Thursday, August 27, 2015

Sixth Circuit Refuses Stay in Ketucky Court Clerk Case

The Sixth Circuit's brief  Order in Miller v. Davis refused to stay the district court's preliminary injunction mandating that a court clerk in Kentucky issue same-sex marriage licenses (or any marriage licenses) despite her claim of free exercise of religion.

Here's the essence of the Sixth Circuit panel opinion:

The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court. There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal.

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This should be the end of this litigation?

August 27, 2015 in Current Affairs, Family, First Amendment, Fourteenth Amendment, Opinion Analysis, Sexual Orientation | Permalink | Comments (0)

Monday, August 24, 2015

Seventh Circuit Finds No Valid Constitutional Claims in School Bullying Lawsuit

Affirming the district court's grant of summary judgment in favor of the schools, the Seventh Circuit's brief opinion today in D.S. v. East Porter County Schools Corporation is an illustration of the difficulty of succeeding with constitutional claims based on bullying, even when claims of school officials participation are included.

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"Dealing with Bullies" artwork by Karbo via

In considering the Due Process claim, the unanimous Seventh Circuit panel began with the principle that the Due Process Clause "generally does not impose upon the state a duty to protect individuals from harm by private actors," predictably citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.(1989).  The court noted that there are two exceptions: special relationship and state-created danger.  The plaintiff argued that the school officials created the risk - - - or increased the risk - - - that she would be bullied, but the court found that the record did not support a finding that the school officials' conduct met the "requisite level of egregiousness" to satisfy the claim.

In considering the Equal Protection Clause claim, the court stated that the plaintiff must show that the schools "acted with a nefarious discriminatory purpose and discriminated against her based on her membership in a definable class."  Unlike the landmark Seventh Circuit case of  Nabozny v. Podlesny (7th Cir. 1996), which the court cites here, the plaintiff does not rely on sexual orientation or any other "protected class," but proceeded on a "class-of-one" theory.  The court found the plaintiff "failed to identify any similarly situated individuals who were treated differently." 

Without a valid Due Process Clause or Equal Protection Clause claim under the Fourteenth Amendment, the court found there was no underlying constitutional violation on which the plaintiff could proceed.

August 24, 2015 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)

Sunday, August 23, 2015

D.C. District Applies Reporter's Privilege to Non-Confidential Information

Judge Amit Mehta (D.D.C.) on Friday granted a reporter's motion to quash a subpoena by a drug manufacturer for non-confidential information related to the reporter's article recounting a critical study on one of the manufacturer's cancer drugs. (This was a bit piece of a larger shareholder class-action against the manufacturer, Amgen.)

The ruling applied the reporter's privilege under the First Amendment to non-confidential information in a civil suit. That part of the ruling aligns with other circuits that have ruled on the issue, even though the D.C. Circuit has yet to rule on it.

Judge Mehta also concluded that Amgen did not sufficiently seek the information through other sources before it issued its subpoena to reporter Paul Goldberg.

August 23, 2015 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, August 19, 2015

Missouri Court Upholds Ban on Felon Gun Possession

The Missouri Supreme Court ruled this week that the state's ban on felon gun possession did not violate the state constitutional right to bear arms. The ruling is notable, because it applied strict scrutiny, but nevertheless upheld the gun possession restriction.

The Missouri Constitution, article I, section 23, read as follows (at the time of the defendant's conviction for possessing a gun in violation of the state's ban on felon possession):

That the right of every citizen to keep and bear arms in defense of his home, person, and property, or when lawfully summoned in aid of the civil power, shall not be questions; but this shall not justify the wearing of concealed weapons.

But the provision was amended during the appeal. The amended provision added "ammunition, and accessories typical to the normal functioning of such arms" to the right to keep and bear arms; it added "family" to the list of things that a citizen can bear arms to protect; it struck the limitation on concealed carry; and it added language strengthening the right (explicitly subjecting it to strict scrutiny), but permitting restrictions on felons and individuals adjudicated by a court to be a danger to self or others because of a "mental disorder or mental infirmity."

Still, the court said that the previous provision applied, because the defendant was convicted before the amendment took force.

The court held that under article I, section 23, strict scrutiny applied to restrictions on gun possession. But the state's ban on felon possession satisfied even that highest level of constitutional review:

The State has a compelling interest in ensuring public safety and reducing firearm-related crime. Prohibiting felons from possessing firearms is narrowly tailored to that interest because "[i]t is well-established that felons are more likely to commit crimes than are other law abiding citizens."

The ruling means that there are possession restrictions that satisfy strict scrutiny under Missouri state con law--at least the old Missouri state con law. It's not clear how far this might extend, however, given that the new version of article I, section 23, goes to lengths to specify that strict scrutiny applies to possession restrictions and lists just two specific exceptions.

August 19, 2015 in Cases and Case Materials, Comparative Constitutionalism, News, Opinion Analysis, Second Amendment, State Constitutional Law | Permalink | Comments (0)

Divided D.C. Circuit Again Finds Conflict Minerals Disclosure Violates the First Amendment

In its opinion on rehearing, a divided panel of the DC Circuit in National Association of Manufacturers v. Securities and Exchange Comm'n has held that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring a company to disclose if its products were not "DRC conflict free" violated the First Amendment. 

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Rough diamonds from DRC via

In its previous decision more than a year ago in National Association of Manufacturers (NAM),  a majority of the same panel, in an opinion authored by Senior Judge Raymond Randolph and joined by Senior Judge David Sentelle, found the conflict mineral disclosure was a First Amendment violation.  In that 2014 opinion, Judge Srinivasan dissented on the First Amendment issue and contended that this opinion should be held in abeyance "pending the en banc court’s decision" in American Meat Institute v. United States Dep't of Agriculture, regarding a  First Amendment challenge to requiring country of origin labeling (COOL) of meat and meat products.  In the DC Circuit's en banc opinion a year ago, a divided court upheld the constitutionality of the COOL requirements.  The rehearing of the conflict minerals disclosure was prompted by that intervening en banc decision in American Meat Institute (AMI).  The panel majority essentially concluded that its mind was not changed by en banc opinion. [Neither of the senior judges in the panel majority participated in the en banc opinion in AMI].

