Monday, November 13, 2017
SCOTUS Grants Certiorari on First Amendment Challenge to California's Regulation of "Crisis Pregnancy Centers"
The United States Supreme Court has granted certiorari in National Institute of Family and Life Advocates (NIFLA) v. Becerra to the Ninth Circuit's opinion upholding the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act). The California law requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California. The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”
Recall that affirming the district judge, the unanimous Ninth Circuit panel rejected both the free speech and free exercise of religion claims advanced by NIFLA in seeking a preliminary injunction. After finding that the challenge was justiciable as ripe, the panel opinion, authored by Judge Dorothy W. Nelson, first considered the free speech challenge which is at the center of the case. The panel concluded that the California statute's requirement of disclosure of state-funded services merited intermediate scrutiny under the First Amendment, which it survived, and that the unlicensed disclosure requirement survived any level of scrutiny. The Ninth Circuit rejected the argument that the FACT Act was viewpoint-discrimination subject to strict scrutiny. The Ninth Circuit did agree with the challengers that the disclosure requirement was content-based, but held that not all content-based regulations merit strict scrutiny under Reed v. Town of Gilbert (2015). The court looked back to Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), noting that it did not announce a standard for abortion-related disclosure and applied Ninth Circuit precedent of Pickup v. Brown (2013) in which the court upheld a California statute banning conversion therapy under a "professional speech" intermediate standard of scrutiny. The panel upheld the statute applying intermediate scrutiny.
The Ninth Circuit ruling is at odds with other opinions, including, as the opinion noted, the Second Circuit in Evergreen Ass’n, Inc. v. City of N.Y.(2014) and the Fourth Circuit en banc in Centro Tepeyac v. Montgomery Cty. (2013) applied strict scrutiny and held similar provisions unconstitutional because there were other means available to inform pregnant women, including advertising campaigns. Thus, it is this circuit split that will inform the United States Supreme Court arguments.
The Supreme Court's decision should resolve the debate concerning state regulation of crisis pregnancy centers but could also be much broader concerning so-called professional speech.
Wednesday, November 8, 2017
Ninth Circuit Requires Disclosure of Identifying Information on Website Rejecting First Amendment Claim
In its opinion in In Re Grand Jury Subpoena, No. 16-03-217, a panel of the Ninth Circuit rejected an attempt to quash a grand jury subpoena seeking identifying information of users who posted anonymous reviews of a company on the website, Glassdoor.com. Glassdoor is a website where "employers promote their companies to potential employees, and employees post reviews of what it's like to work at their companies." The subpoena relates to a company involved in the grand jury's investigation of a government contractor administering Department of Veterans Affairs healthcare programs, seemingly prompted by comments that the company was acting unethically.
Glassdoor raised two First Amendment claims supporting the appeal of the denial of its motion to quash. First, Glassdoor argued that its users' right to associational privacy was infringed. The unanimous panel opinion, authored by Judge Richard Tallman, quickly dispatched this "tenuous" claim. There is no actual association among the users who "do not so much 'discuss' employment conditions as independently post their individual views." Thus, the users do not constitute "an expressive association like the Jaycees, the Boy Scouts, or the NAACP." Indeed, the court implied that this associational argument was inconsistent with Glassdoor's other claim: anonymity.
The court considered this second claim, the right to anonymous speech, more extensively. The court decided that the applicable precedent was Branzburg v. Hayes (1972), in which the United States Supreme Court famously held that a reporter did not have a First Amendment right to protect sources, known as the "reporters' privilege." As the Ninth Circuit expressed it, Branzburg held that "a reporter - - - even one who has promised his sources anonymity - - - must cooperate with a grand jury investigation unless there is evidence that the investigation is being conducted in bad faith." Judge Tallman's opinion rejected the argument that Branzburg is limited to newsgathering and that a Ninth Circuit case, rendered one day after Branzburg and proposing a compelling interest test, should control. Thus, for the Ninth Circuit, the only issue was whether the grand jury proceeding was in bad faith; an assertion that Glassdoor did not make.
In short, the court found no reason to "carve out an exception" to the Branzburg principle and no reason to remand. Glassdoor has few legally viable options other than to disclose the identifying information on the website.
Wednesday, October 11, 2017
In an Order of denial of en banc review in CTIA- The Wireless Ass'n v. City of Berkeley, a concurring opinion by the original majority judges and a dissenting opinion demonstrate the continuing controversies surrounding the constitutionality of compelled commercial speech.
Recall that the original panel opinion in April upheld the constitutionality of Berkeley's mandated notice to purchasers of cell phones regarding exposure to RF radiation. The First Amendment issue was the controversial choice of standards in compelled disclosure in a commercial context: is the correct standard the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985)? A majority of the panel, affirming the district judge, held that Zauderer applied.
In the denial of rehearing and the denial of en banc review, the original panel judges in the majority, Fletcher and Christen,wrote briefly to rearticulate their views. While they stated their panel opinion "largely speaks for itself," they stressed that their opinion was consistent with other circuits. The opinion has a thorough yet succinct list of the cases in this area. They concluded that:
Our colleague would have us create a circuit split with the D.C., First, Second and Sixth Circuits. We decline to do so on two grounds. First, circuit splits are generally to be avoided. Second, and more important, we believe that our four sister circuits got it right.
Writing a dissenting opinion from the denial of en banc was not Judge Friedland of the original panel - - - who did vote for rehearing - - - but Judge Kim Wardlaw, who wrote that although she does not ordinarily file "dissentals" (quotes in original), she believes that the Ninth Circuit should clarify that Zauderer's rational basis standard should apply only when the government compels speech to prevent consumer deception. She discussed the recent Ninth Circuit panel decision finding warnings about sugary drinks violated the First Amendment. She argued that there was the potential for conflicting results as "district judges to make essentially factual judgments about a disclosure’s veracity and its burden on a business even before the parties have developed an evidentiary record."
Judge Wardlaw concluded by stating that she is "looking forward" to the next compelled disclosure case. Most likely, she will not have too long to wait as this continues to be a contentious issue.
The Ninth Circuit ruled yesterday that California's prorator license law likely violates the Dormant Commerce Clause. In the same ruling, the court held that California's mandatory disclosure requirements likely did not violate the First Amendment, and that the case did not warrant Younger abstention. The court sent the case back for further proceedings.
