Wednesday, June 18, 2014
In an extensive opinion today in Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185, a divided Trademark Trial and Appeal Board canceled the trademark of the term "redskins" as violative of section 2(a), 15 U.S.C. § 1052(a), prohibiting registration of marks that may disparage persons or bring them into contempt or disrepute.
The majority opinion relied upon dictionary definitions, expert opinions, and surveys to conclude that the term is disparaging - - - and was so at the time the trademark was approved. The majority rejected the laches defense in part because "there is an overriding public interest in removing from the register marks that are disparaging to a segment of the population beyond the individual petitioners."
Judge Bergsman's dissenting opinion disagreed with the
majority’s decision to grant the petition on the claim of disparagement because the dictionary evidence relied upon by the majority is inconclusive and there is no reliable evidence to corroborate the membership of National Council of American Indians.
To be clear, this case is not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today. The provisions of the statute under which the Board must decide this case – §§ 2(a) and 14(3) of the Trademark Act, 15 U.S.C. §§ 1052(a) and 1064(3) – require us to answer a much narrower, legal question: whether the evidence made of record in this case establishes that the term “redskins” was disparaging to a substantial composite of Native Americans at the time each of the challenged registrations issued.
Neither the majority or dissenting opinion - - - both of which are lengthy - - - engage with the possible First Amendment free speech issues or with the possible Equal Protection issues; this is decidely a case interpreting a statutory provision regarding trademark.
Yet the constitutional contours of speech and equality are evident in both opinions, just as constitutionalism has been implicated in the controversies surrounding the use of the term. Thus, while a "trademark case," Blackhorse v. Pro-Football, Inc. is worth consideration by constitutional students and scholars. And its comparison to the "dykes on bikes" trademark case, which I've discussed here, is also worth consideration by those interested in constitutionalism, democracy, and language.
At the Cato Institute in Washington D.C. and live-streaming today at noon (EST), there's a discussion featuring Shaun McCutcheon - - - millionaire, plaintiff, and now author of Outsider Inside the Supreme Court: A Decisive First Amendment Battle- - - and Professor Ron Collins - - - First Amendment scholar and author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment.
They will be joining others to discuss the Court's decision this Term in McCutcheon v. FEC and the future of campaign finance under the First Amendment.
More information here.
Tuesday, June 17, 2014
Over a dissent from Justice Scalia, joined by Thomas, the United States Supreme Court decided not to review the closely watched Elmbrook School District v. Doe. The case was relisted by the Court at least ten times before the petition for certiorari was finally denied.
Recall as we discussed almost two years ago, the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church. Justice Scalia's dissent contended that because the Seventh Circuit's opinion is now "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway - - - this Term's controversial 5-4 decision upholding town council's prayer - - - "the Court ought, at a minimum, to grant certiorari, vacate the judgment, and remand for reconsideration (GVR)."
Yet Scalia's dissent might be most noteworthy for its casual evisceration of the Establishment Clause:
Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.
My own aversion cannot be imposed by law because of the First Amendment. See Ward v. Rock Against Racism, 491 U. S. 781, 790 (1989); Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975). Certain of this Court’s cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies—this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.
(emphasis in original).
However, with the denial of certiorari in Elmbrook School District, the line between adult activities such as legislative meetings and "school" activities such as graduations persists in Establishment Clause doctrine.
Monday, June 16, 2014
The United States Supreme Court has granted certiorari in Elonis v. United States, a case regarding a criminal conviction for threats against his estranged wife and others posted on Facebook.
The question presented in the certiorari question is:
Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.
However, in its Order today, the Court stated:
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."
The Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof. There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate.
The doctrine of "true threats" has long been a fraught one. As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech.
At times, this inquiry becomes grammatical. For example, the Third Circuit found that a particular posting that Elonis claimed was conditional and therefore could not be a "true threat," could have reasonably been found by a jury to be a true threat. The Third Circuit extensively quotes the facebook postings of Elonis, but we shall not repeat them here given language some might find objectionable. It will be interesting to see what language choices the Justices make.
The Court's grant of certiorari may - - - or may not - - - indicate that some Justices found that Elonis's facebook postings failed to rise to the level of true threats. Undoubtedly, however, this case will be watched not only by those interested in "free speech on the internet" but also by those interested in "intimate partner violence."