Central to the controversies in both NAM and AMI is a choice of precedent: should the constitutionality of the labeling requirements be analyzed under  Zauderer v. Office of Disciplinary Counsel  or under the more demanding standard of Central Hudson v. Gas & Electric Corp. v. Public Service Commission of New York.  The DC Circuit's divided en banc opinion in AMI found that Zauderer should be applied.  In this rehearing in NAM, the panel majority (again) found that Zauderer had no applicability, but, as the opinion states, "for a different reason."  However, in sum this panel majority found that Zauderer is limited to "advertisements" at point of sale and seemed to contradict AMI.     

The panel majority did "hedge its bets":

But given the flux and uncertainty of the First Amendment doctrine of commercial speech,15 and the conflict in the circuits regarding the reach of Zauderer,  we think it prudent to add an alternative ground for our decision. It is this. Even if the compelled disclosures here are commercial speech and even if AMI’s view of Zauderer governed the analysis, we still believe that the statute and the regulations violate the First Amendment.

In applying Central Hudson, the panel majority found that the disclosure of conflict minerals has a merely speculative relationship to addressing the interest of the government in ameliorating conflict in the Democratic Republic of the Congo as a source of such minerals.  Instead, the disclosure is akin to political propaganda.  The majority interestingly cites George Orwell's Nineteen Eighty-Four for its passages regarding government redefinition ("WAR IS PEACE"), and concludes that the disclosure is not only not factual but also controversial: it compels "an issuer to confess blood on its hands." 

In dissent, Judge Srinivasan argues that any Scarlet Letter comparison is inapt: "requiring a company to disclose product information in the commercial marketplace is not the same as requiring Hester Prynne to “show [her] scarlet letter in the [town] market- place.”  He asserts that the majority is misreading Zauderer and that the en banc opinion in AMI controls.  Interestingly, he also contends that to the extent the court is requiring "proof" that disclosure of conflict minerals be linked to amelioration of the DRC conflict, the court should be deferring to executive judgments in this commercial context at least as much as the Court did in the political speech context involved in Holder v. Humanitarian Law Project. 

It seems likely that government attorneys are preparing its en banc petition. 

August 19, 2015 in Cases and Case Materials, Courts and Judging, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Tuesday, August 18, 2015

Texas Rolls Dice, and Loses Attorneys' Fees in Voting Rights Case

The D.C. Circuit today upheld the district court's award of over a million dollars in attorneys fees to three intervenors in Texas's lawsuit seeking preclearance for its re-drawn legislative maps under Section 5 of the Voting Rights Act.

The ruling is a significant victory for the intervenors in this complicated case that involved challenges to Texas's redistricting maps in two simultaneous lawsuits under two different provisions of the VRA, Supreme Court intervention, and the Shelby County case itself.

Recall that the Fifth Circuit rejected claims for attorneys' fees in the companion case out of San Antonio just last spring.

The case started when Texas re-drew its congressional and state legislative districts after the 2010 census. Texas sought preclearance in the D.C. District, while opponents of the new maps filed their own Section 2 claim in the Western District of Texas (the San Antonio case).

Because the preclearance suit was not resolved in time for the 2012 primaries and general election, the San Antonio court imposed interim maps. The D.C. district court then denied preclearance (to all three maps--congressional, and both state house maps), and Texas appealed to the Supreme Court. Meanwhile, the Texas legislature adopted maps largely mirroring the San Antonio court's maps, and an intervenor moved the Supreme Court to dismiss the appeal as moot.

The Supreme Court then issued Shelby County, striking the VRA's Section 4, the coverage formula, but preserving Section 5's preclearance requirement (although it had (and has) no effect without Section 4's coverage formula).

One day later, Governor Perry signed the legislature's plans into law.

The Supreme Court then vacated the D.C. district court's order denying preclearance and "remanded for further consideration in light of Shelby County v. Holder * * * and the suggestion of mootness" of one of the intervenor groups.

The district court dismissed the case, concluding that Texas's "claims were mooted by Shelby County and the adoption of superseding redistricting plans."

The internors filed for attorneys' fees, arguing that they were "prevailing parties," because the original district court denied preclearance and Texas re-drew its maps. Texas filed a three-page "Advisory" declaring that it was the prevailing party based on Shelby County and that it wouldn't respond to the intervenors' motions for attorneys' fees "unless directed to do so by the Court."

In short, the state said that Shelby County (a different case entirely, litigated by different parties, and involving issues (the constitutionality of the VRA, which was not at issue in the Texas preclearance case) alone meant that Texas prevailed in its preclearance case. But Texas did not respond to the intervenors' argument that Texas's repeal of its original maps, and the mootness it caused before the Supreme Court vacated the denial of preclearance, rendered them prevailing parties.

Texas's move was a gamble, especially in light of district rules saying that an opponent to a motion has to file an opposition and that the court could treat any argument not made as conceded. 

The district court rejected Texas's "Advisory" and ordered attorneys' fees. The D.C. Circuit today affirmed.

The D.C. Circuit held that Texas was wrong on its Shelby County claim--that Shelby County alone couldn't make Texas a prevailing party in its Section 5 case--and that under district rules Texas waived any argument that the intervenors didn't prevail by virtue of the district court's denial of preclearance and Texas altering its maps.

In other words, Texas's gamble in filing its "Advisory," and then again in not addressing the arguments in its opening brief on appeal, backfired.

The ruling upholds the district court's award of attorneys' fees to the Davis Intervenors ($466,680.36), the Gonzales Intervenors ($597,715.60) and the Texas State Conference of NAACP Branches ($32,374.05).

August 18, 2015 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis | Permalink | Comments (0)

Kentucky Court Clerk's "No Marriage License Policy" Going to Sixth Circuit

A few months after the United States Supreme Court issued its decision in Obergefell v. Hodges, reversing the Sixth Circuit's opinion, and declaring that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the issue of same-sex marriage is again reaching the Sixth Circuit. 