The case, Nationwide Biweekly v. Owen, arose when California prosecutors and regulators targeted Nationwide Biweekly Administration for fraud investigations involving one of its mortgage-payoff products. Here's how it works: a consumer would pay to Nationwide his or her monthly mortgage bill every two weeks, instead of paying to the lender directly every month. Nationwide would then pay the lender every month. This meant that a consumer would pay to his or her lender, through Nationwide, an extra monthly payment each year and thus pay off the loan sooner. Nationwide advertised the product as a "100% savings," but failed adequately to disclose the discount rate (based on the time-value of money) and fees for the product. So what appears to be a cost-free (and thus savings-only) product in fact is not cost-free.
The Monterey County District Attorney's Office sent Nationwide a letter about the practice and alleged that Nationwide was violating several California laws. In particular, the DA's office wrote that Nationwide was violating two provisions that required it to say that it's not affiliated with the lender in any solicitation to consumers for its product. The letter also said that Nationwide was violating California's "prorator" registration law, which required a "prorator" (a "person who, for compensation, engages in whole or in part in the business of receiving money or evidences thereof for the purpose of distributing the money or evidences thereof among creditors in payment or partial payment of the obligations of the debtor") to obtain a license. But under California law, such a license is only available to a corporation if the corporation is "organized under the laws of this State for that purpose." The Commissioner later sent Nationwide a letter notifying the corporation that it was investigating Nationwide's unlicensed business activity.
Nationwide filed suit in the Northern District, seeking to enjoin enforcement of the disclosure requirements by the DA. A Nationwide subsidiary later filed suit in the Northern District seeking to enjoin enforcement of the registration requirement against the Commissioner. The court rejected Nationwide's motion for a preliminary injunction in both cases, and Nationwide filed notices of appeal.
About a month after the opening appellate briefs were filed, the DA and the Commission filed a joint enforcement suit in California Superior Court. The district court dismissed both federal cases under Younger, and Nationwide appealed.
The Ninth Circuit ruled first that Younger abstention was not appropriate, because "before the date that the state case was filed, the district court had already conducted proceedings of substance on the merits." In particular, the court "spend a substantial amount of time evaluating the merits of the cases in considering and denying (in a detailed and reasoned order) Nationwide's motions for preliminary injunctions."
The court went on to hold that Nationwide was unlikely to succeed on its First Amendment claim. It ruled that under Zauderer, the "required disclaimers--short, accurate, and to the point--are reasonably related to California's interest in preventing . . . deception."
Finally, the court said that California's licensing requirement likely violated the Dormant Commerce Clause, because California's requirement makes in-state incorporation a prerequisite to getting a license to engage in interstate commerce.
Judge Montgomery argued in dissent that the federal proceedings were still at an embryonic stage and the court should have abstained under Younger.
Thursday, September 28, 2017
The Court today agreed to take up a First Amendment challenge to a public sector union fair-share law in Janus v. AFSCME. The case pits non-members' First Amendment right not to pay dues for a union's collective bargaining activities (even if they benefit from those activities) against a union's interest in collecting dues for its collective bargaining efforts that everyone benefits from in a union shop.
This isn't the first time the Court has considered the issue, not by a long shot. The Court originally upheld fair-share laws--state requirements that non-members pay union dues for collective bargaining (but not for a union's political activities)--in 1977 in Abood v. Detroit Board of Education. In that case, the Court held that a state's interests in avoiding non-union-member free-riders and labor harmony permitted a state to require non-members to pay a "fair share" of a union's collective bargaining activities. (Under federal law, the union has to represent even non-members in a union shop.)
But more recently, the Court has hinted in a couple of cases that it's ready to reconsider Abood and overturn fair share laws under the First Amendment. A case, Friedrichs v. California Teachers Association, was teed up for just such a ruling when Justice Scalia passed away. When the 8-member Court decided Friedrichs, it deadlocked, leaving a Ninth Circuit ruling upholding fair share in place.
At the time, Senator Mitch McConnell was refusing to give Judge Garland, President Obama's nominee to replace Justice Scalia, a hearing in the Senate. McConnell famously waited President Obama's term out, and the Senate then confirmed President Trump's nominee, Neil Gorsuch.
With Justice Gorsuch on board, the Court now agreed to hear another case testing fair share, Janus. And that doesn't bode well for fair share laws and public sector unions. If Justice Gorsuch votes with the conservatives (who all presumably would have voted against fair share in Friedrichs), as seems likely or even certain, it'll mark the end of fair share and the likely demise of public sector unions. That's because if the Court strikes fair share, non-members in a union shop will have no requirements and few incentives to pay for the union's collective bargaining activities that benefit them. And without a requirement or incentive to pay fair share, many won't. And seeing that non-members can free ride on the union (because even non-members benefit from a union's collective bargaining activities), members will likely drop out to free ride, too. The siphoning of dues-paying non-members and members will leave the union with less and less resources to support collective bargaining, potentially decimating public sector unions.
There's no guarantee, of course, that a Justice Garland, or any other Obama appointee, would have voted to uphold fair share laws. But with Justice Gorsuch filling Justice Scalia's seat, we can all but guarantee that fair share will go away.
Wednesday, September 20, 2017
Ninth Circuit Finds San Francisco's Soda-Warning Ordinance Subject to Injunction Under First Amendment
The Ninth Circuit's opinion in American Beverage Association v. City and County of San Francisco, reversing the district judge, found that San Francisco's ordinance requiring a warning about the health effects of sugary drinks likely violated the First Amendment and should be enjoined.
The ordinance required advertisements for sugar-sweetened beverages (SSB) to include a statement:
WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.
The ordinance not only defined SSBs, but also required that the warning "occupy 20 percent of the advertisement and be set off with a rectangular border."
The Ninth Circuit panel's opinion, authored by Judge Ikuta, applied the well-known Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) First Amendment standard for disclosures in the context of commercial speech, joining a previous Ninth Circuit panel regarding Berkeley's cell-phone warnings as well as sister-circuits in applying Zauderer beyond the context of preventing consumer deception.
