Thursday, January 4, 2018

Ninth Circuit on Idaho's Ag-Gag Law: Portions Violate First Amendment

In its opinion in Animal Defense League Fund v. Wadsen, a divided panel of the Ninth Circuit largely affirmed the injunction of Idaho's so-called "Ag-Gag" law, Idaho Code § 18-7042.

Recall that Chief Judge B. Lynn Winmill concluded that portions of the statute violated the First Amendment and enjoined them in 2015. The Idaho statute created a new crime, “interference with agricultural production" and provided that

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;
(e) ****

On appeal, the Ninth Circuit majority opinion, authored by Judge Margaret McKeown and joined by Judge Richard C. Tallman, affirmed the finding that subsections (a) and (d) violated the First Amendment, but held that subsections (b) and (c), criminalizing misrepresentations to obtain records and secure employment are not protected speech under the First Amendment and do not violate the Equal Protection Clause. In his partial dissent, Judge Carlos Bea argued that subsection (a), criminalizing misrepresentations to enter a production facility,should survive constitutional review.

Nypl.digitalcollections.510d47e0-5cd6-a3d9-e040-e00a18064a99.001.wWhat might be called the ethical center of the litigation is exemplified by the famous novel The Jungle (also discussed by the federal district judge) in which Upton Sinclair highlighted conditions in the meat-packing industry and which was based on the author's time working incognito in a packing plant. But the majority opinion also observes that the appeal "highlights the tension between journalists’ claimed First Amendment right to engage in undercover investigations and the state’s effort to protect privacy and property rights in the agricultural industry."

But the doctrinal center of the court's analysis of the Idaho statute criminalizing misrepresentation is the United States Supreme Court's fractured opinion in United States v. Alvarez (2012), holding unconstitutional the federal "stolen valor" statute criminalizing falsely claiming to have been awarded a military medal.

Nypl.digitalcollections.37f230d0-089e-0133-f34a-58d385a7b928.001.vIn short, the majority found that subsection (a)'s misrepresentation provision was protected speech under Alvarez subject to exacting scrutiny, which it did not survive, especially given the potential for selective prosecution and its overbreadth. On the other hand, subsection (b) pertaining to obtaining records was not protected speech under Alvarez because unlike subsection (a)'s "false statements made to enter property, false statements made to actually acquire agricultural production facility records inflict a property harm upon the owner, and may also bestow a material gain on the acquirer" and the provision is aimed at conduct. Somewhat similarly, subsection (c)'s criminalization of obtaining employment is not protected speech under Alvarez since the statements were made for material gain. The majority interestingly observed that it was almost as if "the Idaho legislature drafted this provision with Alvarez by its side," but interestingly did not observe that this provision would have criminalized Upton Sinclair as he researched his novel. Finally, subsection (d), the recordings clause, was not within the false statements analysis of Alvarez, but was a content-based prohibition that failed strict scrutiny.

With the proliferation of ag-gag laws, this Ninth Circuit opinion is sure to be relied on by the Tenth Circuit as it considers a district court 2017 decision in Animal Defense Fund v. Herbert holding Utah's ag-gag law unconstitutional under the First Amendment.

 [Images from NYPL public domain collection] 

 

January 4, 2018 in Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, December 20, 2017

Court Says DOJ Gang Designation Is Not Reviewable as a Final Agency Action

The Sixth Circuit ruled this week that the DOJ's and FBI's designation of a group as a "gang" wasn't a final agency action, and therefore the group couldn't challenge the designation as violating the First Amendment under the Administrative Procedure Act.

The case arose when the FBI's National Gang Intelligence Center designated Juggalos, fans of the musical group Insane Clown Posse, as a gang. Juggalos display distinctive tattoos, art, clothing, symbols, and insignia that demonstrate their affiliation with Insane Clown Posse, and associate with each other in order to share their support of the group. According to the NGIC Report, "many Juggalo[] subsets exhibit gang-like behavior and engage in criminal activity and violence."