This time, however, the issue is whether a government employee, a court clerk in Kentucky, can refuse to issue same-sex marriage licenses - - - or any marriage licenses - - - based upon a claim of free exercise of religion.  The claim of religious exemptions from state clerks is not new (consider events in New York in 2011); neither are objections to implementing the Court's decision in Obergefell (consider events in Alabama this summer).  Nevertheless, this controversy has become particularly focused.

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United States District Judge David Bunning's Opinion and Order last week in Miller v. Davis issued a preliminary injunction in favor of April Miller and Karen Roberts, enjoining Rowan County Clerk Kim Davis from applying the "no marriage licenses" policy.  The Judge rejected Davis' First Amendment claims.  First, Judge Bunning found that Governor Beshear's directive to county clerks to issue same-sex marriage licenses was a general law of neutral applicability that "likely does not infringe on Davis' free exercise rights."  Second, Judge Bunning further found that the issuance of the marriage license did not implicate Davis' free speech rights: the issuance of the license, even with the clerk's certification, is not an endorsement and furthermore is quite possibly government rather than individual speech, citing the Court's decision in Walker v. Sons of Confederate Veterans from last Term.  Judge Bunning also rejected Davis' third  - and perhaps the most interesting - claim based upon Article VI §3 prohibiting a "religious Test" as a qualification for public office.  Davis argued that this prohibition meant that her religious beliefs must be accommodated.  Even as he rejected this interpretation, Judge Bunning drew attention to the "first half" of Article VI §3 requiring state officials to take an oath to defend the United States Constitution. 

Davis predictably sought a stay of the preliminary injunction.  In an Order late yesterday, Judge Bunning denied the stay, including in his 7 page opinion an extensive quote from Obergefell regarding the relationship of religious freedom to same-sex marriage.  Yet Judge Bunning did stay the order denying the stay:

in recognition of the constitutional issues involved, and realizing that emotions are running high on both sides of the debate, the Court finds it appropriate to temporarily stay this Order pending review of Defendant Davis’ Motion to Stay (Doc. # 45) by the Sixth Circuit Court of Appeals.

While decisions to stay and to issue preliminary injunctions involve equitable and other factors, of central prominence is the probable outcome on the merits.  Thus, the Sixth Circuit is again poised to consider, albeit less directly, the issue of same-sex marriage. 

August 18, 2015 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Interpretation, Opinion Analysis, Religion, Sexual Orientation, Speech | Permalink | Comments (0)

Wednesday, August 12, 2015

PETA Has Standing to Challenge Agency Inaction on Bird Regulation

The D.C. Circuit ruled this week in PETA v. USDA that the animal-rights organization had standing to challenge the USDA's decade-long foot-dragging in regulating birds under the Animal Welfare Act. But at the same time, the court ruled against PETA on the merits. The case means that PETA's claim is dismissed; it's a significant set-back in the effort to get the USDA to regulate birds under the AWA.

PETA alleged that the USDA violated the Administrative Procedure Act by failing to write avian-specific animal welfare regulations under the AWA. PETA argued that the agency "unlawfully withheld" action in violation of section 706(1) of the APA. The USDA moved to dismiss for lack of standing and on the merits.

The D.C. Circuit ruled that PETA had organizational standing, because the USDA's inaction prevented PETA from protecting birds. The court explained:

Because PETA's alleged injuries--denial of access to bird-related AWA information including, in particular, investigatory information, and a means by which to seek redress for bird abuse--are "concrete and specific to the work in which they are engaged," we find that PETA has alleged a cognizable injury sufficient to support standing. In other words, the USDA's allegedly unlawful failure to apply the AWA's general animal welfare regulations to birds has "perceptibly impaired [PETA's] ability" to both bring AWA violations to the attention of the agency charged with preventing avian cruelty and continue to educate the public. Because PETA has expended resources to counter these injuries, it has established Article III organizational standing.

But even as the court said that PETA had standing, it ruled in favor of the USDA on the merits. The ruling means that PETA's complaint against the agency is dismissed.

August 12, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Tuesday, August 11, 2015

No Appointments Problem with Re-Constituted Board's Copyright Ruling

The D.C. Circuit ruled that the new Copyright Royalty Board, reconstituted after the court previously held that the old Board violated the Appointments Clause, did not itself violate the Appointments Clause after it came to the same decision as the old Board using the same record. The ruling upholds the new Board's decision to impose a $500 per station or per channel annual minimum fee for collegiate Internet radio stations.

The Copyright Royalty Board was originally composed of three Copyright Royalty Judges who were appointed by the Librarian of Congress and could only be removed for cause. The Board imposed the $500 fee on webcasters in 2011. Intercollegiate Broadcasting System, a nonprofit that represents college and high school radio stations, challenged the fee, arguing that the Board violated the Appointments Clause. The D.C. Circuit agreed, ruling that the judges had sufficient authority and independence to qualify as principal officers, thus requiring Presidential appointment and Senate confirmation. The court cured the defect by severing the statutory provision that barred the Librarian of Congress from removing the judges without cause.

The Librarian then replaced the Board with new members. The new Board decided to re-determine the copyright terms based on the existing record (the one that the parties established with the original Board) and to review the record de novo. The new Board issued the same $500 fee, and Intercollegiate again appealed.

This time Intercollegiate argued that the new Board was tainted by the old Board's decision, and thus the new Board also violated the Appointments Clause. The court flatly rejected this argument. Among other things, the court noted that the parties themselves set the record with the old Board, and the new Board re-decided the case on its own terms, without taint from the original Board.

The ruling is consistent with circuit law that a body reconstituted to comply with the Appointments Clause does violate the Appointments Clause simply because the original body did.