Judge Ikuta articulated the Zauderer factors as requiring that the compelled disclosure be factual and non-controversial, that it not be “unjustified or unduly burdensome” so that it chills protected commercial speech, and that there is a substantial government interest to which the mandated disclosure is reasonably related. Applying the factors, Judge Ikuta's opinion concluded that the mandated disclosure failed both the "factual and noncontroversial" factor and the not unduly burdensome factor.
Regarding the noncontroversial factor, Judge Ikuta reasoned that it was not so much that the warning was untrue as to the drinks defined as SSB, mostly sodas, but that it did not extend to "other products with equal or greater amounts of added sugars and calories."
By focusing on a single product, the warning conveys the message that sugar-sweetened beverages are less healthy than other sources of added sugars and calories and are more likely to contribute to obesity, diabetes, and tooth decay than other foods.This message is deceptive in light of the current state of research on this issue. According to the FDA, “added sugars, including sugar-sweetened beverages, are no more likely to cause weight gain in adults than any other source of energy.” The American Dental Association has similarly cautioned against the “growing popularity of singling-out sugar-sweetened beverages” because “ the evidence is not yet sufficient to single out any one food or beverage product as a key driver of dental caries.”
[citations omitted]. San Francisco sought to distinguish SSBs as unique because they are more likely to be over-consumed, but the opinion noted that the risk of over-consumption was not the risk addressed by the warning.
As to burdensomeness, Judge Ikuta concluded that the 20% requirement chilled the commercial speech. Judge Ikuta appended three examples, concluding that as "the sample advertisements show, the black box warning overwhelms other visual elements in the advertisement." While the advertisers could engage in counter-speech in the remaining 80% of the advertisement, this would "defeat the purpose of the advertisement, turning it into a vehicle for a debate about the health effects of sugar-sweetened beverages."
Having found that the challengers were likely to succeed on the First Amendment merits, the panel then found that the other factors for preliminary injunction weighed in favor of enjoining the ordinance.
Thus, like the New York City attempt to regulate super-size sodas, the San Francisco ordinance makes another unsuccessful attempt to require warnings on products in an effort to change health habits.
Friday, September 8, 2017
In a lengthy opinion in Petrello v. City of Manchester, United States District Judge Landya McCafferty found the City's efforts to control "panhandling" through its enforcement of a disorderly conduct statute and through an ordinance directed at panhandling both violated the First Amendment.
Ms. Petrello was arrested under the disorderly conduct statute although her panhandling was "passive" and she was not in the roadway. Any "disorder" was actually caused by a third party driving a Cadillac who stopped the car to hand something to Petrello, who did not step into the road.
The Cadillac then drove through the intersection, but the light turned red and the Jeep was unable to make it through the intersection. If the Cadillac had not stopped at the green light, then the Jeep would have made it through the intersection while the light was still green and would not have had to wait for the next green light.
Judge McCafferty found that the Manchester Police Department (MPD) policy was a sufficient basis for liability. The policy was clearly directed at enforcing the statute against even passive panhandling and under the First Amendment, she stated that the policy was content-neutral, because the discussions of the anti-handling policies were "not in terms of any message the panhandler is conveying, such as requests for donations." Nevertheless, she reasoned that "in the end," she "need not resolve the question of whether the MPD Policy is content based, because it does not survive scrutiny as a content-neutral regulation." Applying the doctrine of Ward v. Rock Against Racism (1989), Judge McCafferty found that while public safety and free flow of traffic are significant government interests, the policy burdens more speech than necessary. Essential to this conclusion was the fact that the statute was applied to Ms. Petrello who did not step into the street, and that her speech should not be curtailed by third party driving a Cadillac or traffic lights that turned red too quickly. Judge McCafferty issued an injunction and ruled this could proceed to trial on damages.
In its other attempt to curtail panhandling. the City of Manchester passed an ordinance providing:
“No person shall knowingly distribute any item to, receive any item from, or exchange any item with the occupant of any motor vehicle when the vehicle is located in the roadway."
Again, Judge McCafferty found the ordinance content-neutral and again that the ordinance violated the First Amendment. Again, Judge McCaffery found that while the government interests were valid, the Ordinance was not sufficiently tailored to those interests for four main reasons: (1) the Ordinance bans roadside exchanges that do not obstruct traffic or pose safety risks; (2) the Ordinance is geographically overinclusive because it applies citywide; (3) the Ordinance is underinclusive because it penalizes only pedestrians, not motorists; and (4) the City has less speech- restrictive means available to address its concerns. In reaching these conclusions, Judge McCafferty relied in part on the Ninth Circuit en banc decision in Comite de Jornaleros de Redondo Beach v. City of Redondo Beach (2011) regarding day labor solicitation.
The opinion also addresses Petrello's standing to challenge the ordinance since she was not charged under it, but only the disorderly conduct statute, finding that she satisfied Article III standing although the City argued she had no imminent injury. The opinion rejects Petrello's Fourth Amendment claim based on her original arrest and an equal protection challenge to the implementation of the statute.
The City could certainly appeal to the First Circuit, but it probably has little chance of success.
[image: William-Adolphe Bouguereau, Petites Mendiantes (1880) via]
Wednesday, August 30, 2017
The D.C. Circuit ruled yesterday that Libertarian and Green Party candidates in the 2012 presidential election lacked standing to challenge their exclusion from presidential debates under antitrust laws and the First Amendment. The ruling denies the candidates monetary damages and declaratory relief and ends their case.
The case arose when Libertarian Party candidates Gary Johnson and James Gray and Green Party Candidates Jill Stein and Cheri Honkala failed to meet the threshold 15% support to participate in the 2012 national debates. They sued the Commission on Presidential Debates and the Obama and Romney campaigns, which set the 15% threshold, for violations of antitrust laws and the First Amendment.
The court ruled that the plaintiffs lacked statutory standing to bring their antitrust claim. It wrote that "antitrust standing requires a plaintiff to show an actual or threatened injury 'of the type the antitrust laws were intended to prevent,'" but that the plaintiffs "define[d] their injuries as millions of dollars in free media, campaign donations, and federal matching funds--injuries to them as individual candidates in a political contest for votes." This wasn't the kind of injury to "commercial competition" contemplated by the Sherman Antitrust Act, so the plaintiffs lacked antitrust standing.