Unanimous Supreme Court Returns Susan B Anthony List v. Driehaus for Decision on Election Law Merits
The Court's unanimous opinion in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements, reversed the Sixth Circuit's determination that the case was not ripe. Recall that Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List, but the Sixth Circuit held the SB List could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."
As we discussed after oral argument, the Justices seemed inclined to find the courts had Article III power to hear the case, although there was some doctrinal fuzziness whether the case should be analyzed as one of "standing" or one of "ripeness." Footnote 5 of the opinion by Justice Thomas for the Court resolves the question firmly in favor of standing:
The doctrines of standing and ripeness “originate” from the same Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 335 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case “boil down to the same question.” Med- Immune, Inc. v. Genentech, Inc., 549 U. S. 118, 128, n. 8 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392 (1988), and Babbitt v. Farm Workers, 442 U. S. 289, 299, n. 11 (1979), we use the term “standing” in this opinion.
The Court reiterated the established criteria: (1) an "injury in fact" (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a likelihood that the injury “will be redressed by a favorable decision," noting that the hurdle for the organization of Susan B. Anthony List was the "injury in fact" requirement. To establish "injury in fact," the organization had to demonstrate the threat of future prosecution by the election board was sufficiently "concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” and "certainly impending,” or there is a “‘substantial risk’ that the harm will occur.”
The shadow of the First Amendment was apparent in the Court's reasoning: "The burdens that [Election] Commission proceedings can impose on electoral speech are of particular concern here."
The Court's relatively short and unanimous opinion breaks no new ground. It draws on establishing standing precedent which it applies in a relatively straightforward manner, and then quickly dispatches the "prudential" rationale for rejecting jurisdiction.
However, it's worth considering as a contrast a case uncited by the Court - - - Los Angeles v. Lyons (1983) - - - in which a deeply divided Court decided that Adolph Lyons did not have standing to challenge the City of Los Angeles police department's sometimes fatal practice of administering a "chokehold" to persons it stopped for traffic violations. As Justice Marshall wrote in the dissenting opinion (joined by Justices Brennan, Blackmun, and Stevens):
Since no one can show that he will be choked in the future, no one — not even a person who, like Lyons, has almost been choked to death — has standing to challenge the continuation of the policy. The city is free to continue the policy indefinitely as long as it is willing to pay damages for the injuries and deaths that result. I dissent from this unprecedented and unwarranted approach to standing.
Perhaps Susan B. Anthony List demonstrates that Justice Marshall's view has proven to be correct and that Lyons can now be disregarded. Or perhaps, studies such as this and this are correct that the status of Susan B. Anthony List as an anti-abortion organization and the status of Adolph Lyons as an African-America male confronting law enforcement are just as important as doctrine.
Friday, June 13, 2014
Reversing the federal district court, the Fifth Circuit issued its opinion in United States v. Richards upholding the Animal Crush Video Protection Act of 2010 against a First Amendment challenge. At 14 pages, the opinion authored by Judge Stephen Higginson is workmanlike but ultimately fails to satisfy the concerns raised by the statute.
Recall that the 2010 Act, 18 U.S.C. § 48 (2010), is the Congressional revision of the crush porn statute the United States Supreme Court found unconstitutional in United States v. Stevens. In Stevens, the eight Justice majority found that the statute criminalizing portrayals of animal cruelty was of "alarming breadth" and could operate to criminalize popular hunting television programs. When Congress passed an amended statute, it included a provision that the portrayal "is obscene" and specific exclusions for hunting and slaughter.
Unlike the criminal defendant in Stevens (who was prosecuted for dog-fight videos), the defendants in Richards were charged with producing "crush porn" in which there is the depiction of cruelty to a small animal in an arguably sexual manner.
The First Amendment challenge to the statute contended that the "obscene" prong of the statute did not incorporate the necessary Miller v. California test for obscenity. Under Miller, this requires "sexual conduct," but Congressional history seemed debatable on this requirement. Disagreeing with the district judge, however, the Fifth Circuit panel concluded it should not look to "variable and debatable legislative history to render unconstitutional a statute that incorporates a legal term of art with distinct constitutional meaning." Thus, it held that "§48 incorporates Miller obscenity and thus by its terms proscribes only unprotected speech."