August 11, 2015 in Appointment and Removal Powers, Cases and Case Materials, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Saturday, August 8, 2015

Second Circuit is Latest Court to Reject Challenge to Contraception Mandate Accommodation

The Second Circuit this week became the latest court to reject religious organizations' challenge to the religious accommodation to the ACA's contraception mandate. The Second Circuit joined six other circuits in rejecting the surprising claim that a barely burdensome religious accommodation itself violates the Religious Freedom Restoration Act.

We posted most recently on the Tenth Circuit's ruling here.

With seven circuits now rejecting the novel claim (with no circuit accepting it), and with the accommodation designed around a Supreme Court order, one might reasonably wonder why plaintiffs keep bringing and appealing these cases. Surely they have better things to do with their time and money than to bring such transparently harassing and abusive claims. (Indeed, one might wonder: At what point should a court consider Rule 11 sanctions?) Still . . . .

The Second Circuit ruling is comprehensive and well analyzed, concluding that the accommodation (to simply notify HHS, either by form, or by letter) isn't substantially burdensome. But after 47 pages, here's the gist:

The burden that the accommodation places on Plaintiffs is merely one notification, equivalent to the burden historically placed on draft registrants to indicate their conscientious objections to military service. Once Plaintiffs avail themselves of the simple, non-burdensome means of opting out, the regulations do not require them to play any role in the provision of contraceptive coverage or to suffer punishments for not doing so. To the contrary, the accommodation relieves them of providing contraceptive coverage, and instead enlists third-party administrators to provide such coverage. If a regulatory scheme that might otherwise violate an objecting individual's rights under RFRA allows the objector to exempt himself from compliance via a simple, non-burdensome act of notification, there is no substantial burden. Furthermore, subsequent regulation of non-objecting parties in a manner that an objecting party finds offensive does not transform the act of opting out into a cognizable substantial burden. The rights conferred by the First Amendment and RFRA do not include a right to have the government or third parties behave in a manner that comports with an individual's religious beliefs.

August 8, 2015 in Cases and Case Materials, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Wednesday, August 5, 2015

D.C. Circuit Rebuffs Challenge to NLRB for Expired Appointment

The D.C. Circuit ruled in Dodge of Naperville v. NLRB that the NLRB's finding of an unfair labor practice against the petitioner was valid, and that the Board didn't lack quorum to act in the waning days of Member Craig Becker's recess appointment.

The ruling means that the NLRB's finding stands.

The petitioners challenged the NLRB finding on the merits and based on the NLRB's lack of quorum at the time it issued its finding. As to the latter, the petitioners argued that the NLRB had only two members (one shy of quorum) when it issued its opinion on January 3, 2012, because the appointment of Member Becker (who was recess appointed in the second session of the 111th Congress) expired on December 17, 2011. That's the date when the Senate agree to adjourn and convene for pro forma sessions only every Tuesday and Friday until January 23, 2012.

But the court flatly rejected this argument. The court said that Member Becker's appoint was valid until "the end of their next session"--that is, until noon on January 2, 2012.  The court, citing Noel Canning, said that "the end of an annual session is triggered by a recess only if the Senate adjourns sine die--that is, without specifying a date to return." But under the Senate's adjournment plan, the body convened every few days after December 17, making the short breaks between meetings intra-session recesses--and not end-points for the prior session.

The court rejected the petitioners' argument that maybe the Board's opinion issued after noon on January 3, because the petitioner only raised this point for the first time on reply.

August 5, 2015 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, August 3, 2015

District Judge Holds Idaho's Ag-Gag Law Unconstitutional

Chief Judge B. Lynn Winmill for the United States District of Idaho today held Idaho's so-called "Ag-Gag" law, Idaho Code § 18-7042, unconstitutional in his  opinion in Animal Defense League v. Otter.  Judge Winmill found that the law violated both the First Amendment and the Equal Protection Clause.

The Idaho statute creates a new crime, “interference with agricultural production.” I.C. 18-7042. A person commits the crime of interference with agricultural production if the person knowingly:

(a) is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;

(b) obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;

(c) obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility's operations . . .

(d) Enters an agricultural production facility that is not open to the public and, without the facility owner's express consent or pursuant to judicial

process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility's operations; or

(e) Intentionally causes physical damage or injury to the agricultural production facility's operations, livestock, crops, personnel, equipment, buildings or premises.

Chief Judge Winmill described the legislative history including statements that compared animal rights investigators to “marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.”  However, for Winmill, there is a better comparison:

450px-The_Jungle_by_Upton_SinclairThe story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating exposé of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act. National Meat Ass'n v. Harris, 132 S.Ct. 965 (2012). Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042.

On the First Amendment challenge, the judge found that Idaho's ag-gag statute is content based and merits strict scrutiny.  The opinion revisits an earlier ruling so concluding to reiterate that the United States Supreme Court's opinion in United States v. Alvarez ("the stolen valor case").  Judge Winmill notes that any deception involved in the ag-gag violation would be not be harmful: "the most likely harm that would stem from an undercover investigator using deception to gain access to an agricultural facility would arise, say, from the publication of a story about the facility, and not the misrepresentations made to gain access to the facility."  And "harm caused by the publication of true story is not the type of direct material harm that Alvarez contemplates."  The judge also held that the recording provision is content-based.

Moreover, Judge Winmill implicitly determines that the law is viewpoint-based:

a review of § 18-7042’s legislative history leads to the inevitable conclusion that the law’s primary purpose is to protect agricultural facility owners by, in effect, suppressing speech critical of animal-agriculture practices.

Not surprisingly, the statute does not survive strict scrutiny.  The judge is skeptical that the "property and privacy interests of agricultural production facilities" are sufficiently compelling given that food production is a heavily regulated industry.  Even if the interests were compelling, however, the statute was not narrowly tailored:

Criminal and civil laws already exist that adequately protect those interests without impinging on free-speech rights. It is already illegal to steal documents or to trespass on private property. In addition, laws against fraud and defamation already exist to protect against false statements made to injure or malign an agricultural production facility.

The judge thus concludes that the law restricts more speech than is necessary to achieve its goals.