Having ruled that the plaintiffs lacked antitrust standing, the court declined to say whether they also lacked Article III standing. This was partly in order to avoid a constitutional question--whether a court ruling in favor of the plaintiffs would infringe the Commission's First Amendment rights. As the court explained, quoting Perot v. Federal Election Commission (D.C. Circuit): "[I]f this [C]ourt were to enjoin the [Commission] from staging the debates or from choosing debate participants, there would be a substantial argument that the [C]ourt would itself violate the [Commission's] First Amendment rights."
As to the First Amendment claim, the court merely said that "[n]one of [the plaintiffs'] allegations articulate a clear legal claim, let alone identify a cognizable injury. To make matters worse, the Complaint omits entirely any allegation of government action, focusing entirely on the actions of the nonprofit Defendants."
Judge Pillard concurred in the judgment but wrote separately to argue that the court should have considered Article III standing, should have ruled in favor of the plaintiffs on that point, and should have dismissed the complaint on the merits.
Tuesday, August 29, 2017
In his opinion in Palin v. The New York Times, Senior United States District Judge Jed Rakoff dismissed Sarah Palin's complaint for defamation for failure to satisfy First Amendment requirements under New York Times v. Sullivan.
Sarah Palin's complaint was based on a New York Times editorial written after James Hodgkinson "opened fire on members of Congress" and others playing baseball in a field in Virginia in June. The editorial decried how "vicious" American politics had become. Importantly, it referenced a previous act of violence by Jared Lee Loughner, resulting in deaths and the injury of Congresswoman Gabriel Giffords. The editorial stated that "the link to political incitement was clear" and that before the Loughner shooting "Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized crosshairs." In the internet-published editorial, "circulated" was hyperlinked to a story which did not support that any link was established.
Judge Rakoff opined that on its face, the complaint was not sufficient to meet the plausibility standard for dismissal relevant to the First Amendment requirement of actual malice under New York Times v. Sullivan applicable to Palin, an "acknowledged public figure." But Judge Rakoff held an evidentiary hearing directed in part to determining actual malice of the editorial writer(s). The Judge found no actual malice, noting that research failures or mistakes do not rise to that level, that the hyperlink's lack of support for the proposition weighed against malice, and that the quick corrections by the newspaper also weighed against actual malice. Judge Rakoff rejected Palin's contention that the editor, James Bennet, was hostile noting that Bennet's "long association with liberal publications" and relation to a political figure opposed to Sarah Palin could not constitute actual malice. "If such political opposition counted as evidence of actual malice, the protections imposed by Sullivan and its progeny would swiftly became a nullity." Judge Rakoff rejected the argument that the New York Times' "collective knowledge and intent" was relevant, although the judge stated that even if it was, the malice standard was not met.
each and every item of alleged support for plaintiffs claim of actual malice consists either of gross supposition or of evidence so weak that, even together, these items cannot support the high degree of particularized proof that must be provided before plaintiff can be said to have adequately alleged clear and convincing evidence of actual malice.
We come back to the basics. What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin they’re very rapidly corrected. Negligence this maybe; a defamation of a public figure it plainly is not.
The court dismissed the complaint with prejudice. It is uncertain whether Palin would appeal.
Monday, August 28, 2017
Late Friday August 25, President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." By Monday, there were at least three lawsuits challenging the action on constitutional grounds.
A month before, Trump had tweeted his thoughts regarding transgender individuals in the military, reportedly taking military officials by surprise.
Soon after the tweets, the complaint in Doe v. Trump was filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) in the District Court for the District of Columbia, challenging any military action on the basis of a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.
This complaint is now joined by two others: The complaint in Stone v. Trump was filed by lawyers for the ACLU in the United States District Court for the District of Maryland, challenging the 3 policies of the military ban - - - existing troops, enlistment of new troops, and medical care - - - as well as the policies taken as a whole. Again, the two constitutional issues are equal protection and due process. The complaint in Karnoski v. Trump was filed by lawyers for Lambda Legal Defense and Education Fund in the United States District Court for the Western District of Washington, challenging the policy on the basis of equal protection, due process, as well as the First Amendment's free speech clause.
On the core challenge of equal protection - - - as applied to the federal government through the Fifth Amendment - - - the complaints vary in their detail and possible theories. In Doe, the NCLR and GLAD complaint, paragraph 71 reads: "The categorical exclusion of transgender people from military service lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." In Stone, the ACLU complaint, paragraph 140 contends that transgender classifications should be treated as sex classifications, deserving heightened scrutiny, and additionally in the next paragraph that transgender status itself warrants heightened scrutiny because "men and women who are transgender, as a class" have historically been subject to discrimination, have a defining characteristic that frequently bears no relation to an ability to contribute to society, exhibit immutable or distinguishing characteristics that define them as a discrete group, and are a minority with relatively little political power. In Karnoski, the complaint contends that in addition to sex-discrimination, discrimination on the basis of transgender status "bears all the indicia of a suspect classification requiring strict scrutiny by the courts," enumerating similar criteria including history of discrimination, discrete and insular minority, no relation to ability to contribute to society, and arguing the characteristic sometimes expressed as immutability in stating that "gender identity is a core, defining trait" so "fundamental to one's identity and conscience that a person should not be required to abandon it as a condition of equal treatment."
However, whatever standard of scrutiny is applied, all the complaints contend that there is not a sufficient government interest in the policy - - - an argument that may well lead into judicial inquiry into Trump's unorthodox announcement on Twitter as well as any details of thoughtful decision-making.
While there has been some reporting that military officials have discretion in implementing Trump's directives, professors of military law have issued a worth-reading policy statement that the discretion is quite limited; they also argue that the directives are discriminatory and based on inaccuracies.
This litigation is certain to accelerate. Expect more action from the NCLR and GLAD action filed before the Friday policy announcement and requests for preliminary relief.
Tuesday, August 22, 2017
In its opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, a divided panel of the Second Circuit affirmed the district judge's holding that the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment.
As the opinion by Judge Barrington Parker states:
We arrive at essentially the same conclusion as the district court. Specifically, we agree that: (i) the Ordinance restricts speech based on its content and is therefore subject to the First Amendment; and (ii) the Ordinance fails the Central Hudson test because it is an overbroad commercial speech prohibition.