The Fifth Circuit rejected the argument that §48 proscribes only a certain type of obscenity in contravention of what some would call the "categorical approach" employed by the Court in the hate speech case of R.A.V. v. City of St. Paul. After describing this argument, the Fifth Circuit veered into the much-disparaged "secondary effects" doctrine to conclude that
even assuming, for the sake of argument, that the creators and distributors of animal crush videos, like Richards and Justice, intend to advance a distinct message, perhaps about barbarism, § 48 is justified with reference not to the content of such a message but rather to its secondary effects—wanton torture and killing that, as demonstrated by federal and state animal-cruelty laws, society has deemed worthy of criminal sanction.
The panel thus concludes that "Section 48 thus is narrow and tailored to target unprotected speech that requires the wanton torture and killing of animals." In doing so, the opinion noted that "a long history and substantial consensus, as seen in state and federal legislation, are indicative" of a compelling or substantial interest - - - and cited for this proposition New York v. Ferber. Ferber, upholding the constitutionality of criminalizing child pornography, is of course the very case Chief Justice Roberts' opinion for the Court in United States v. Stevens distinguished; the Court rejected the analogy between child porn and (animal)crush porn.
The Fifth Circuit en banc should take another look at United States v. Richards and the First Amendment contours of the "crush porn" statute without reference to "secondary effects."
Wednesday, June 11, 2014
The Sixth Circuit today denied a preliminary injunction to a group of religious employers and religious nonprofits challenging the exemption from and the accommodation to the contraception mandate in the Affordable Care Act. The ruling is just the latest in a line of challenges to the accommodation. We posted most recently here. (These cases are different than the Hobby Lobby case now before the Supreme Court: these cases involve religious nonprofits that take issue with the accommodation to the contraception mandate, where the Hobby Lobby case involves a corporation's challenge to the mandate itself.)
The cases are unusual, even surprising, in that the plaintiffs challenge the government's attempt to accommodate their religious beliefs as itself a violation of their religious rights.
The organizations challenged the exemption from and the accommodation to the mandate under the Religious Freedom Restoration Act and the First Amendment (speech and religion clauses). The court ruled that they failed to demonstrate a likelihood of success on the merits and thus affirmed the lower court's denial of a preliminary injunction.
The court noted that some of the plaintiffs were religious employers who qualified for the exemption from the mandate. Because the exemption exempts them, and because it does not require any particular act on the part of the organizations, the court said that the exemption didn't violate the organizations' speech or religious rights.
As to the religious non-profits, the court said that they qualify for the accommodation by simply certifying that they object to the mandate--and that this didn't interfere with their religious or free speech rights. The court rejected the plaintiffs' arguments that the certification itself somehow implicated the organizations in providing contraception in violation of their religious rights or free speech rights. In language shy of, but no less certain than, the almost hostile ruling by Judge Posner in the Seventh Circuit rejecting a similar claim the court said,
The appellants are not required to "provide" contraceptive coverage. . . . The appellants are not required to "pay for" contraceptive coverage. . . . Moreover, the appellants are not required to "facilitate access to" contraceptive coverage. . . . Submitting the self-certification form to the insurance issuer or third-party administrator does not "trigger" contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.
The D.C. Circuit this week rejected a variety of claims by Guantanamo detainees for mistreatment by government officials and guards even after they had been cleared for release by the Combat Status Review Tribunal. The court also rejected the plaintiffs' request to remand the case to amend their complaint.
The case, Allaithi v. Rumsfeld, involved detainee claims of "forced grooming, solitary confinement, sleep deprivation, forced medication, transport in 'shackles and chains, blackened goggles, and ear coverings,' and the disruption of . . . religious practices," even after some of the plaintiffs were cleared for release by the CSRT. The plaintiffs brought claims against government officials and Guantanamo guards under the Alien Tort Statute, the Geneva Convention, the Vienna Convention on Consular Relations, the First Amendment, the Due Process Clause, and the Religious Freedom Restoration Act.
As to the ATS, the court held that the defendants were acting within the scope of their employment, which, under the Westfall Act, transforms their ATS claim into a Federal Tort Claims Act claim against the government. But the plaintiffs didn't pursue administrative remedies under the FTCA, so their case was dismissed.
As to the Vienna Convention, the court said that the Convention confers a private right of action.
As to the other, Bivens claims, the court held, citing its second Rasul ruling, that the defendants enjoyed qualified immunity, or, alternatively, that the case raised special factors counseling against a Bivens remedy.
