Monday, September 15, 2014
In a 25 page opinion replete with bolded underlined language, Judge Timothy Black held Ohio's statutory provisions prohibiting political false statements in Susan B. Anthony List v. Ohio Elections Commission.
Recall that the United States Supreme Court heard the case as Susan B. Anthony List v. Driehaus last Term and unanimously held that the case was ripe for review, reversing the Sixth Circuit. The Court's opinion made little mention of the substantive First Amendment arguments, although at oral argument, counsel for the anti-abortion group Susan B. Anthony List, referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia.
Judge Black refrains from an explicit Orwellian allusion, but he expresses a similar sentiment: "we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth." (bold underlining in original). However, Judge Black does resort to a phrase attributed to the character Frank Underwood in the television show House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.” (bold underlining in original).
Doctrinally, Judge Black relies on United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, noting that the four Justice plurality held that strict scrutiny should apply and concluding that the federal statute was not necessary to achieve compelling interests and that less restrictive alternatives existed.
In considering the compelling government interest prong, Judge Black distinguished McIntyre v. Ohio Elections Committee (1995), the Court held unconstitutional a state statute prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature. This "right to be anonymous" seemed to rest in part on the government interest in ensuring truthfulness, but as Judge Black writes:
However, in McIntyre, the Supreme Court did not describe the state interest in preventing false speech as “compelling” or even “substantial,” saying only that it was “legitimate” and has “special weight during election campaigns.” McIntyre expressly refrained from any decision regarding the constitutionality of Ohio’s political false-statements laws. Moreover, Defendants cite no evidence that the false statements laws are “actually necessary” to achieve their interest. To be actually necessary, there must be a direct causal link between the restriction imposed and the injury to be prevented. Id.6 Here, instead, Defendants admit that “the consequences of deceptive false statements on elections are ... inherently difficult to quantify.”
As to the narrowly tailored prong, Judge Black found that the statute chilled protected truthful speech, especially important in the political context. Judge Black again emphasizes that the remedy for false speech is true speech, even as he notes that he is not convinced that "counterspeech will always expose lies," especially "in the wake of Citizens United." Nevertheless, the problem of government-determined truth is problematical:
we certainly do not want the Government (i.e., the OEC) deciding what is political truth anyway, for fear that the Government might persecute those who criticize the Government or its leaders. Ultimately, whether or not it is possible to create a system by which impartial citizens could identify lies from the truth is unclear. What is crystal clear, however, is that Ohio’s statutes fail in this respect. The process is inherently flawed.
Judge Black issued both a preliminary and permanent injunction so that the decision is a "final, appealable Order." Whether or not Ohio officials will choose to return to the Sixth Circuit remains to be seen.
Thursday, September 11, 2014
Third Circuit Upholds New Jersey's Ban on Sexual Conversion Therapy Against First Amendment Challenge
The Third Circuit has upheld the constitutionality of New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in its unanimous 74 page opinion in King v. Christie, Governor of New Jersey.
The Third Circuit affirmed the district judge's extensive opinion from last November and reached the same conclusion as the Ninth Circuit did when reviewing a very similar California statute in Pickup v. Brown, albeit on different grounds.
The Third Circuit's opinion by Judge D. Brooks Smith (and joined by Judges Vanaskie and Sloviter), specifically disagrees with the Ninth Circuit's conclusion that SOCE is "conduct" rather than speech, a conclusion the New Jersey district judge essentially adopted. The Third Circuit credits some of the reasoning of Ninth Circuit Judge Scannlain's "spirited dissent" from en banc review in Pickup as well the Supreme Court's Holder v. Humanitarian Law Project. The Third Circuit rejected the principle that there is a sustainable line between utterances that are speech and those that are treatment:
consider a sophomore psychology major who tells a fellow student that he can reduce same- sex attractions by avoiding effeminate behaviors and developing a closer relationship with his father. Surely this advice is not “conduct” merely because it seeks to apply “principles” the sophomore recently learned in a behavioral psychology course. Yet it would be strange indeed to conclude that the same words, spoken with the same intent, somehow become “conduct” when the speaker is a licensed counselor.” . . . . As another example, a law student who tries to convince her friend to change his political orientation is assuredly “speaking” for purposes of the First Amendment, even if she uses particular rhetorical “methods” in the process.