Like the district judge, the Second Circuit carefully applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980). The court rejected the Town's argument that "each proposed employment transaction by a day laborer whom the Ordinance targets would be an under-the-table illegal employment arrangement, in violation of immigration, tax, and labor laws," and thus concerned illegal activity removing it from Central Hudson's first prong. Instead, the court quoted the district judge's interpretation that the ordinance clearly applied to any person.The court also noted the similar conclusion by the Ninth Circuit in its 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.
In applying the remainder of the Central Hudson test, while the Second Circuit majority found that there was a substantial interest in traffic safety and that the ordinance sought to directly advance that interest, it concluded that the ordinance was not narrowly drawn: "The Ordinance does not require any connection between the prohibited speech—solicitation of employment—and the asserted interest—traffic and pedestrian safety." Moreover, the court also found
it significant that the Ordinance does not apply to the most common forms of solicitation involving the stopping of vehicles on public rights of way, such as the hailing of a taxi or a public bus. These exemptions strongly suggest that in the great majority of situations, stopping a vehicle on a public right of way creates no inherent safety issue. Entirely prohibiting one speech-based subset of an activity that is not inherently disruptive raises the question whether the Town’s actual motivation was to prevent speech having a particular content, rather than address an actual traffic and pedestrian congestion issue.
Thus, the majority concluded that the ordinance violated the First Amendment.
The majority also affirmed the district judge's conclusion that the plaintiff organizations had standing to challenge the ordinance; dissenting Judge Dennis Jacobs vehemently disagreed. Judge Jacobs stressed that the Second Circuit disapproves of "representational standing," requiring that the organization have injury as an organization. He characterized plaintiff Centro de la Comunidad Hispana de Locust Valley (“Centro”) as an organization that barely exists except as a "vehicle" for the litigation. (To call it an “unincorporated membership organization” is "a boast."). He noted that the plaintiff, The Workplace Project, is not in the Town of Oyster Bay but in the Town of Hempstead and that any "supposed interference with the organizational mission of serving day laborers is conjectural, vague, and generalized." Without discussing Central Hudson, dissenting Judge Jacobs also concluded that while the majority's analysis has "persuasive force" as to a portion of the ordinance, its remedy of injunction against the entire ordinance was too broad.
Despite the split in the panel opinion, this may be the end of the litigation for the Oyster Bay ordinance.
Thursday, August 17, 2017
In its opinion in Contest Promotions v. City and County of San Francisco, a panel of the Ninth Circuit upheld San Francisco's sign ordinances prohibiting off-site advertising (billboards) with an exception for noncommercial notices.
The plaintiff company is an advertiser that rents the right to post signs on the premises of third-party businesses advertising "contests in which passing customers can participate by going
inside the business and filling out a form." It challenged two components of the Planning Code ordinances passed in 2002:
- a general prohibition of new billboards and other off-site signs with a general permission for business on-site signs advertising that business;
- an exemption for noncommercial signs.
Judge Susan Graber, writing for the unanimous panel and affirming the trial judge's dismissal of the complaint, rejected the plaintiff's primary argument that the First Amendment intermediate scrutiny standard of Central Hudson & Electric Corporation v. Public Service Commission of New York (1980) was elevated by IMS v. Sorrell (2011) and Reed v. Town of Gilbert (2015). It relied on the June en banc Ninth Circuit in Retail Digital Network v. Prieto, rejecting a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products, in which the challengers had also argued that Sorrell required heightened scrutiny. It also relied on a 2016 panel opinion in Lone Star Security and Video v. City of Los Angeles, in which the Ninth Circuit upheld L.A.'s mobile billboard ordinances against a First Amendment challenge distinguishing Reed v. Town of Gilbert.
As in RDN v. Prieto and Lone Star Security and Video, once the Central Hudson standard was deemed appropriate, its four-step application was fairly straightforward. That the plaintiff's advertisements were legal and nonmisleading was not in dispute. Second, the court easily found that "a locality’s asserted interests in safety and aesthetics" met the requirement of substantial interests. The third step and fourth steps, both relating to the "fit" and often, as the court acknowledges, not "entirely discrete," were also satisfied. The court found that the ordinance directly advanced the government interests and there was no "constitutional infirmity in the ordinance’s failure to regulate every sign that it might have reached, had Defendant (or its voters) instead enacted another law that exhausted the full
breadth of its legal authority." The court rejected the plaintiff's analogy to City of Cincinnati v. Discovery Network, Inc. (1993) because in Discovery Network the newsracks that were banned were a small portion of newsracks (thus not actually serving the purpose of the ordinance) and that there was no requirement to ban all advertising, including noncommercial to achieve the purpose. In essence, the court found that San Francisco's ordinances were not underinclusive.
While the case seems relatively straightforward, it is yet another indication that the appellate courts are not interpreting Sorrell and Reed as expansively as they might and Central Hudson remains entrenched.
[image: "Ice Sitting Contest," N Y Public Library Collection, via]
Tuesday, August 15, 2017
The Seventh Circuit ruled that state workers' compensation arbitrators did not have a free-speech claim against the governor for not re-appointing them in retaliation for their earlier lawsuit against the governor for changes to the worker-compensation system.
The case is notable, because the court applied restrictive circuit law on policymakers' First Amendment retaliation claim (and not the more general, and more speech-friendly, Pickering test for most public employees), and because the court applied this law to a claim for retaliation for a lawsuit (and not a more familiar form of public speech, like an op-ed).
The case arose when Illinois changed its workers' compensation law. Among other changes, the state changed the appointment schedule for workers' compensation arbitrators. In particular, it terminated all arbitrators' six-year appointments effective July 1, 2011, and provided for executive appointments (with advice and consent of the state senate) for staggered three-year terms for future arbitrators.
Some of the arbitrators sued, arguing that the change violated due process. While that suit was pending, the governor appointed and reappointed arbitrators, but not the plaintiffs in the due-process suit. So they sued again, this time for retaliation for exercising their First Amendment rights in bringing the original due-process suit. They claimed that the governor declined to reappointment them only because they filed that earlier suit, which, they claimed, was "important to, in a public forum, hash out concerns . . . regarding the workers' compensation reforms and to outline that the governor of the State of Illinois had violated the United States Constitution."