Juggalos brought an APA claim against the DOJ and FBI, arguing that the gang designation violated their First and Fifth Amendment rights, because other law enforcement officers (including state and local officers) used the NGIC Report to target them.

The Sixth Circuit dismissed the case. The court said that the designation didn't cause law enforcement officers to target Juggalos; instead, officers voluntarily relied on the NGIC and used it for their own enforcement purposes. Therefore, the designation didn't cause any legal consequences to Juggalos, and it wasn't a final agency action under the APA.

The court noted, however, that its ruling didn't foreclose First Amendment suits against local law enforcement officers under 42 U.S.C. Sec. 1983.

December 20, 2017 in Association, Cases and Case Materials, Courts and Judging, Fifth Amendment, First Amendment, News, Speech | Permalink | Comments (0)

Wednesday, December 13, 2017

School Officials Get Immunity, but not the Board, When Board Excludes Speaker from Meetings

The Third Circuit ruled that school board officials are entitled to qualified immunity from a First Amendment claim by a disruptive speaker who the board excluded from future meetings. But the court also ruled that immunity did not extend to the school board itself.

The ruling sends the case back to the district court for further proceedings on municipal liability.

The case, Barna v. Board of School Directors of the Panther Valley School District, arose when the school board excluded speaker Barna from future meetings because he had made threatening and disruptive comments at earlier meetings. After giving Barna a second chance, which he blew, the board's attorney sent Barna a letter barring him from attending all board meetings or school extracurricular activities because his conduct had become "intolerable, threatening and obnoxious" and because he was "interfering with the function of the School Board." The board permitted Barna to submit written questions, however.

Barna sued individual board officials and the board itself for violating his free speech. The district court granted qualified immunity to all defendants and dismissed the case.

The Third Circuit partially reversed. As to the individual board officials, the court said that Barna's right to free speech wasn't clearly established at the time, because Barna cited no Supreme Court authority saying otherwise, and because Fourth Circuit precedent went against him:

We therefore conclude that, given the state of the law at the time of the Board's ban, there was, at best, disagreement in the Courts of Appeals as to the existence of a clearly established right to participate in school board meetings despite engaging in a pattern of threatening and disruptive behavior. Even if a "right can be 'clearly established' by circuit precedent . . . there does not appear to be any such consensus--much less the robust consensus--that we require to deem the right Barna asserts here as clearly established.

While the court didn't rule on the merits--it didn't have to in order to grant qualified immunity, because it concluded that a right to free speech wasn't clearly established at the time--it noted that it had "twice upheld the temporary removal of a disruptive participant from a limited public forum like a school board meeting." The difference in this case: Barna's ban was permanent.

As to the board, the court reversed. The court noted that under Owen v. City of Independence municipalities do not enjoy qualified immunity from suit for damages under Section 1983. The court sent the issue back to the district court for determination whether the action was a pattern or practice under Monell and, if so, a determination on the merits.

December 13, 2017 in Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, December 11, 2017

Ninth Circuit: School Uniform Requirement Violates First Amendment

 In its opinion in Frudden v. Pilling, a unanimous Ninth Circuit panel essentially disagrees with itself.

The litigation, begun in 2011, involves a First Amendment challenge to a school uniform policy requiring students to wear shirts or sweatshirts with a logo of the name of the school, the school mascot (a gopher), and the school motto ("Tomorrow's Leaders").  An exemption to the uniform policy allowed students to wear "the uniform of a nationally recognized youth organization" on regular meeting days of that organization.

There was substantial disagreement over the level of First Amendment scrutiny to be applied.

Originally, the district judge applied intermediate scrutiny, and upheld the constitutionality of the school uniform policy.  A panel of the Ninth Circuit reversed, holding that the motto required strict scrutiny, and remanded the matter. On remand, the district judge held that the "Tomorrow's Leaders" motto survived strict scrutiny and that other claims were moot, did not merit damages, or there was qualified immunity.