On the Equal Protection Clause issue, the court's conclusion does not depend on a strict scrutiny analysis.  The judge finds that the ag-gag statute cannot satisfy even rational basis review.  First, Judge Winmill finds that that state's purported interest is not legitimate:

The State argues that agricultural production facilities deserve more protection because agriculture plays such a central role in Idaho’s economy and culture and because animal production facilities are more often targets of undercover investigations. The State’s logic is perverse—in essence the State says that (1) powerful industries deserve more government protection than smaller industries, and (2) the more attention and criticism an industry draws, the more the government should protect that industry from negative publicity or other harms. Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.

 Second, the judge finds that the actual interest is a “a bare congressional desire to harm a politically unpopular group" and thus  "cannot constitute a legitimate governmental interest if equal protection of the laws is to mean anything,” quoting and relying on U. S. Dept. of Agriculture v. Moreno (1973).  "As a result, a purpose to discriminate and silence animal welfare groups in an effort to protect a powerful industry cannot justify the passage" of the statute.

Judge Winmill's decision is ground-breaking.  So-called "ag-gag" laws have proliferated and are being challenged, usually on First Amendment grounds.  Undoubtedly the state will appeal and the Ninth Circuit will have a chance to decide whether  Judge Winmill was correct that the Idaho law is similar to the day labor solicitation prohibition in Arizona's SB1070 that the Ninth Circuit held unconstitutional in Valle Del Sol Inc. v.Whiting.

 UPDATE: Check out this analysis by ConLawProf Shaakirrah Sanders over at casetext and her pre-decision discussion about the case with Idaho Public Radio.

August 3, 2015 in Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Thursday, July 30, 2015

Southern District Rebuffs Citizens United's Speech Claim

Judge Sidney Stein (SDNY) this week denied Citizens United's motion to preliminarily enjoin the New York Attorney General from enforcing his policy of requiring registered charities to disclose the names, addresses, and total contributions of their major donors.

The ruling, which follows a similar Ninth Circuit ruling this past spring, is a blow to the organization's efforts to keep their donors secret through the 501(c) form. But it does not mean that Citizen United's donors will be available to all of us: both the IRS and the state AG refuse to disclose the names of donors.

The case tests the AG's rule that charities registered in the state provide to the state AG their Schedule B to IRS Form 990. Schedule B includes names of persons who donate over $5,000 to a charity. Citizens United, a 501(c) organization, challenged the rule, arguing that it violated free speech, and due process, among other claims, and filed for a preliminary injunction.

Judge Stein rejected the motion, saying that Citizens United was unlikely to win on the merits. As to the free speech claim, Judge Stein wrote that the AG's rule bears a substantial relation to the sufficiently important government interest in enforcing charitable solicitation laws and protecting state residents from illegitimate charities, and that the strength of the state's interest justified the minimal burden on the organization. Judge Stein also concluded that the rule was not an unconstitutional prior restraint on speech, because the rule "sets forth 'narrow, objective, and definite standards' that cabin the Attorney General's exercise of discretion.'" Finally, Judge Stein rejected Citizens United's claim that the rule came without warning and thus violated due process, because in fact the rule did nothing new. (Judge Stein also rejected the non-constitutional claims.)

But while Judge Stein's ruling rejected Citizens United's motion to stop the state AG from enforcing the rule for now, nothing in the ruling compels the public release of the organization's major donors. Indeed, the ruling hinges on the fact that New York law and IRS regs both bar the public release of Schedule B. The ruling only allows the state AG to collect this information for the purpose of ferreting out charitable fraud and related crimes.

July 30, 2015 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, July 22, 2015

Eighth Circuit Finds North Dakota's "Heartbeat" Abortion Prohibition Unconstitutional

A unanimous panel of the Eighth Circuit, affirming the district judge, found that North Dakota's abortion regulation based on a "detectable heartbeat" is unconstitutional in its opinion in MKB Management Corp. v. Stenehjem. 

North Dakota's 2013 House Bill 1456, codified at N.D. Cent. Code § 14-02.1, mandates physicians determine whether the "unborn child" has a "detectable heartbeat," and if so, makes it a felony for a physician to perform an abortion.  The medical evidence submitted was that a "detectable heartbeat" occurs when a woman is about six weeks pregnant.

LogoThe court held that a woman's constitutional right to terminate a pregnancy before fetal viability is binding United States Supreme Court precedent, quoting language from Gonzales v. Carhart (2007): "Before viability, a State 'may not prohibit any woman from making the ultimate decision to terminate her pregnancy.'” 

However, the Eighth Circuit opinion noted that while it could not depart from the current state of protection of the right to abortion, the United States Supreme Court should reconsider the issue.  Essentially, the Eighth Circuit opinion argues that "developments in the unborn" should shift the balance to the ability of the states - - - and not the courts - - - to protect the unborn and assert the interest in "potential life."  The court's opinion also discussed the controversial findings that women who have had abortions suffer from emotional ills including regret, as well as repeating evidence that "some studies support a connection between abortion and breast cancer."  The court thus concludes, "the continued application of the Supreme Court’s viability standard discounts the legislative branch’s recognized interest in protecting unborn children."

Nevertheless, the opinion clearly finds the North Dakota law unconstitutional.

July 22, 2015 in Abortion, Courts and Judging, Due Process (Substantive), Family, Fundamental Rights, Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0)

Saturday, July 18, 2015

Wisconsin Supremes End Walker Campaign Finance Investigation

The Wisconsin Supreme Court ruled this week that a special prosecutor's reading of Wisconsin's campaign finance rules in the investigation into illegal coordination between "independent" organizations and Governor Scott Walker's campaign violated the First Amendment. The ruling ends the investigation into the alleged coordination. It also opens the spigot for coordinated expenditures between outside organizations and campaigns on all but express advocacy for the election or defeat of a particular candidate.