Yet, the court concludes that although such utterances are speech, they are not "fully protected by the First Amendment" because they occur in a professional context. In speech that occurs pursuant to the practice of a licensed profession - - - including fortune-tellers, a case on which the court relies - - - the speech is entitled to less protection.
Precisely, it is entitled to the same level of protection as commercial speech, although importantly the Third Circuit is careful not to hold that this professional speech is commercial speech. In applying the intermediate scrutiny type standard derived from commercial speech, the court finds that the statute "directly advances” the government’s interest in protecting clients from ineffective and/or harmful professional services, and is “not more extensive than necessary to serve that interest.”
The court's distinction between professional and nonprofessional speech, however, may suffer from the same lack of bright lines that it finds with the conduct/speech distinction. The court stresses that professional speech occurs in the context of "personalized services to client based on the professional's expert knowledge and judgement." But in rejecting an argument that the New Jersey statute makes a viewpoint distinction, the court states that the statute
allows Plaintiffs to express this viewpoint, in the form of their personal opinion, to anyone they please, including their minor clients. What A3371 prevents Plaintiffs from doing is expressing this viewpoint in a very specific way—by actually rendering the professional services that they believe to be effective and beneficial.
The Third Circuit's opinion also considered the challenge that the statute was vague and overbroad, noting that the Plaintiffs themselves claim to specialize in the very practice they argue is not sufficiently defined. Similarly, the Third Circuit rejected the Free Exercise Clause claim, affirmed the district judge's conclusion on lack of standing to raise the claims of the minor clients (with some disagreement as to reasoning), and also affirmed on the intervention of an organization.
However, it is the free speech claim that it is the center of this controversy, with the Third Circuit carving out a "professional speech" category, in a disagreement with the Ninth Circuit (and on similar issues with other circuits as it notes), but clearly upholding the statute.
[images from "Ten Days in a Mad House, Nellie Bly, via]
Friday, August 29, 2014
Texas Supreme Court: Injunction Prohibiting Future Defamation an Unconstitutional Prior Restraint But . . .
In its unanimous opinion today in Kinney v. Barnes, the Texas Supreme Court (pictured) considered the constitutionality of requested relief on an injunction in a defamation case for removal/ deletion of speech that has been adjudicated defamatory, and that "prohibits future speech that is the same or similar to the speech that has been adjudicated defamatory."
The court held that an injunction of the former type would be constitutional, while the latter would not.
The court's opinion, authored by Justice Debra Lehrmann, squarely rested its conclusion on state constitutional law, TEX. CONST. art. I, § 8, even as it relied heavily on United States Supreme Court cases on prior restraint under the First Amendment. However, the court specifically declined to "determine whether the Texas Constitution provides greater protection than the First Amendment on the specific issue presented to us, as the U.S. Supreme Court has not definitively addressed it."
The trial and intermediate appellate court both granted summary judgment in favor of the defendant based on the unconstitutionality of the relief sought. However, the court found that an injunction could
order Barnes to remove the statements at issue from his websites (and request that third-party republishers of the statements do the same) upon a final adjudication that the statements are defamatory. Such an injunction does not prohibit future speech, but instead effectively requires the erasure of past speech that has already been found to be unprotected in the context in which it was made. As such, it is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint.
This would be true assuming that the standards for an injunction were otherwise met, with the understanding that damages are the preferred remedy for defamation. However, as to future statements, an injunction would be an impermissible prior restraint, in part because it would be almost necessarily overbroad:
The particular difficulty in crafting a proper injunction against defamatory speech is rooted in the contextual nature of the tort. In evaluating whether a statement is defamatory, the court construes it “as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement.” [citation omitted]. Given the inherently contextual nature of defamatory speech, even the most narrowly crafted of injunctions risks enjoining protected speech because the same statement made at a different time and in a different context may no longer be actionable. Untrue statements may later become true; unprivileged statements may later become privileged.
Yet in some ways, this observation highlights the problem with the removal of the adjudged defamatory statement. It too is contextual and time-bound, but arguably this becomes (temporarily) determined if there is a finding that it is defamatory.
The court rejected the notion that "the Internet is a game-changer" and also rejected the assertion of the importance of "cyber-bullying and online hate speech": "It is enough to say that neither of those is at issue here."
Thursday, August 28, 2014
As we noted in June, the United States Supreme Court has granted certiorari in Elonis v. United States, a case regarding a criminal conviction for threats against his estranged wife and others posted on Facebook. We've had to amend that post for reasons explained below.