June 11, 2014 in Cases and Case Materials, Due Process (Substantive), First Amendment, Foreign Affairs, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)
Thursday, June 5, 2014
In her relatively brief essay Hobby Lobby and the Pathology of Citizens United, available on ssrn, Professor Ellen Katz (pictured) advances a doctrinal and jurisprudential argument - - - rather than political or consequentialist ones - - - for the "danger" of Citizens United v. FEC.
Citizens United read a number of prior decisions to adopt rules those decisions deliberately chose not to espouse. This is not an entirely new move for the Court as it has previously cast off a decision’s doctrinal limits and stated normative claims. The contribution of Citizens United, however, was to normalize this stance. The Roberts Court seems increasingly comfortable approaching precedent just as it did in that case. This Essay identifies this move as a consistent practice across a number of decisions, and explains both why it is likely to be used in the pending ACA cases and beyond, and why it is cause for deep concern.
It is a phenomenon Katz labels "fanciful precedent." She contends it was operative in last Term's controversial Shelby County v. Holder.
She argues that it was prominent in Citizens United related to the Court's use of First National Bank of Boston v. Bellotti (an issue of footnotes as we discuss here and here), in a manner that might foreshadow any Robert Court opinion in Hobby Lobby "relying" on United States v. Lee and Braunfeld v. Brown.
Katz's short piece is worth a read as we await the Court's decision in Sebelius v. Hobby Lobby Stores, Inc. (and Conestoga Woods Specialties, Corp. v. Sebelius) argued in March.
Monday, June 2, 2014
The Eighth Circuit ruled in Snider v. City of Cape Girardeau that Missouri's statute banning flag desecration was facially unconstitutional. The court held that the statue was overbroad in violation of the First Amendment, and that there was no possible narrowing construction. The court also rejected the arresting officer's claim of qualified immunity.
The case arose when a Cape Girardeau police officer arrested an individual for desecrating an American flag, in violation of Missouri law. The officer made the arrest pursuant to a warrant issued by a local judge and based upon the officer's statement of probable cause to the county prosecuting attorney.
The ruling couldn't have been a surprise to anyone, except possibly the officer and the county prosecutor. (The ruling included this telling sentence: "Both Officer Peters and [the prosecuting attorney] stated that they were unaware of the United States Supreme Court's decisions in Texas v. Johnson and United States v. Eichman, which struck down statutes criminalizing flag desecration as unconstitutional.") The court ruled that Missouri's statute was facially unconstitutional under those cases.
The court also ruled that the officer did not enjoy qualified immunity. The officer argued that he should be entitled to qualified immunity, because the prosecutor and judge signed off on a warrant. He cited Messerschmidt v. Millender, where the Supreme Court granted qualified immunity to an officer who executed a search warrant unsupported by probable cause because, in part, a neutral magistrate issued the warrant.
But the Eighth Circuit noted that the Messerschmidt Court said that the neutral magistrate's involvement did "not end the inquiry into objective reasonableness." The court also noted that the standard in Malley v. Briggs survived Messerschmidt. The Malley standard says that there's no qualified immunity where "if it obvious that no reasonably competent officer would have concluded that a warrant should issue." Here, it was obvious.
The ruling upholds a lower court ruling granting attorney's fees to the plaintiff.
The United States Supreme Court denied certiorari in the closely watched case of Risen v. United States (13-1009).
Recall our analysis of the sharply divided Fourth Circuit panel opinion in United States v. Sterling, with James Risen as Intervernor, that declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.
Tuesday, May 27, 2014
Unanimous Supreme Court in Wood v. Moss: Secret Service Agents Have Qualified Immunity in First Amendment Challenge
In a relatively brief opinion in Wood v. Moss, Justice Ginsburg, writing for a unanimous Court, reversed the Ninth Circuit and held that Secret Service officers had qualified immunity in a First Amendment challenge based on viewpoint discrimination against anti-Bush demonstrators.
Recall that the challenge in Wood v. Moss involved an allegation that the Secret Service removed anti-Bush protestors to a location farther from the then-President while he ate dinner while allowing pro-Bush demonstrators to remain in their location.
The Court decided that any viewpoint discrimination was not the "sole" reason for the change in location and thus the agents had qualified immunity. The Court agreed with the agents that the map provided by the protesters, and included in the Court's opinion [image at right]
undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions. The map corroborates that, because of their location, the protesters posed a potential security risk to the President, while the supporters, because of their location, did not.