The special prosecutor alleged that that the Walker campaign coordinated with outside organizations on issue advocacy in the recall elections related to Wisconsin Act 10, the bill that sharply curtailed public sector union rights in Wisconsin. In particular, the prosecutor alleged that the coordination was so extensive that the outside organizations became subcommittees of Walker's campaign under Wisconsin law, and that the outside organizations' coordinated issue advocacy amounted to a contribution to the Walker campaign--all in violation of Wisconsin law.

But all this turned on whether the advocacy was for "political purposes." Wisconsin law defines "political purposes" as an act

done for the purpose of influencing the election or nomination for election of any individual to state or local office, for the purpose of influencing the recall from or retention in office of an individual holding a state or local office, for the purpose of payment of expenses incurred as a result of a recount at an election, or for the purpose of influencing a particular vote at a referendum. . . .

(a) Acts which are done for "political purposes" include but are not limited to:

1. The making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate or a particular vote at a referendum.

In short, the special prosecutor claimed that the coordination was for "political purposes," and therefore illegal.

The Wisconsin Supreme Court ruled that the definition of "political purposes" (and, in particular, the phrase "influencing [an] election") was unconstitutionally vague and overbroad, in that it potentially banned coordination on issue advocacy (and not just express advocacy for the election or defeat of a candidate). "The lack of clarity in [the definition], which the special prosecutor relies on, leads us to the unsettling conclusion that it is left to the government bureaucrats and/or individual prosecutors to determine how much coordination between campaign committees and independent groups is "too much" coordination." The court gave the definition a narrowing construction that limited the definition of "political purposes" to include only express advocacy for the election or defeat of a candidate (and not issue advocacy).

The opinion drew a sharp dissent, which argued that the ruling limited the state's campaign finance regulations beyond what the Supreme Court required and, in doing so, opened up a free-for-all on spending and coordination between "independent" groups and campaigns on issue advocacy.

According to the United States Court of Appeals for the Seventh Circuit, no opinion of the United States Supreme Court or a federal court of appeals has established that the First Amendment forbids regulation of, or inquiry into, coordination between a candidate's campaign committee and issue advocacy groups. In repeatedly and single-mindedly declaring a rule that federal case law has declined to adopt, the majority opinion betrays its results-oriented, agenda-driven approach.

July 18, 2015 in Campaign Finance, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, July 14, 2015

Tenth Circuit Rejects Challenge to Contraception Mandate

The Tenth Circuit today rejected statutory and First Amendment challenges to HHS's religious accommodation to its contraception mandate under the Affordable Care Act. We most recently posted on the issue, in the Notre Dame case in the Seventh Circuit, here.

The plaintiffs in the case--Little Sisters of the Poor, Southern Nazarene, and Reaching Souls--argued that the HHS requirement that they notify their health insurance providers, third party insurers, or HHS (with a simple letter) in order to get out from under the contraception mandate violated the Religious Freedom Restoration Act, free exercise and establishment of religion, and free speech.

The Tenth Circuit rejected the claims. In a lengthy opinion that comes with its own glossary and table of contents, the court ruled that it wasn't the plaintiffs' accommodation (the notification of their objection) that triggered the provision of contraceptions; it was the law. (Judge Posner arrived at the same conclusion with more colorful language in the Notre Dame case.) Given this, there was no substantial burden on religion under RFRA. Moreover, the court said that the accommodation met rational basis review under the Free Exercise Clause, that it didn't discriminate between religions and religious organizations in violation of the Establishment Clause, and that the accommodation didn't amount to compelled speech under the First Amendment.

July 14, 2015 in Cases and Case Materials, Establishment Clause, First Amendment, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Thursday, July 9, 2015

No Remedy for Torture Victims, Court Reaffirms

Judge Ellen Segal Huvelle (D.D.C.) yesterday reaffirmed that torture victims lack a remedy in the federal courts. Judge Huvelle applied circuit precedent and granted the government's motion to dismiss Mohammed Jawad's torture claims against government officials. The ruling ends Jawad's case, unless and until he appeals.

The case is not surprising, given the state of the law, but it is disturbing: it reaffirms (yet again) that torture victims lack a judicial remedy.

Jawad claimed that government officials authorized his torture at Guantanamo Bay, before and after designating him an "enemy combatant" and before releasing him as no longer "legally detainable" after over six years in detention. Jawad claimed that officials violated the Alien Tort Claims Act, the Federal Tort Claims Act, the Torture Victims Protection Act, and the Fifth and Eighth Amendment.

Judge Huvelle rejected all these claims. Judge Huvelle denied Jawad's FTCA claims, because she said that government officials were acting within the scope of their employment--torture, evidently, is within the scope of employment to maintain order and discipline at Guantanamo--and because the government's waiver of immunity under the FTCA doesn't apply outside the United States. Judge Huvelle denied the TVPA claim, because U.S. officials weren't acting under the law of a foreign nation, as required by the TVPA. And she denied Jawad's constitutional claims, because she said that special factors counseled against extending a Bivens remedy.

Judge Huvelle also ruled that Jawad's claims are foreclosed by the Military Commissions Act, which bars non-habeas claims against the government or its agents related to "conditions of confinement of an alien . . . who was properly detained as an enemy combatant . . . ." Judge Huvelle said that the government never disavowed its classification of Jawad as an enemy combatant, even though the government later said that he was no longer legally detainable.

The ruling is hardly a surprise, given circuit precedent and the state of the law. But it is disturbing: It says (yet again) that torture victims don't have a judicial remedy.

July 9, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, War Powers | Permalink | Comments (2)

Wednesday, July 8, 2015

Second Circuit Holds Unwed Mother-Father Immigration Distinction Unconstitutional

In its opinion in Morales-Santana v. Lynch, a unanimous panel of the Second Circuit has held that the differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection as included in the Fifth Amendment's protections. It creates a conflict in the circuits and sets up another trip to the United States Supreme Court on the issue, the last one having resulted in a 4-4 split as discussed below. 

The statutory scheme at issue, the Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1409(c), was the one in effect when Morales-Santana was born in 1962 outside the US to unwed parents.  His parents married each other in 1970 and he was admitted to the US as a lawful permanent resident in 1975.   In 2000, Morales-Santana was placed in removal proceedings after a conviction for various felonies and applied for withholding based on derivative citizenship from his father.