On this second appeal, the new panel expressed its disagreement with strict scrutiny as the applicable standard.  It first attempted a sua sponte en banc call, but it did not receive a majority vote of the judges.  Then, considering itself "bound by the holding of the prior three-judge panel" it reluctantly held that the uniform policy, both the moot and the exemption, failed strict scrutiny.

The panel concluded that although fostering children's achievement was a compelling interest, the motto "Tomorrow's Leaders" was not narrowly tailored to achieve that interest: a content-neutral motto would hardly lessen the message. As to the exemption for other uniforms, the government interests justifying the exemption - - - consistency with other schools and parental convenience in not having to bring two uniforms - - - were not compelling.

Gomm_640_banner
Yet the panel also states, in a subsection entitled "Our Disagreement with the Result We Are Required to Reach," that strict scrutiny is the incorrect standard and that the motto and exemption would pass intermediate scrutiny:

According to the prior panel, the motto “Tomorrow’s Leaders” is subject to strict scrutiny because its viewpoint celebrates leadership at the expense of those who are followers. Anodyne, feel-good statements such as “Tomorrow’s Leaders” are common in public schools. A number of mottos would be subject to strict scrutiny and struck down under the panel’s rationale. What about a motto “We Succeed Together”? Some students are loners. What about “School Pride”? Some students are not proud of their school. What about “Stand Tall”? Some students are short. To subject such mottos to strict scrutiny makes no sense.

If mandatory school uniforms, including a motto “Tomorrow’s Leaders,” are subject only to intermediate scrutiny, we see no reason to subject to strict scrutiny an exemption for uniforms for recognized organizations to which students may belong. To jeopardize such a wide- spread and inoffensive practice similarly makes no sense.

The panel then found that the individual defendants had qualified immunity although the institutional defendants did not, and remanded the case for damages to be assessed against the school district and parent association.

The question of school dress codes, including uniforms, continues to be a vexing one under the First Amendment.

 

December 11, 2017 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Saturday, December 9, 2017

Ninth Circuit Upholds Montanta Limit on Judicial Campaign Speech

In its opinion  in French v. Jones, a unanimous Ninth Circuit panel rejected a First Amendment challenge to a Montana judicial ethics rule restricting political endorsements in campaigns.

Montana Code of Judicial Conduct 4.1(A)(7) prohibits judicial candidates from seeking, accepting, or using endorsements from a political party/organization or partisan candidate, although it does allow political parties to endorse and even provide funds to judicial candidates.  Affirming the district judge and upholding the provision's constitutionality, the Ninth Circuit opinion by Judge Jay Bybee surveys the United States Supreme Court's two opinions on the First Amendment and judicial campaign ethics - - - Republican Party of Minnesota v. White (2002) and Williams-Yulee v. Florida Bar (2015) - - - and notes that although the Supreme Court has provided "mixed guidance," the "clear shift in favor of state regulation" and "palpable change" in Williams-Yulee renders the arguments of the challengers unavailing.

220px-John_Mellor_Vanity_Fair_24_May_1873After a rehearsal of the cases, including a Ninth Circuit en banc decision, Judge Bybee applied strict scrutiny.  Montana's compelling governmental interest of "actual and perceived judicial impartiality" had been accepted in Williams-Yulee. The second interest in a "structurally independent judiciary" is also evaluated, with a supporting citation to The Federalist No. 78, and implicitly found to be even "more compelling." The major challenge, however, was that the judicial canon was not narrowly tailored because it was "fatally underinclusive." On this issue, Judge Bybee's opinion again relied on the change wrought by Williams-Yulee, quoting language disapproving on underinclusiveness.  More specifically, the court found that the interest in judicial independence was differently served by endorsements from political parties (whose use was prohibited by the canon) than by endorsements by interest groups. Likewise, the court found that permitting judicial candidates to solicit and use money from political parties was unpersuasive because endorsements are more public, although the information regarding contributions is also available to the public. 

Additionally, the court rejected the equation between the announcement prohibition in White, which was found unconstitutional, and the political party endorsement prohibition at issue.  Party endorsement is not simply "shorthand" for views. "An endorsement is a thing of value: it may attract voters' attention, jumpstart a campaign, give assurance that the candidate has been vetted, or provide legitimacy to an unknown candidate . . ."