The district court tossed the suit, concluding, under Pickering, that the earlier due-process suit was not speech on a matter of public concern.
The Seventh Circuit affirmed, but on a slightly different ground. The Seventh Circuit applied its "policymaker corollary" to Pickering--a circuit rule that derives from Elrod v. Burns and Branti v. Finkel. In those two cases, the Supreme Court said that as a general matter government employers can't fire public employees on the basis of political affiliation. But the Court also recognized an exception for employees who occupy policymaking or confidential positions, thus ensuring that elected officials wouldn't be "undercut by tactics obstructing the implementation of policies . . . presumably sanctioned by the electorate."
The Seventh Circuit's "policymaking corollary" takes the Elrod and Branti exception a step farther, to policymakers' speech:
Instead, under the "policy-maker corollary to the Pickering analysis, the First Amendment does not prohibit the discharge of a policy-making employee when that individual has engaged in speech on a matter of public concern in a manner that is critical of superiors or their stated policies."
The court concluded that the arbitrators were "policymakers," because "the position authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement," and because "the position entails the exercise of a substantial amount of political (as distinct from professional) discretion." It further concluded that the due-process lawsuit amounted to "speech . . . in a manner that is critical of superiors or their stated policies."
The ruling ends the arbitrators' case.
Friday, August 11, 2017
In its opinion in Phelps-Roper v. Ricketts, a panel of the Eighth Circuit, affirming the district judge, rejected First Amendment facial and as-applied challenges to Nebraska's funeral picketing law, §28-1320.01 et seq.
The Nebraska statute was prompted by the activities of the "Westboro Baptist Church" (WBC) organization, of which Shirley Phelps-Roper is a leader, in picketing military funerals as their opposition to "homosexuality." Recall that in 2011, the United States Supreme Court held that the First Amendment protected Reverend Fred Phelps's hateful and harmful speech at the funeral of Marine Lance Corporal Matthew Snyder against state tort claims of intentional infliction of emotional distress and intrusion upon seclusion. Recall also that the constitutionality of ordinances and statutes seeking to regulate funeral protests has been previously challenged by the WBC and Phelps.
Here, the unanimous panel, in an opinion authored by Judge Bobby Shepherd, held that the Nebraska statute survived a facial First Amendment challenge. The Eighth Circuit en banc had previously upheld the City of Manchester, Missouri's ordinance as a constitutional time, place, and manner restriction, but the Nebraska statute differed because the place restriction extends the distance between the picketers and the funeral from 300 to 500 feet and the time restriction is “from one hour prior to through two hours following the commencement of a funeral,” instead of Manchester’s “during or within one hour before or one hour after the conducting of a funeral.” Nevertheless, the court held that the Nebraska statute, like the Manchester ordinance, "serves a significant government interest, is narrowly tailored, and leaves open ample alternative channels for communication."
The as-applied challenge centered on one Omaha protest in 2011, with Ms. Phelps-Roper claiming that the Omaha police treated her differently than others (viewpoint discrimination), that she was forced well beyond the 500 foot buffer zone, and that the police allowed others to interfere with her message. The Eighth Circuit discussed the evidence for each claim and affirmed the trial judge's findings that there was no constitutional violation. On the interference claim, the Eighth Circuit discussed the Sixth Circuit en banc decision in Bible Believers v. Wayne County (2015), but found the situation clearly distinguishable and there was no violence at the WBC funeral event. as the opinion declared,
WBC is not entitled to its own bubble-ensconced pedestal surrounded by chalk lines or yellow tape any more than those opposed to WBC messages are entitled to a heckler’s veto. Law enforcement has a duty to enforce the laws equally without regard to the viewpoints expressed.
The opinion is thorough yet succinct, with little that merits continued litigation. Perhaps we might be nearing the end of the First Amendment funeral protest saga.
Thursday, July 27, 2017
In a well reasoned opinion in Davison v. Loudon County Board of Supervisors, United States District Judge James Cacheris of the Eastern District of Virginia found that a politician who reacted to a constituent's comment on her "official" Facebook post by deleting his comment and banning him from her Facebook page violated the First Amendment.
Phyllis Randall, Chair of the Loudon County Board of Supervisors, maintained a Facebook page, entitled "Chair Phyllis J. Randall." She generally "uses the Facebook page to share information of interest with the County she serves," and Judge Cacheris provided several examples of the types of postings - - - precisely the type of postings one would expect - - - relating to proclamations such as "Loudon Small Business Week" and photographs of herself at conferences or other events.
As a threshold matter, Judge Cacheris determined that there was state action. This state action, however, could not be attributed to the defendant County Board of Supervisors, but only as to Phyllis Randall. Although the Facebook page was not the "property" of the county and would not revert to it when Randall left office, Randall "used it as a tool of governance." The judge found that Randall used the page to communicate with her constituents and the page reflects her efforts to "swathe" it with "the trappings of her office." Further, there were other government employees who assisted with the page. Moreover, the specific act of banning the constituent Davison arose out of public rather than private circumstances. Davison had apparently complained about the corruption of Randall's colleagues on the Board (the actual post, having been deleted by Randall, was not before the judge).
Judge Cacheris referenced two of the Supreme Court's decisions last Term - - - Packingham v. North Carolina opinion, noting that Facebook had become a vital platform for speech and the exchange of ideas, and Matal v. Tam, noting that if anything is clear, "it is that speech may not be disfavored by the government simply because it offends." The judge held that it was unnecessary to decide what type of "forum" under the First Amendment the Facebook page might be, given that under no forum is viewpoint discrimination permissible. Here, the judge held, Randall clearly banned Davison because of the opinion he expressed. There was no neutral policy (such as a ban on profanity) which was being neutrally applied.
The judge observed that Davison was banned only for a short time - - - Randall retracted her ban the next morning - - - and that during this time, Davison had adequate means to communicate his message through other avenues. Nevertheless, the judge stated that
Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards. By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.
The judge issued a declaratory judgment in favor of Davison, who represented himself pro se, on the First Amendment claim, although the judge rejected a procedural due process claim that Davison had also advanced.
This case should serve as a wake-up call for politicians who use their "official" Facebook pages in ways that may violate the First Amendment. The case may also be a harbinger of decisions to come in the ongoing litigation challenging the President's practice of "blocking" people on Twitter.