The Court rejected the protestors arguments, including the White House Manual that stated that protestors should be designated to zones "preferably not in view of the event site" and that Secret Service agents have engaged in viewpoint discrimination in the past. Here, however, the Court stressed that "this case is scarcely one in which the agents acted 'without a valid security reason.'" Emphasis in original, quoting from Brief.
While reaffirming that a Bivens action "extends to First Amendment claims" - - - a question at oral argument - - - the Court nevertheless noted that individual government officials cannot be held liable in a Bivens suit unless they themselves acted unconstitutionally:
We therefore decline to infer from alleged instances of misconduct on the part of particular agents an unwritten policy of the Secret Service to suppress disfavored expression, and then to attribute that supposed policy to all field- level operatives.
Under the Court's rationale, future Bivens claimants of First Amendment viewpoint discrimination must demonstrate that the viewpoint discrimination is the sole reason for the action by these particular (and presumably "bad apple") Secret Service agents.
While not one of the Court's more prominent First Amendment cases this Term, Wood v. Moss is important. It further narrows the space for claiming First Amendment violations by Secret Service officers - - - especially combined with the 2012 decision in Reichle v. Howards (holding that Secret Service agents had qualified immunity and rejecting the claim of retaliatory arrest for a man exercising First Amendment rights at a Dick Cheney shopping mall appearance). However, it does preserve some room for claimants to proceed (and perhaps even prevail) on a First Amendment Bivens action against individual Secret Service officers engaged in viewpoint discrimination.
Friday, May 23, 2014
Lithwick highlights the Supreme Court's recent decision in Town of Greece v. Galloway upholding the constitutionality of Christian prayers at a town board meeting and the upcoming decision in Hobby Lobby on the claims of a for-profit corporation to an exemption from the federal requirement that employer insurance coverage include contraception benefits.
She is very complimentary of the biography:
In Bruce Allen Murphy, Scalia has met a timely and unintimidated biographer ready to probe. A professor of civil rights at Lafayette College, Murphy refuses to be daunted by the silence that surrounds most discussions about religion and the Court. In his view, understanding one of the most dazzling and polarizing jurists on the Supreme Court entails, above all, examining the inevitably murky relationship between judicial decision making and religious devotion.
Indeed, she writes
Murphy does not shrink from adjudicating Scalia’s dueling public claims: that separating faith from public life is impossible and, at the same time, that he himself has done just that on the Court.
From Lithwick's review, A Court of One is a must-read this summer. But Lithwick's review is also a must-read; she conjectures that "Murphy misses the moral of his own story."
Wednesday, May 21, 2014
The Ninth Circuit yesterday rejected a challenge to California's political contribution disclosure requirement by a group of political committees that backed Prop 8, the state constitutional ballot initiative that defined marriage only as between one man and one woman. The ruling means that the California's disclosure requirement stays in place, and that Prop 8 Committees have to comply.
The Prop 8 Committees in ProtectMarriage.com v. Bowen challenged California's requirement that political committees disclose contributors who contribute more than $100, even after a campaign, arguing that some of their contributors had been harassed. The Prop 8 Committees challenged the requirement both on its face and as applied.
The court rejected the challenges. It applied the familiar "exacting scrutiny" standard to disclosures--that the requirement (and the burden it imposes) bears a "substantial relation" to a "sufficiently important" government interest. As to the facial challenge, the court said that the state obviously had sufficiently important interests in disclosure during the campaign, and that the state still had sufficiently important interests even after the campaign:
A state's interests in contribution disclosure do not necessarily end on election day. Even if a state's interest in disseminating accurate information to voters is lessened after the election takes place, the state retains its interests in accurate record-keeping, deterring fraud, and enforcing contribution limits. As a practical matter, some lag time between an election and disclosure of contributions that immediately precede that election is necessary for the state to protect these interests. In this case, for example, Appellants' contributions surged nearly 40% (i.e., by over $12 million) between the final pre-election reporting deadline and election day. Absent post-election reporting requirements, California could not account for such late-in-the-day donations. And, without such reporting requirements, donors could undermine the State's interests in disclosure by donating only once the final pre-election reporting deadline has passed.
As to the as-applied challenge, the court said they weren't justiciable: a request for an injunction to purge records of past disclosures is moot (and not capable of repetition but evading review); a request for an exemption from future reporting requirements is not ripe. Judge Wallace dissented on the as-applied challenge.