The court also rejected the argument that Montana did not show political endorsements cause harm noting that such an argument could lead to a finding that Montana's choice of nonpartisan judicial elections was itself unconstitutional.  Moreover, the elimination of judicial elections entirely is not a less restrictive means consistent with Williams-Yulee.

Although Williams-Yulee was a closely divided case and its reasoning not entirely clear, it provides the basis on which courts are upholding judicial campaigning restrictions.

December 9, 2017 in Campaign Finance, Courts and Judging, Elections and Voting, First Amendment, Opinion Analysis, Speech | Permalink | Comments (1)

Ninth Circuit Says Permit Requirement for Outdoor Weddings Violates First Amendment

The Ninth Circuit ruled this week that the standards for a conditional use permit in Ventura County left too much discretion to the decisionmakers and therefore violated the First Amendment. The ruling reverses a district court's dismissal of the plaintiff's First Amendment claim and sends the case back for a decision on the plaintiff's motion for a preliminary injunction.

The case, Epona, LLC v. County of Ventura, arose when the corporation sought a conditional use permit to use the outdoor area on his rural property for outdoor weddings. County officials denied the permit, concluding that the use was "not compatible with the rural community," that it had "the potential to impair the utility of neighboring property or uses," and that it had "the potential to be detrimental to the public interest, health, safety, convenience, or welfare . . . and the findings [in the local zoning law]." The corporation's owner sued, arguing that the standards and denial violated the First Amendment, and that the denial violated RLUIPA. The district court dismissed the claims.

The Ninth Circuit reversed on the First Amendment claim. The court ruled that Ventura County's standards left too much discretion to the decisionmakers, and therefore raised the possibility of content-based discrimination.

The standards say that a person seeking a conditional use permit for an event, including a wedding, show that the event is (among other things):

(b) compatible with the character of surrounding, legally established development;

(c) not . . . obnoxious or harmful, [and must not] impair the utility of neighboring property or uses;

(d) not . . . detrimental to the public interest, safety, convenience, or welfare;

(e) compatible with existing and potential land uses in the general area where the development is to be located . . . .

The scheme requires permitting officials to make "specific factual findings," which arguably made the standards more determinate.

Nevertheless, the court looked to "the totality of the factors" regarding the scheme and concluded that "the [conditional use permit] scheme fails to provide definite and specific guidelines for permitting officials." Moreover, the court said that the scheme failed to provide a time limit (as required by Freedman v. Maryland), so "compounds the problem created by the lack of definite standards for permitting officials." "Together, these defects confer unbridled discretion on permitting officials in violation of the First Amendment."

At the same time, the court rejected the plaintiff's RLUIPA claim, because the corporation isn't "a religious assembly or institution."

The court sent the case back for a ruling on the plaintiff's motion for a preliminary injunction on the First Amendment claim.

December 9, 2017 in First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, December 5, 2017

Masterpiece Cake Oral Argument

 The Court heard oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission with extensive arguments from the attorney for the cakeshop (Kristen Waggoner),  the Solicitor General, the Colorado Solicitor General, and the attorney for the would-be customers (David Cole).

As predictable, the oral argument was filled with the expansiveness or limits of any doctrine that would permit the cakemaker to refuse to bake a cake for the same-sex wedding reception. Early on, Justices Ginsburg and Kagan asked Waggoner about florists and invitation designers, who Waggoner stated would be engaging in speech, but said "absolutely not" for the hair stylist. Drawing the line - - - what about the chef? the sandwich artist? - - - preoccupied this initial portion of the argument.  However, another limitation that permeated the case was whether the cakemaker's refusal could apply to racial or other identities as well as sexual orientation, or perhaps, whether it was based on identity at all.  For Kennedy, the issue could be that "there's basically an ability to boycott gay marriage." 