[image by Matt Shirk via]
Wednesday, July 12, 2017
In a careful and well-reasoned opinion in Animal Defense Fund v. Herbert, United States District Judge for Utah, Judge Robert J. Shelby, has concluded that Utah's so-called "ag-gag" statute, Utah Code §76-6-112, is unconstitutional as violating the First Amendment.
The Utah statute criminalized "agricultural operation interference" if a person:
(a) without consent from the owner of the agricultural operation, or the owner’s agent, knowingly or intentionally records an image of, or sound from, the agricultural operation by leaving a recording device on the agricultural operation;
(b) obtains access to an agricultural operation under false pretenses;
(c) (i) applies for employment at an agricultural operation with the intent to record an image of, or sound from, the agricultural operation;
(ii) knows, at the time that the person accepts employment at the agricultural operation, that the owner of the agricultural operation prohibits the employee from recording an image of, or sound from, the agricultural operation; and
(iii) while employed at, and while present on, the agricultural operation, records an image of, or sound from, the agricultural operation; or
(d) without consent from the owner of the operation or the owner’s agent, knowingly or intentionally records an image of, or sound from, an agricultural operation while the person is committing criminal trespass, as described in Section 76-6-206, on the agricultural operation.
The analysis separated these provisions into the lying provision - - - "false pretenses" under subsection (b) - - - and the recording provisions in the other subsections. As to both types, Utah argued that the First Amendment was not applicable.
Judge Shelby's analysis of First Amendment protection for the "lying provision" included a discussion of United States v. Alvarez (2012), the "stolen valor" case, settling on a reading of Alvarez that lies that cause "legally cognizable harm" could be outside the ambit of the First Amendment. Utah argued that the false pretenses caused two types of legally cognizable harm: danger to animals (and employees) and trespass. Judge Shelby dispatched the danger argument given that there was no connection between the lie and the danger: the "Act as written criminalizes lies that would cause no harm to animals or workers." Judge Shelby's analysis of the trespass rationale is more detailed, considering whether the misrepresentation negates consent so that the liar becomes a trespasser. For Judge Shelby, the answer is "not always." Relying on Fourth and Seventh Circuit pre-Alvarez cases, Judge Shelby essentially concludes that the Utah statute is overbroad:
It is certainly possible that a lie used to gain access to an agricultural facility could cause trespass-type harm; a protestor, for example, might pose as a prospective customer, and then, after being let in the door, begin causing a scene or damaging property. But the Act also sweeps in many more trivial, harmless lies that have no discernable effect on whether a person is granted access, and, consequently, on whether a person causes any trespass-type harm. Indeed, given its broad language (“obtain[ing] access to an agricultural operation under false pretenses”), the Act on its face criminalizes, for example, an applicant’s false statement during a job interview that he is a born-again Christian, that he is married with kids, that he is a fan of the local sports team. It criminalizes putting a local address on a resume when the applicant is actually applying from out of town. In short, the Act criminalizes a broad swath of lies that result in no harm at all, much less interference with ownership or possession of the facility . . . .
Judge Shelby also rejected Utah's argument that "recording" was not protected speech under the First Amendment, citing the Seventh Circuit police recording case recognizing a First Amendment protection (note a similar Third Circuit case in the past week).
Utah also argued that the First Amendment did not apply because the acts involved private property rights, although one of the plaintiffs had been charged while she was on public property filming. More importantly, however, Judge Shelby criticized Utah's argument as confusing a landowner's ability to exclude from her property someone who wishes to speak with the "government's ability to jail the person for that speech."
The applicability of the First Amendment proved to be the thorniest issue, with Judge Shelby then easily proceeding to find these were content-based provisions deserving of strict scrutiny and then easily finding that the Utah statute did not survive. Of special interest is Utah's reliance for its government interests on protecting animals and workers from injury, despite the legislative history that "appears devoid of any reference" to such interests, instead discussing harms caused by "the vegetarian people" and others. Judge Shelby found that the Utah statute was not necessary to serve these interests and was over- and under-inclusive:
Not only is the Act seemingly not necessary to remedy the State’s alleged harms, it is an entirely overinclusive means to address them. It targets, for example, the employee who lies on her job application but otherwise performs her job admirably, and it criminalizes the most diligent well-trained undercover employees. And it is simultaneously underinclusive because it does nothing to address the exact same allegedly harmful conduct when undertaken by anyone other than an undercover investigator.
While recognizing that Utah has an interest in addressing "perceived threats" to the state agricultural industry, Judge Shelby concluded that suppressing "broad swaths of protected speech" is not a constitutionally permissible tool to accomplish this goal. Thus, this opinion joins Idaho district Judge Winmill's 2015 decision in Animal Defense League v. Otter in a defeat for the so-called ag-gag laws.
[image "elk on farm" via]
Friday, July 7, 2017
In its opinion in Fields v. City of Philadelphia, the Third Circuit concluded that "Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public." As the panel majority opinion by Judge Thomas Ambro noted, "Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public"; the Third Circuit joined "this growing consensus."
The court noted that police recording has become "ubiquitous" and that such documentation has "both exposed police misconduct and exonerated officers from errant charges." In considering whether the recording was First Amendment expressive activity, the court noted that the case was "not about people attempting to create art with police as their subjects. It is about recording police officers performing their official duties." Thus, at stake is the First Amendment protection of the "public's right to know": "Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, “the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”
Defendants offer nothing to justify their actions. Fields took a photograph across the street from where the police were breaking up a party. *** If a person’s recording interferes with police activity, that activity might not be protected. For instance, recording a police conversation with a confidential informant may interfere with an investigation and put a life at stake. But here there are no countervailing concerns.
Fields, using his iPhone, was noticed by an officer who then asked him whether he “like[d] taking pictures of grown men” and ordered him to leave. Fields refused, so the officer arrested him, confiscated his phone, and detained him. The officer searched Fields’ phone and opened several videos and other photos. The officer then released Fields and issued him a citation for “Obstructing Highway and Other Public Passages.” These charges were withdrawn when the officer did not appear at the court hearing.