As presented in the certiorari question, the issue is:
Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.
However, in its Order, the Court stated:
In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."
The Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof. There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate.
The doctrine of "true threats" has long been a fraught one. As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech. The Court's grant of certiorari may - - - or may not - - - indicate that some Justices found that Elonis's facebook postings failed to rise to the level of true threats. Undoubtedly, however, this case will be watched not only by those interested in "free speech on the internet" but also by those interested in "intimate partner violence."
At times, this inquiry becomes grammatical. For example, the Third Circuit found that a particular posting that Elonis claimed was conditional and therefore could not be a "true threat," could have reasonably been found by a jury to be a true threat.
The Third Circuit extensively quotes the facebook postings of Elonis.
But for bloggers, requoting this language can run afoul of the policies of internet providers, servers, and search engines regarding profanity and "adult content." It's an interesting illustration of the limits of the First Amendment by the state action doctrine. It leaves the blogger with several choices, including trying to use dashes or asteriks in words or attempting to link more specifically to the opinion for the quoted passages (although links are also covered by most "adult content" policies, albeit more difficult to detect).
It will be interesting to see what language choices are made by the advocates, the Court, and those reporting on the opinion.
Wednesday, August 27, 2014
Sixth Circuit Rejects First Amendment Challenge by "Bible Believers" Excluded From "Arab International Festival"
A divided Sixth Circuit considered the problem of the hecklers' veto, as well as free exercise and equal protection claims, in its opinion today in Bible Believers v. Dearborn County, with the majority of the panel finding that the district judge's grant of summary judgment in favor of the government should be affirmed.
The controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach." Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"), a "severed pig's head on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment." A crowd gathered, seemingly mostly of children, who yelled back and threw items at the preachers. A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct: "You need to leave. If you don’t leave, we’re going to cite you for disorderly. You’re creating a disturbance. I mean, look at your people here. This is crazy!” They were eventually escorted out.
On the free speech claim, the opinion written by Judge Bernice Donald found there was little disagreement that the Bible Believers "engaged in protected speech" and "that the Festival constituted a traditional public forum."
More contentious, however, was whether the government's actions were "content neutral." The court first concluded that the operations plan was to "ensure safety and keep the peace" and thus to be evaluated under the standard of Ward v. Rock Against Racism. But the court also extensively analyzed whether the heckler's veto principle was operative: "[l]isteners’ reaction to speech is not a content-neutral basis for regulation,” citing Forsyth Cnty. v. Nationalist Movement (1992). Yet raising listener "reactions" circles back to the issue of whether the speech was protected and the court discussed two Supreme Court cases from the mid-twentieth century—Terminiello v. City of Chicago, 337 U.S. 1 (1949), and Feiner v. New York, 340 U.S. 315 (1951)— as providing "some initial boundaries for the heckler’s veto doctrine." In applying these cases, as well as Cantwell v. Connecticut, 310 U.S. 296 (1940) (as Sixth Circuit precedent), the court, referencing a video from Festival incident, found that there was actual violence and that law enforcement was simply discharging their duty to maintain the peace and removing the speakers for their own protection.
For Judge Eric Clay, dissenting, "law enforcement is principally required to protect lawful speakers over and above law-breakers." Judge Clay also notes that it was the government that moved for summary judgment and that reliance on a video is problematical:
The key fact in our case, by contrast, is the question of Plaintiffs’ intent. That is not a fact shown on the videotape—it is an idea that existed in the mind of the speakers. Jurors might conceivably find an intent to incite based on inferences drawn from Plaintiffs’ sermonizing. We judges are prohibited from doing so.
While there are free exercise, equal protection, and municipal liability isses, the majority treats these summarily, and clearly the central issue is speech that provokes - - - and may be intended to provoke - - - a violent reaction from a crowd.
Sunday, August 24, 2014
The Ninth Circuit ruled last week in International Society for Krishna Consciousness of California, Inc. (ISKCON) v. City of Los Angeles that the ban on continuous or repetitive solicitation at Los Angeles International Airport--including a ban on solicitation in parking lots and sidewalks--did not violate the First Amendment.
This final ruling ends this long-running case, which worked its way back and forth between the trial court, appeals court, and state courts for nearly two decades.
The provision at issue, Section 23.27(c) of the Los Angeles Administrative Code, bans solicitation in the LAX terminal, sidewalks, and parking lots. ISKCON wished to solicit in these areas and argued that the ban violated free speech.