Also for Kennedy, however, the question is whether Colorado had been "tolerant" or "respectful" of the cakemaker's religious beliefs.  This invocation of the Free Exercise Clause was given heft by a statement by one of the Commissioners of the Colorado Civil Rights Commission as quoted by Kennedy that "freedom of religion used to justify discrimination is a despicable piece of rhetoric."  Kennedy asks the Colorado Solicitor General to "disavow or disapprove" of that statement.  Kennedy characterizes the statement as expressing a hostility to religion and later lectures the Colorado attorney:

Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it's mutual.
It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs.

In Waggoner's rebuttal, Justice Sotomayor proffered a different view:

Counsel, the problem is that America's reaction to mixed marriages and to race didn't change on its own. It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights.
It's not denigrating someone by saying, as I mentioned earlier, to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.

While it's always perilous to predict the outcome of a decision based n oral argument, if Justice Kennedy is the deciding vote, his attention to the religious aspects of the challenge could make the free speech argument less consequential.

 

December 5, 2017 in Family, First Amendment, Oral Argument Analysis, Religion, Sexual Orientation, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, December 4, 2017

Preview of Masterpiece Cakeshop Argument on First Amendment Challenge to Anti-Discrimination Statute

Set for oral argument Tuesday, December 5, 2017, the high visibility case of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission can be seen as a clash of constitutional principles of individual conscience vs. equality, or as a federalism case, or as part of the backlash to LGBTQ rights, or as part of the rise of religiously-motivated challenges to secular laws.

Recall that a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Speech and Free Exercise Clauses. In the state proceedings, the Colorado Administrative Law Judge (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 lengthy opinion, rejecting the First Amendment claims.

Chocolate_Cake_Flourless_(1)On the First Amendment speech claim, the initial hurdle for the cakemaker is establishing that the cake constitutes speech.  The cakemaker argues that he is a "cake artist." The Court has held that symbolic speech needs to convey a particularized and understood message, Spence v. Washington (1974), but that includes the "unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll," Hurley v. Irish American Gay Group of Boston (1995).  The cakemaker has also argued that the cake itself is so central to the wedding as to be a participant. Thus, the cakemaker as business owner should be able to refuse to make cakes for events with which he disagrees otherwise his speech is being compelled, akin to the landmark flag salute case of West Virginia Bd. of Ed. v. Barnette (1943). 

On the religious claim, the cakemaker essentially argues that the Colorado anti-discrimination law is not a law of neutral and general applicability because it includes sexual orientation as a protected ground and therefore targets (certain) religions, and thus strict scrutiny applies.

On both claims, the oral arguments will most likely include explorations of the slippery slopes.  If the cake is art, then what about restaurant dinners? Photography? Bed and breakfasts?  If the cake is akin to a participant in the wedding celebration, then would the rule extend to birthdays? And can the exemption for individual conscience be limited to sexual orientation?  What about race? Ethnicity or national origin? Gender?

There are a little less than 50 amicus briefs on each side.  The Court has allowed the Solicitor General of the United States to participate in oral argument on the side of the cakemaker, and for the respondents (the Colorado Civil Rights Commission and the original would-be customers) to both participate.

The case has attracted extensive commentary (here's a good round-up by Edith Roberts on SCOTUSBlog) and there is certainly much more to come.

December 4, 2017 in Courts and Judging, Family, Federalism, First Amendment, Food and Drink, Recent Cases, Religion, Speech, Supreme Court (US) | Permalink | Comments (0)

Thursday, November 30, 2017

D.C. Circuit Rebuffs Challenge to Per-Election Base Campaign Contribution Limits

The en banc D.C. Circuit unanimously ruled this week that FECA's per-election base limits on campaign contributions don't violate free speech.

The ruling could give the Supreme Court a chance to reevaluate its stance on the constitutionality of base contributions, or at least per-election base contributions, in light of its most recent ruling on contributions, McCutcheon v. FEC. The Court in that case held that aggregate limits on base contributions violate free speech, even if base contributions themselves don't.