Derivative citizenship, which occurs at the moment of birth, is bestowed on a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. By contrast, a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen.  Morales-Santana's father, born in Puerto Rico in 1900, met the one year requirement but not the ten year requirement at the time of his son's birth.  Both parties agreed that had Morales‐Santana’s mother, rather than his father, been a citizen continuously present in Puerto Rico until 20 days prior to her nineteenth birthday, she would have satisfied the requirements to confer derivative citizenship on her child. It is this gender‐based difference in treatment that Morales‐Santana claims violated his father’s right to equal protection.

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image via

The Second Circuit's decision that the differential requirements for unwed fathers and mothers is unconstitutional must confront several United States Supreme Court decisions that point in a different direction on the equal protection issue in citizenship statutes, including two recent decisions.  First, the Court  in  Nguyen v. INS (2001) upheld gender discrimination regarding establishment of paternity.  The Second Circuit notes that Morales-Santana complied with the statutory provisions upheld in Nguyen: the child was "legitimated" and thus paternity "acknowledged" when his parents married in 1970.  Second, and more important, is the Court's per curiam affirmance by an "equally divided Court" in Flores-Villar v. United States in 2011. The Ninth Circuit in Flores-Villar  had upheld the differential residency requirement. 

Judge Ray Lohier's for the Second Circuit subjects the statutory scheme to intermediate heightened scrutiny under United States v. Virginia (VMI) (1996), rejecting the government's argument that essentially all citizenship statutes should be subject to mere rational basis review. 

With regard to the government's proffered interests, the court acknowledged that ensuring a sufficient connection between the child and the United States is important, but then states that the differential treatments of mothers and fathers is unrelated to it:  the government

offers no reason, and we see no reason, that unwed fathers need more time than unwed mothers in the United States prior to their child’s birth in order to assimilate the values that the statute seeks to ensure are passed on to citizen children born abroad.

The Second Circuit then recognizes that its "determination conflicts with the decision of the Ninth Circuit in Flores‐Villar, which addressed the same statutory provisions and discussed the same governmental interest in ensuring a connection between child and country."

As to the government's second interest - - - preventing statelessness - - - the court again agrees that it is important, but concludes that this was not a genuine actual interest of the legislation.

Neither the congressional hearings nor the relevant congressional reports concerning the 1940 Act contain any reference to the problem of statelessness for children born abroad. The congressional hearings concerning the 1952 Act are similarly silent about statelessness as a driving concern.

Moreover, even if it had been the government's concern, gender-neutral alternatives - - - which the court notes had been proposed as "far back as 1933" - - - would serve this purpose.  Additionally, the ten year differential, which importantly cannot be cured since it attaches at the moment of birth, is substantial.  Again, this time in a footnote (n.17), the court acknowledges that its decision differs from that of the Ninth Circuit.

The court then finds the paternity provision unconstitutional and rejects the government's proposed remedy that all derivative citizenship be subject to the longer ten year period.

Presumably, the government will seek certiorari.  (And while this case involves a previous statute, the current statute maintains a gender differential).  A petition would have a good chance of being granted given the split in the circuits.  But the Court's 4-4 split in 2011 in Flores-Villar occurred because Justice Kagan was recused; this would not be the case this time.  And perhaps the Obama Administration will chose not to seek review. 

July 8, 2015 in Congressional Authority, Equal Protection, Family, Gender, Opinion Analysis, Recent Cases, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)

DC Circuit Upholds Federal Employment Application Limited to DC Area

As most law students learn, a state or locality cannot limit applicants for employment to its own residents because of a "right to travel."  But can the federal government limit applicants to those currently residing in the District of Columbia area?  In its opinion in Pollack v. Duff, the DC Court of Appeals has stated that the federal government can do so.

The case began with a 2009 job posting from the Administrative Office (AO) of the United States Courts for an attorney-advisor for a job in DC.  The posting provided that the AO would consider applications from any employee of the federal judiciary and from any other person who lived within the "Washington Metropolitan Area." 

Map_DC_metro_lgMalla Pollack, who represented herself in this litigation, is a former DC Court of Appeals clerk and accomplished legal scholar.  She applied for the position when she no longer worked for the judiciary and was living in Kentucky.  The  AO rejected her application because of her residency.  She protested based on residency, but was referred to the Fair Employment Practices System; she was then told that such complaints were limited to allegations of discrimination based on race, and other categories that did not include residency.  The DC Court of Appeals opinion notes that the AO's actions of referral and then dismissal essentially "played upon" Pollack.  The court might also have characterized the AO's argument of judicial review preclusion - - - because the Fair Employment Practices System is the exclusive means for deciding a claim of discrimination - - - as attempting to "play upon" the court.  Instead, the court merely gives the argument the brief discussion it merited.  

The court also notes that this is the second time the litigation reached the DC Court of Appeals.  In late 2012, the court reversed the dismissal of the complaint based on sovereign immunity, concluding that sovereign immunity does not bar a suit seeking specific relief for officers acting outside the bounds of constitutional authority.

On the merits of the right to travel argument, the court's opinion - - - authored by Senior Judge Douglas Ginsburg - - - untangles the various strands of the constitutional right to travel as might be applied to actions by the federal government.  The court first looks at Article IV §2, the privileges and immunities clause, but finds it protects state citizens against actions by other states, not by the federal government.  The court engages with the erudite originalist argument centered on James Iredell but nevertheless rejects it, noting that although the historical record is not "pellucid," reasoning in part that the

location of the Privileges and Immunities Clause in § 2 of Article IV supports the conclusion that it is directed at the states and not at the national government. Article IV is the “so-called States’ Relations Article.”  Section 2 of Article IV, in addition to the Privileges and Immunities Clause, included the Interstate Rendition Clause and the Fugitive Slave Clause, both of which were concerned with comity among the states.