May 21, 2014 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, Jurisdiction of Federal Courts, Mootness, News, Ripeness, Speech | Permalink | Comments (0) | TrackBack (0)
Friday, May 16, 2014
The Seventh Circuit this week issued a sweeping ruling on Wisconsin's campaign finance requirements and permanently enjoined a good part of the law. The ruling in Wisconsin Right to Life, Inc. v. Barland marks the end of the second round of this broadside challenge to Wisconsin's law. The first round ended with a Seventh Circuit ruling overturning the state's $10,000 cap on contributions under the First Amendment.
The ruling this week is long and detailed. That's because Wisconsin Right to Life, Inc., a 501(c)(4) organization, challenged "a dizzying array of statutes and rules" as vague, overbroad, violative of free speech. It's also because Wisconsin law, according to the court, is "labyrinthian and difficult to decipher without a background in this area of the law," and "has not been updated to keep pace with the evolution in Supreme Court doctrine . . . ."
Portions of the ruling were unsurprising. Thus the court ruled that Wisconsin's ban on corporate speech and its cap on corporate fundraising for an unaffliated PAC violated the First Amendment under Citizens United.
Other portions required a little more work:
Disclaimer Requirement. The court held that Wisconsin's regulatory disclaimer requirement for independent political communications, as applied only to 30-second radio ads (because that's all that was challenged), was unconstitutional. Wisconsin law required a certain disclaimer, but regulations went 50 words beyond that disclaimer, adding nothing to it, with no apparent good reason, and cutting into ad time.
Definitions of "political purposes" and "political committee." The court ruled that the statutory definition of "political purposes" and the regulatory definition of "political committee," which trigger certain registration, reporting, and disclosure requirements, were unconstitutionally vague and overbroad, imposing PAC duties on nearly any political communication. The court gave Wisconsin law a narrowing construction, ruling that "[a]s applied to political speakers other than candidates, their campaign committees, and political parties, the definitions are limited to express advocacy and its functional equivalent as those terms were explained in Buckley and Wisconsin Right to Life II."
PAC Registration and Reporting Requirements. The court ruled that the Wisconsin regulation that treats issue advocacy during the preelection period as fully regulable express advocacy if it mentions a candidate is unconstitutional. It also ruled that the regulation that "imposes PAC-like registration, reporting, and other requirements on all organizations that make independent disbursements, is unconstitutional as applied to organizations not engaged in express advocacy as their major purpose."
In short, the court said that the Wisconsin legislature failed to keep up with changes in the doctrine--in particular, the change that Citizens United wrought--and that the Wisconsin Government Accountability Board's attempts to fill in the gaps through regulations simply swept too broadly.
The court's ruling directs the lower court to permanently enjoin the above-mentioned provisions. The ruling is a sharp kick in the pants to the Wisconsin state legislature to update its campaign finance law.
Thursday, May 15, 2014
Can a tenured professor, serving as a dean (or executive director) of the university's school of public health be terminated for publicly criticizing the university's restructuring plans?
This does not involve the new Kansas social media policy for academics, but the question that arose at the University of Saskatchewan this week; there's a good overview and links to the letter itself in this article from the Globe & Mail.
For Americans the situation seems close to the famous letter to the editor protected by the First Amendment in Pickering v. Board of Education. But recall Mr. Pickering was merely a teacher while Professor Buckingham at University of Saskatchewan was a dean charged with implementing the very policies he was criticizing, a situation akin to the one the Sixth Circuit confronted in Dixon v. University of Toledowhen considering a university human resources officer who made public statements inconsistent with the university's anti-discrimination policy that she had to enforce.
In recognition of this distinction, it seems now Buckingham has only been relieved of his duties as an administrator and may return to campus, seemingly complete with tenure.
Canadian ConLawProf Michael Plaxton (at the University of Saskatchewan) has a nuanced discussion in the Globe and Mail today.
Prompted by an incident last September involving the tweet of a journalism professor at the University of Kansas linking the NRA's Second Amendment advocacy to a gun shooting that left thirteen people dead - - - and the university's strong reaction to it - - - the Kansas Board of Regents engaged in a reconsideration of its "social media" policy.
An amended policy has finally been adopted.
It includes suggestions of a workgroup emphasizing academic freedom and the First Amendment.