The plaintiffs in Holmes v. FEC challenged FECA's $2,600 base limit per candidate per election. The law means that a person can contribute up to $2,600 to a candidate in a primary, another $2,600 to that candidate in the general, and yet another $2,600 to that candidate in any runoff. In the usual course of things (without a runoff) this allows a person to contribute up to $5,200 to a candidate for the whole cycle.

The plaintiffs claimed that per-election restriction violated free speech, although they didn't take on all base limits. In other words, they wanted to contribute $0 to their favored candidates in the primaries, but $5,200 in the generals. The per-election restriction prevented them from doing that, and they claimed that this violated the First Amendment.

The D.C. Circuit disagreed. Citing Buckley v. Valeo (upholding per-election base limits against a free speech challenge, but not ruling specifically on the per-election nature of them) the court said that Congress's decision in FECA to create per-election restrictions (and not entire cycle restrictions) was a permissible way to implement base limits. In short, the court said that Congress had to create some timeframe for base contribution restrictions--because that's how base contributions work--and a per-election timeframe doesn't seem unreasonable. Said the court:

Contrary to plaintiffs' account of FECA, there is no $5,200 base contribution ceiling split between the primary and general elections. Instead, the Act by its terms established a $2,000 contribution limit, adjusted for inflation, which 'shall apply separately with respect to each [primary, general, and runoff] election.'

. . .

To impose a meaningful contribution ceiling, then, Congress has no choice but to specify some time period in which donors can contribute the maximum amount. There are a host of alternatives in that regard.

. . .

Just as Buckley did not require Congress to explain its choice of $1,000 rather than $2,000 as itself closely drawn to preventing corruption, we see no basis for requiring Congress to justify its choice concerning the other essential element of a contribution limit--its timeframe--as itself serving that interest.

November 30, 2017 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

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.”

Ann_Agnes_Bernatitus
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.

 

 

November 13, 2017 in Abortion, Courts and Judging, First Amendment, Recent Cases, Speech, Supreme Court (US) | Permalink | Comments (0)

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.

RemoveGlassdoor-680kbuspqrh0z56lhud2to9ycwj4urevxou8jsl3yw6
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.

 

 

November 8, 2017 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, October 11, 2017

Ninth Circuit Denies En Banc Review for Berkeley Ordinance Requiring Cell Phone Retail Disclosures

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. 

October 11, 2017 in Courts and Judging, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Ninth Circuit Says California's Prorator Registration Law Likely Violates Dormant Commerce Clause

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.

October 11, 2017 in Cases and Case Materials, Dormant Commerce Clause, Federalism, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0)

Thursday, September 28, 2017

Another Reason Why Justice Gorsuch Matters: Public Sector Unions

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.

September 28, 2017 in Association, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (2)

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.

COKEAs 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.

September 20, 2017 in First Amendment, Food and Drink, Opinion Analysis, Speech | Permalink | Comments (1)

Friday, September 8, 2017

New Hampshire Federal Judge Finds Panhandling Laws Violate First Amendment

 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.

William-Adolphe_Bouguereau_(1825-1905)_-_Petites_Mendiantes_(1880)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]

 

 

September 8, 2017 in Criminal Procedure, Equal Protection, First Amendment, Fourth Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, August 30, 2017

D.C. Circuit Tosses Antitrust, First Amendment Claims of Third Party Presidential Candidates

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.

August 30, 2017 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Tuesday, August 29, 2017

District Judge Dismisses Sarah Palin's Defamation Complaint Against the Ne York Times

 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.

5.3.10SarahPalinByDavidShankboneJudge 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.

 Rakoff concluded:

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.

 

August 29, 2017 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, August 28, 2017

Lawsuits Filed Against Transgender Troop Ban

 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.

TWEETS

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. 

 

August 28, 2017 in Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Gender, Sexuality, Speech, Theory | Permalink | Comments (0)

Tuesday, August 22, 2017

Second Circuit Rules Town Ordinance Prohibiting Day Labor Solicitation Unconstitutional

 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.  

Us-ny)oybIn 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.

 

August 22, 2017 in Cases and Case Materials, First Amendment, Fourteenth Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)