The Ninth Circuit applied familiar forum analysis and ruled that the terminal, surrounding sidewalks, and parking lots were non-public forums and that the government's reasons for the ban--reducing congestion and fraud at LAX--were legitimate. The court said that changes to security and the resulting reduction in space available for passengers since 9/11 made the government's interests stronger than the interests in Int'l Soc'y for Krishna Consciousness, Inc. v. Lee (Lee I) (upholding the Port Authority's ban on solicitation in New York City's airport terminals). ISKCON goes a step farther than Lee I, however, in that it specifically upholds the ban on sidewalks and parking lots, too. As to sidewalks, the court said,
In all events, [the government's] interest in reducing congestion only heightened along LAX's narrow, oft-crowded sidewalks, which span but twelve feet in certain areas. Furthermore, [the government's] interest in protecting against fraud and duress is just as strong on the sidewalks as it is inside the terminals.
The ruling aligns the Ninth Circuit with the Eleventh, which upheld a similar ban in ISKCON Miami, Inc. v. Metropolitan Dade County.
Tuesday, August 19, 2014
Can a city prohibit police officers from making monetary contributions to political campaigns, including contributions to their union's political action committee? The Third Circuit, in its opinion in Lodge No. 3, Fraternal Order of Police v. City of Philadelphia concludes that such a rule violates the First Amendment.
The history behind the prohibition is a fascinating one, which the court's opinion by Judge Thomas Hardiman discusses as great length because one "cannot understand" the prohibition without "reference to Philadelphia's efforts to combat patronage" given its unsavory history. As the court explains:
The nefarious relationship between Philadelphia’s Republican machine and its police force culminated in September 1917 with the scandal of the “Bloody Fifth” Ward, where officers beat an opposition candidate, terrorized his supporters, and killed a detective who attempted to intervene. The incident led to the arrest of the mayor and the conviction of six police officers, as well as public outcry for the insulation of the civic bureaucracy from politics. Amidst these calls for reform, in 1919 the Pennsylvania Assembly granted Philadelphia a new Charter, which enacted a series of reforms aimed at reducing corruption within government and the police department.
The present rule, adopted in 1951, prohibits political contributions by police officers as a method of combating corruption and promoting public confidence. The court analyzed the prohibition under United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995), requiring the government "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." The Third Circuit agreed with the district court, although not with much enthusiasm, that the recited harms were real. However, the Third Circuit disagreed with the district judge that the second prong was satisfied, holding that the regulation did not alleviate the harms in a sufficiently direct and material manner.
In part, the direct and material failure was based on the exclusive application to police officers:
The City also fails to persuade us why the contribution ban should apply only to the police, and not to the approximately 20,000 other individuals in its employ. The record shows that the Republican machine historically extracted political assessments from all civic employees: the practice was so pervasive that, in the early 20th century, the machine collected contributions from 94 percent of the city’s workforce. If the Charter ban’s purpose was to end such compulsory wage contributions, it is unclear why the City would enforce the ban only against the police. Moreover, the City has made no attempt to show that the Democratic Party’s recent dominance in Philadelphia politics was achieved through corruption.
As the court notes, the regulation also applied to firefighters, but the Philadelphia firefighters’ union "in a case remarkably similar to this one, successfully challenged the ban as an unconstitutional infringement on its members’ First Amendment rights" in 2003 and the city did not appeal. Moreover, the court notes that the city is "simultaneously condoning political activities by the police that have similar, if not more pernicious, implications" than the contribution bar.
The Third Circuit also relies on recent United States Supreme Court cases on campaign finance such as McCutcheon v. FEC and Citizens United v. FEC, gaining support for its conclusion that the regulation violates the First Amendment.
The opinion notes that the city has other ways to achieve its goals: "for example, the prohibition of automatic paycheck deductions, or greater enforcement of existing anti-solicitation measures." Even as it says it is "loath to disturb" a rule that has been in effect for decades given Philadelphia's history of corruption, the court makes clear that the rule has outlived its usefulness - - - and its constitutionality.
Thursday, August 14, 2014
ConLaw Profs Pen Letter Criticizing University of Illinois Rescission of Offer to Academic for Tweets
When University of Illinois at Urbana-Champaign officials decided to rescind the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin, they must have known there would be controversy. Salaita himself has been no stranger to controversy while at Virginia Tech, but UI officials have focused on his recent tweets on the subject of Gaza.