Additionally, the new policy also attempts to digest the current state of First Amendment law:
3. The United States Supreme Court has held that public employers generally have authority to discipline their employees for speech in a number of circumstances, including but not limited to speech that:
i. is directed to inciting or producing imminent violence or other breach of the peace and is likely to incite or produce such action;
ii. when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the employer;
iii. discloses without lawful authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data; or
iv. subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the employer, or otherwise adversely affects the employer's ability to efficiently provide services.
In determining whether an employee’s communication is actionable under subparagraph iv, the interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern.
While the policy may be a fair attempt to articulate Garcetti v. Ceballos, such an articulation does little to clarify the rights of publicly employed academics to speak - - - on social media or otherwise - - - about controversial issues. The current case before the United States Supreme Court, Lane v. Franks, is not likely to address the broader issues.
Returning to the journalism professor's tweet, now that there is an amended policy, is it any more clear that he could (or could not) be disciplined? Or will the policy merely chill speech?
Tuesday, May 13, 2014
Promoting his new book, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State,
Glenn Greenwald appeared on The Colbert Report.
Here's a video excerpt, worth a watch:
Thursday, May 8, 2014
The Seventh Circuit yesterday stayed Judge Randa's ruling preliminarily enjoining further criminal investigation into political spending by the Wisconsin Club for Growth and its director, Eric O'Keefe. We posted on Judge Randa's ruling here.
The Seventh Circuit said that because the defendants filed a notice of appeal before Judge Randa issued his injunction, Judge Randa had to show that the appeal was frivolous before acting. This he did not do. Here's from the short opinion:
Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), holds that, once a litigant files a notice of appeal, a district court may not take any further action in the suit unless it certifies that the appeal is frivolous. The district court failed to follow that rule when, despite the notice of appeal filed by several defendants, it entered a preliminary injunction. This court accordingly stays the injunction, and all further proceedings in the district court, until the judge has ruled definitively on the question posed by Apostol.
The ruling puts the ball back in Judge Randa's court, allowing him to certify that the appeal is frivolous and resume the case there. If he does not, then proceedings in the district court are stayed pending appeal on the merits.
The Seventh Circuit also stayed the portion of Judge Randa's ruling that required the defendants to return or destroy documents "as long as proceedings continue in this court."
Wednesday, May 7, 2014
Judge Rudolph T. Randa (E.D. Wis.) this week granted a preliminary injunction against a criminal investigation into political spending by the Wisconsin Club for Growth and its director, Eric O'Keefe. The criminal investigation sought information related to WCFG's coordination with Governor Walker's campaign committee and other 501(c)(4) groups, in violation of Wisconsin law, to promote the passage of Wisconsin Act 10, Governor Walker's (successful) effort to sharply restrict union strength in the state (among other things). Judge Randa's ruling means that the investigation must stop, at least for now.
The ruling is just the latest chapter in a long-running story involving Wisconsin Act 10, Governor Walker, and advocacy (and spending) around both.
Judge Randa ruled that the investigation violated free speech, because it "was commenced and conducted 'without a reasonable expectation of obtaining a valid conviction.'" According to Judge Randa, that's because it was based on an interpretation of Wisconsin law that would have banned coordination on issue advocacy (and not candidate contributions)--something that the First Amendment does not allow.
Judge Randa said that WCFG's issue advocacy was core political speech, and that its coordination with other 501(c)(4)s, and even with the Friends of Scott Walker, did not raise any risk of quid quo pro corruption. Therefore the state could not criminalize it.
Judge Randa rejected the defendants' argument that WCFG's coordination with Governor Walker's campaign created a quid pro quo problem. He said that that approach "would mean transforming issue advocacy into express advocacy by interpretative legerdemain and not by any analysis as to why it would rise to the level of quid pro quo corruption." He said WCFG simply held the same views that Governor Walker already held, and that therefore there was no risk of corruption.
Judge Randa cited McCutcheon throughout and made a special point of quoting Justice Thomas's concurrence on Buckley's demise:
Buckley's distinction between contributions and expenditures appears tenuous. As Justice Thomas wrote, "what remains of Buckley is a rule without a rationale. Contributions and expenditures are simply 'two sides of the same First Amendment coin,' and our efforts to distinguish the two have produced mere 'word games' rather than any cognizable principle of constitutional law." Even under what remains of Buckley, the defendants' legal theory cannot pass constitutional muster. The plaintiffs have been shut out of the political process merely by association with conservative politicians. This cannot square with the First Amendment and what it was meant to protect.
Op. at 25.