Wall Street movement. The panel, affirming the district judge, denied the motion to dismiss of the defendants/appellants, holding that on the current record it could not
resolve at this early stage the ultimately factual issue of whether certain defendants implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law.
The unidentified Doe officers argued that video evidence warrants a dismissal. The First Amendment issue of "fair warning" to revoke permission to protest is at issue in the case - - - which would seemingly require more than (incomplete) video evidence. Yet the issue of qualified immunity is seemingly argued as overshadowing the incomplete evidence.
Judge Debra Ann Livingston's lengthy dissent from the opinion by Judges Calabresi and Lynch argues that the panel majority "failed to afford the NYPD officers policing the “Occupy Wall Street” march the basic protection that qualified immunity promises – namely, that police officers will not be called to endure the effort and expense of discovery, trial, and possible liability for making reasonable judgments in the exercise of their duties."
Judge Livingston's views most likely attracted other judges. Now the "in banc" court (as the spelling is used in the Second Circuit) will hear the case, including Senior Judge Calabresi because he was on the panel.