While Salaita's area is not law, it's difficult not to be reminded of a similar situation involving Erwin Chemerinsky seven years ago. The new law school at UC-Irvine offered him a position as Dean but then rescinded it after reading his newest op-ed, this one criticising a plan by then Attorney General Alberto Gonzales regarding death row appeals.
There was much "outcry" over the Chemerinsky "rescission" (and of course Chemerinsky became Dean, a position he retains).
There is a good deal over Salaita. Peter Schmidt has a good discussion of the Salaita controversy for The Chronicle of Higher Education, with a follow up article noting that 300 scholars have vowed to boycott events at the university unless it rescinds its rescission.
Dorf and Katherine Franke have penned a five page Letter to the Chancellor of U of I from "scholars of free speech and constitutional law" discussing the First Amendment and urging the appointment be honored.
Faculty members who would like to be signatories should contact Katherine Franke by email: kfranke (AT) law.columbia.edu.
Tuesday, August 12, 2014
Third Circuit: Attorney Advertising Rule Regarding Excerpts from Judicial Opinions Violates First Amendment
The New Jersey Supreme Court's Guideline 3 governing attorney advertising provides:
An attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.
The Third Circuit's opinion in Dwyer v. Cappell found this guideline violated the First Amendment's protection of commercial speech in a rather straightforward application of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). The court chose to analyze the regulation as one of mandated disclosure - - - the entire opinion must be provided - - - rather than one of prohibition, although the Guideline
bears characteristics of both categories. Yet we need not decide whether it is a restriction on speech or a disclosure requirement. This is because the Guideline is not reasonably related to preventing consumer deception and is unduly burdensome. Hence it is unconstitutional under even the less-stringent Zauderer standard of scrutiny.
The case arose because New Jersey attorney Andrew Dwyer, specializing in employee representation, ran afoul of Guideline 3 - - - which may have been specifically targeted at him - - - by using on his website language from judicial opinions in attorney fee award matters that duly assessed his competency. At bottom is the general concept of professional responsibility prohibiting judicial endorsement of attorneys, but in the context of fee award decisions, such assessment is explicitly required. One judge objected to the use of his comments in an opinion and Guideline 3 eventually resulted.
The Third Circuit implicitly rejected the notion that such excerpts were inherently misleading and noted that even if the excerpts were "potentially misleading to some persons," there is no explanation of how "Dwyer’s providing a complete judicial opinion somehow dispels this assumed threat of deception." Moreover, the Third Circuit found under Zauderer that the disclosure requirement was burdensome: accurately quoted material is not acceptable absent the full-length judicial opinion and even "a hyperlink to unquoted portions of the opinion fails the Guideline."
The Third Circuit's conclusion is well-founded in established First Amendment doctrine that robustly protects advertising, even by attorneys.
Wednesday, August 6, 2014
The D.C. Circuit ruled yesterday in Stop This Insanity, Inc., Employee Leadership Fund v. FEC that the federal restrictions on corporate PACs do not violate the First Amendment. But in the wake of Citizens United, which held that corporations didn't have to establish separate PACs to engage in political speech in the first place, the ruling probably won't much matter.
The case arose when Stop This Insanity, Inc., or "STII," a corporation, sought to establish a separate PAC to solicit and spend funds on political speech. But when STII realized that its PAC would be subject to federal regulations--in particular, restrictions on whom and when the PAC could solicit--it filed suit, arguing that the restrictions violated the First Amendment. On the other hand, STII did not complain (obviously) about the benefit its PAC received under federal regulations, that it did not have to disclose its fundraising expenses. The court summed up its claim:
Simply put, Stop This Insanity would like to use its segregated fund [its PAC] to solicit the entire public while concealing its expenses for such solicitation.
STII argued that Citizens United compelled this result. In particular, STII said that Citizens United prohibits restrictions based on distinctions between different organizational entities, and the regulations single out corporate PACs for restrictions on solicitation. STII claimed that the restrictions were therefore subject to the highest scrutiny, and failed.