Fields, along with Amanda Geraci who had been involved in a separate incident involving recording, brought 42 U.S.C. § 1983 claims for retaliation for exercising their First Amendment rights. Thus, the court confronted the question of qualified immunity. The court held that at the time of the incident - - - 2013 for Fields - - - it was not sufficiently "clearly established" so that the law "gave fair warning so that every reasonable officer knew that, absent some sort of expressive intent, recording public police activity was constitutionally protected."
Dissenting in part, Judge Nygaard concluded that the right was clearly established. In addition to the "robust consensus" before the conduct at issue, the Philadelphia Police Department's own "official policies explicitly recognized this First Amendment right well before the incidents under review here took place." For Judge Nygaard, "no reasonable officer could have denied at the time of the incidents underlying these cases that efforts to prevent people from recording their activities infringed rights guaranteed by the First Amendment."
Certainly, after Fields v. City of Philadelphia, no reasonable officer could now successfully argue that there is not a First Amendment right to record police activity.
Monday, June 26, 2017
The United States Supreme Court, after a longer than usual period, granted certiorari in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case in which a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, essentially asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Exercise and Free Speech Clauses.
Recall the Colorado ALJ firmly rejected the arguments of the cakeshop owners reasoning that to accept its position would be to "allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage." The ALJ rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'" On the Free Exercise claim, the ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.
A Colorado appellate court affirmed in a 66 page opinion.
Interestingly, the Court in 2014 denied certiorari to a similar case, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer.
The petitioner argues an intersection of doctrines including compelled speech and free exercise, arguing that the Colorado public accommodations non-discrimination law offers a "stark choice" to those who "earn a living through artistic means: Either use your talents to create expression that conflicts with your religious beliefs about marriage, or suffer punishment under Colorado’s public accommodation law."
Friday, June 23, 2017
In its en banc opinion in Retail Digital Network v. Prieto, the Ninth Circuit rejected a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products.
Plaintiff Retail Digital Network, RDN, installed and operated seven foot digital screen displays in liquor stores for the purpose of running advertisements for liquor products such as Moët Hennessy; the retail stores would would receive a portion of RDN's revenue. However, after originally participating in the advertising, Moët Hennessy withdrew, worried that the state would enforce California Business and Professions Code §25503(f)-(h) regarding such advertising arrangements.
The Ninth Circuit had upheld the provision more than thirty years ago in Actmedia, Inc. v. Stroh (1986), applying Central Hudson & Electric Corporation v. Public Service Commission of New York (1980). RDN argued, however, that Actmedia needed to be reconsidered, and contended that IMS v. Sorrell (2011) changed Central Hudson's commercial speech standard from "intermediate scrutiny" to "heightened scrutiny."
The en banc Ninth Circuit, with the exception of Chief Judge Sidney Thomas in a lone dissent, rejected the argument that Sorrell changed the commercial speech standard of Central Hudson. The court's opinion has an excellent rehearsal of the doctrinal relevance of Sorrell after Central Hudson, including arguments derived from Sorrell itself and a discussion of sister-circuit cases. In short, the court finds that Central Hudson "continues to set the standard for assessing restrictions on commercial speech."
Applying Central Hudson, the court does depart in one aspect from its previous application in the thirty-year old precedent of Actmedia. The court found that even assuming "promoting temperance" is a substantial government interest under Central Hudson, the state statute could not be said to "directly and substantially advance that interest" as required by Central Hudson.
However, the court agreed that the statute "directly and materially advances the State's interest in maintaining a triple-tiered market system" for wines and liquor and "because there is a sufficient fit between that interest and the legislative scheme." This "triple-tiered" distribution scheme was adopted by California after the repeal of the Eighteenth Amendment to "prevent the resurgence of tied-houses." Tied-houses were retailers and saloons controlled by larger interests.
ConLawProfs looking for a good case to discuss commercial speech after Sorell might find RDN worth a look. As for whether the United States Supreme Court will take a look at RDN to clarify the commercial speech standard, RDN might also prove interesting.
Monday, June 19, 2017
In its opinion in Matal v. Tam, formerly Lee v. Tam, the United States Supreme Court has concluded that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, was unconstitutional because it violates the First Amendment. Recall that the underlying controversy involves the denial of trademark registration to a band called "The Slants" on the ground that the mark would be disparaging. Recall also that the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, was unconstitutional because it violates the First Amendment. The en banc majority found that the disparagement provision constituted viewpoint discrimination and failed strict scrutiny.
While all eight Justices participating in the decision agreed that the Federal Circuit should be affirmed, and all Justices agreed that the provision was subject to strict scrutiny as a viewpoint regulation, there was some disagreement regarding the applicability of other First Amendment doctrines as was apparent in oral argument.
Writing for the Court in most respects, Justice Alito's opinion concludes that the trademark disparagement provision applies to marks that disparage members of a racial or ethnic group (there was a statutory argument by Tam that this was not true) and is thus subject to the First Amendment. Justice Alito then proceeded to address three government arguments
- that the trademarks are government speech and thus not subject to the First Amendment;
- that trademarks are a form of government subsidy;
- that trademarks should be subject to a new "government program" doctrine.
As to the first discussion on government speech, all the Justices joined Alito's opinion. However, as to the second and third arguments made by the government, only Chief Justice Roberts, and Justices Thomas and Breyer joined. In the concurring opinion by Justice Kennedy, joined by Justices Ginsburg, Sotomayor, and Kagan, Kennedy writes that the "viewpoint discrimination rationale renders unnecessary any extended treatment of other questions."
The issue of whether First Amendment viewpoint discrimination doctrine applies to commercial speech has unanimous assent, with Alito's explanation for four Justices being a bit more extensive than Kennedy's explanation for four Justices, with the supplement of Thomas' additional concurrence to state that commercial speech should not be a separate First Amendment doctrine in cases content regulations.
The essence of the case is that the disparagement provision is viewpoint discrimination subject to strict scrutiny that it does not survive. For Justice Alito (in a plurality portion of the opinion), the matter is resolved thusly:
the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.
[emphasis in original]
From the perspective of the other four Justices, Kennedy phrases the problem a bit differently in addressing the government's arguments that the disparagement clause was not actually a viewpoint discrimination. Kennedy ends by stating
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
Is this a distinction without a difference? Doctrinally, it makes little difference. But it does convey a difference in the mood of the Court.