The court's rejection of the equal protection claim does not rest on its inapplicability to the federal government, which "indisputably" applies to the federal government through the Fifth Amendment, including in its right to travel aspects.  Instead, the court essentially finds Pollack's claimed right too speculative:

If the AO had reviewed her application, then it might have offered her a job, which might have prompted her to move to the Washington area. Thus, Pollack might have been marginally more likely to travel to the Washington area but for the geographical limitation she is challenging. This effect upon Pollack’s willingness to travel, i.e., to exercise her right to travel, is “negligible” and does not warrant scrutiny under the Constitution.

Additionally, and more remarkably, the court rejects the argument that the AO created a classification that serves to penalize the right to travel by reasoning that the AO classification actually incentivizes the right to travel.  Distinguishing the AO classification from the durational residency requirement at issue in the landmark right to travel case of  Shapiro v. Thompson (1969), the court reasoned:

The AO’s geographical limitation is quite different, however, because it would not penalize Pollack if she decided to travel from Kentucky to the Washington area. To the contrary, the geographical limitation gives Pollack an incentive to travel to Washington in order to apply for a job with the AO that is open only to residents of the area. In other words, the geographical limitation burdens only Pollack’s decision not to travel interstate.

[emphasis in original].  The court thus did not consider what level of scrutiny should apply or whether any level would be satisfied, but simply held that the classification did not actually implicate the right to travel.  On the court's read, Pollack's only viable claim would be if she had been in DC and discouraged from leaving because she wanted to apply for the AO position; a claim the court notes that she did not make and would not have standing to raise on behalf of another person.

After a brief consideration of structural arguments, the court concludes by questioning the wisdom of the AO policy:

We agree with Pollack that it is difficult to comprehend why the AO refused to consider applicants who did not live in the Washington area but were willing to move there if they received an offer of employment. The AO points out that it receives applications from many qualified attorneys and it must limit the total number of applicants for certain positions so that it may focus upon those it is most interested in hiring. It is unclear, however, why the agency would use a geographical limitation to control the size of its applicant pool rather than criteria that are likely to be more closely correlated with job performance.

But the court decides that the AO did not violate Pollack's constitutional rights.  And given this decision - - - and the AO's protracted litigation on the issue - - - one can only assume that the AO will limit applicants by geography in future job postings.

July 8, 2015 in Cases and Case Materials, Due Process (Substantive), Equal Protection, Federalism, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Travel | Permalink | Comments (0)

Tuesday, July 7, 2015

Ninth Circuit Finds Constitutional Problems with Arizona's Anti-Ethnic Studies Law

In its opinion in Arce v. Douglas, a panel of the Ninth Circuit has found that Arizona's so-called anti-ethnic studies statute suffers from constitutional infirmities.

Recall that Arizona's HB 2281, which we noted when it was passed in 2010, codified as Arizona Revised Statute §15-112, provides:

A.  A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:

1. Promote the overthrow of the United States government.
2. Promote resentment toward a race or class of people
3. Are designed primarily for pupils of a particular ethnic group.
4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.

 In 2013, Judge Wallace  Tashima, who was sitting by designation as district judge, ruled on the First Amendment and Fourteenth Amendment challenges to the statute, substantially upholding the statute but finding subsection (3) was unconstitutional under the First Amendment, but severable from the remainder of the statute.

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image: Paisaje con el Iztaccíhuatl — obra de Gerardo Murillo, 1932, via

Today's Ninth Circuit opinion - - - authored by New York District Judge Jed Rakoff sitting by designation, and joined in full by Judge Noonan, with a partial concurrence and dissent by Judge Richard Clifton - - - affirmed the district court’s rulings that § 15- 112(A)(3) is unconstitutional in violation of the First Amendment but severable from the rest of the statute; that §§ 15-112(A)(2) and (A)(4) are not overbroad in violation of the First Amendment; and that §§ 15-112(A)(2) and (A)(4) are not vague in violation of the Due Process Clause.  However, the appellate panel found fault with the sua sponte grants of summary judgment - - - both on the equal protection claim and on a First Amendment viewpoint discrimination claim.

As to the equal protection claim, the Ninth Circuit concluded that subsections (3) and (4), while not facially discriminatory, raised constitutional issues because of evidence of their discriminatory purpose in enactment or enforcement.  The Ninth Circuit remanded the issue to be considered by the district court in light of the Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) factors:

  • (1) the impact of the official action and whether it bears more heavily on one race than another;
  • (2) the historical background of the decision;
  • (3) the specific sequence of events leading to the challenged action;
  • (4) the defendant’s departures from normal procedures or substantive conclusions; and
  • (5) the relevant legislative or administrative history.

The majority discussed the factors and the evidence, finding that there was sufficient evidence to raise a genuine issue of material fact.  Judge Clifton dissented on the procedural posture of the remand, arguing that the district court should be able to fully consider summary judgment.

On the other remanded issue - - - the First Amendment viewpoint discrimination claim - - - the Ninth Circuit did not preclude summary judgment, noting that the district judge "did not even review the evidence" on this issue.

As to the unconstitutionality of subsection (3) as violative of the First Amendment,  the Ninth Circuit affirmed the district court.  Interestingly, the Ninth Circuit stated:

The very danger we perceive was corroborated, at oral argument, when we asked counsel for defendants whether the statute could be found to prohibit a public school course in San Francisco on the topic of Chinese history that was open to all students but was designed in consideration of the substantial Chinese and Chinese American student population there that might benefit from a greater understanding of its history. Defendants asserted that the course could be found in violation. As indicated by this example, subsection (A)(3) threatens to chill the teaching of ethnic studies courses that may offer great value to students— yet it does so without furthering the legitimate pedagogical purpose of reducing racism.

However, the Ninth Circuit affirmed the district court's finding that the other sections of the statute survived the First Amendment challenges rooted in curricular decisions.

Thus, on remand, the state will need to show that its so-called anti-ethnic studies statute was not actually anti-people of certain ethnic identities.

July 7, 2015 in Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Race | Permalink | Comments (0)