The court disagreed. It said that the solicitation restrictions did not prevent a PAC from speaking (the way a corporation was prevented from speaking before Citizens United); instead, they simply regulated the speech in the nature of a disclosure. Moreover, the court noted that after Citizens United corporate PACs are functionally obsolete: they remain on the books, but they serve no particular purpose, because corporations can now spend on their own. Given that reality, restrictions on corporate PACs (which a corporation, like STII, voluntarily established) don't unduly restrict a corporation's speech, because the corporation itself can speak (with restrictions that "are less burdensome" than those on a corporate PAC). As the court said,
Despite the availability of a more robust option--at least, when it comes to independent expenditures--[STII] has decided to do things the hard way. And now, trapped in a snare it has fashioned for itself, STII decries its inability to use the [PAC] in the way it sees fit--without the limits Congress attached to the operation of these funds.
The ruling means that federal solicitation restrictions on corporate PACs stay on the books, at least unless and until the case is appealed.
But in practical terms the ruling probably won't mean much. That's because a corporation that wants to solicit and spend money for political speech today probably would opt for the more "robust option"--simply solicit and spend the money itself, the "less burdensome" way to do it--and not "do things the hard way" by establishing a corporate PAC. In other words, while corporate PACs and the restrictions on them stay on the books, it seems doubtful that any corporation today would use them for its political speech.
Tuesday, July 15, 2014
The D.C. Circuit ruled today that a former teacher in the D.C. schools did not enjoy protection under the First Amendment after he was fired for sending an e-mail complaining about his principal's misrepresentation of student test scores to former Chancellor Michelle Rhee.
The teacher, Bruno Mpoy, had a long list of complaints against his principal, Donald Presswood, when he sent an e-mail to Rhee. Nearly all of these involved classroom conditions. But after Mpoy was fired (and undoubtedly aware of the first part of the Garcetti test and the D.C. Circuit's interpretation of it), he focused on this sentence in the e-mail:
Dr. Presswood, the principal of Ludlow Taylor, misrepresented students' performance and results on the DCCAS Alternative [the achievement test used to measure student learning and improvement].
Mpoy argued that this sentence was not written pursuant to his official responsibilities--and that he therefore jumped the first Garcetti hurdle by showing that he spoke "as a citizen." (As a threshold matter, in order for a public employee's speech to enjoy First Amendment protection, the employee must have spoken (1) as a citizen and (2) on a matter of public concern. Only then, if a plaintiff can so show, the court goes on to apply the free speech test, whether the government "had an adequate justification for treating the employee differently from any other member of the general public.")
The D.C. Circuit disagreed. The court ruled that Mpoy wrote this sentence in his capacity as an employee:
In [the context of the e-mail], the sentence about the misrepresentation of the students' results was also plainly a greivance about Presswood's interference with Mpoy's duty to assess and ensure the achievement of his students.
That means that Mpoy didn't even get out of the gate under Garcetti. No citizen speech; no protected speech; no First Amendment protection.
The court added a section to address the recently decided Lane v. Franks. In that case, the Supreme Court held that the First Amendment "protects a public employee who provided truthful sworn testimony, compelled by subpoena," when testifying was outside the scope of the employee's "ordinary job responsibilities." The court considered the possibility that the adjective "ordinary" signalled a narrowing of the area of employee speech left unprotected by Garcetti.
But the court said that it didn't have to decide that; it ultimately didn't matter. That's because the school officials could reasonably believe that they could have fired Mpoy--and therefore enjoyed qualified immunity.
Thursday, July 3, 2014
In its opinion in People v. Marquan M, the New York Court of Appeals (NY's highest court), found that Albany Local Law 11 (2010) criminalizing cyberbullying was unconstitutional under the First Amendment.
The local law for Albany County criminalized cyberbullying against any "minor or person" (with "person" interestingly defined as including corporations) with cyberbullying defined as:
any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.
The majority opinion, authored by Judge Victoria Graffeo for four additional judges over a two-judge dissent, found that the law was overbroad under the First Amendment: "the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult."
The defendant and his actions here - - - a 15 year old who used Facebook to anonymously post "photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information," with "vulgar and offensive" "descriptive captions" - - - were within the "cyberbullying" that the Local Law intended to proscribe. But even Albany County agreed that the local law was overbroad. However, the County argued that the severability clause of the local law should be employed to excise the word "person" so that the only covered victims were minors. But the court found that even that would not "cure all of the law's constitutional ills." The dissenters would have engaged in saving constructions.
In ruling that a local law intended to criminalize as a misdemeanor cyberbullying did not survive the First Amendment because it was overbroad, New York's highest court left open the possibility that a prohibition of cyberbullying could be more narrowly crafted to survive First Amendment review: "the First Amendment does not give defendant the right to engage in these activities."
However, the court's opinion offers little guidance about how such a law or policy should be drafted. New York's Dignity for All Students Act as amended in 2012 places the responsibility for developing "policies and procedures intended to create a school environment that is free from harassment, bullying and discrimination" on school boards. While Albany's law was a general criminal statute, school boards will undoubtedly be considering Marquan M. as they review their current "cyberbullying" prohibitions in light of the First Amendment. They may also be recalling the Third Circuit's unhelpful intervention in a pair of "My Space" cases in which principals were arguably "bullied.
And undoubtedly, those interested in cyberbullying in and out of schools will be watching the "true threats on Facebook case," Elonis v. United States, to be heard by the United States Supreme Court next Term.
Monday, June 30, 2014
A sharply divided Supreme Court ruled today in Harris v. Quinn that a state cannot require nonunionized home-healthcare workers, or personal assistants, in the state's Medicaid program to pay "fair share" union dues. The majority held that a fair-share-dues requirement for non-union members violates their First Amendment association rights.
The ruling is a victory for non-unionized home-healthcare workers, and for anti-union types generally. But on the other hand, the ruling did not go as far as it might have in striking public sector fair share requirements. The majority took another shot at public sector fair share requirements (it earlier took a shot in Knox), prompting the dissent to go to great lengths to defend the constitutionality of those requirements, and setting up those requirements (yet again) for reconsideration.
In other words, the majority strongly criticized Abood, but did not overrule it. The dissent vigorously defended it. We can expect more challenges, with the Court moving to overturn it. (Abood held that a state may require fair share fees for non-union members in a public sector union in the interests of preventing free-riding and labor peace.)
The majority (penned by Justice Alito, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas) held that personal assistants were not full state employees--they're supervised principally by the individual clients they serve. Moreover, state law limits the union's role in representing them. As a result, the Court said that Abood's rationales don't apply, and declined to "extend" Abood. The Court applied "exacting scrutiny" and held that the state fair-share requirement failed.
The dissent (penned by Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor) disagreed that personal assistants were different than public employees for Abood purposes. Dissenters would have applied Abood in a straightforward way and upheld the state fair-share requirement.
But while the majority and dissent jousted over the status of personal assistants (in relation to public employees in Abood)--and while the majority ultimately hung its hat on its distinction between public employees and personal assistants--it was clear that the real struggle is over Abood itself. The majority left it hanging (once again) by a thread, while the dissent vigorously defended it.
As in Knox, the majority opinion here begs for another case, another chance to overturn Abood--a move that would strike a very serious blow to public sector unions. In the meantime, it continues to chip away at Abood's foundation, planting time bombs in Harris and Knox that it will use whenever it gets the next case that puts Abood squarely within its range.
Until that time comes, however, Abood stays on the books. And public sector fair-share requirements survived again, even if bruised and battered.
Thursday, June 26, 2014
United States Supreme Court Declares Massachusetts' Buffer Zone Unconstitutional in McCullen v. Coakley
A unanimous Court, albeit in separate opinions, found the Massachusetts statute imposing a 35 foot buffer zone around places where abortions are performed violates the First Amendment in its opinion in McCullen v. Coakley, reversing the First Circuit.
Writing for the Court, Chief Justice Roberts - - - who, unusually, did not ask any questions during the oral argument - - -found that the statute was not subject to strict scrutiny because it was content and viewpoint neutral, despite arguments to the contrary. However, the Court found that the statute failed the so-called "time, place, and manner" test articulated in Ward v. Rock Against Racism, 491 U. S. 781 (1989). The Court's opinion - - - joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan - - - concluded that the statute burdened more speech than necessary and was not sufficiently closely tailored. In large part, this was based on the statute's exceptional coverage of public streets and sidewalks. It was also based on the specific petitioners in the case, who are not "protesters," but people who "attempt to engage women approaching the clinics in what they call 'sidewalk counseling,' which involves offering information about alternatives to abortion and help pursuing those options." Further, the Court articulated other less restrictive means available to Massachusetts, including targeted injunctions, and found that the record did not support the need for Massachusetts' sweeping approach. As the Court concluded:
Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a tradi tional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.
Justice Scalia's concurring opinion, joined by Justices Kennedy and Thomas, criticizes the Court's opinion as one
that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily—or at least unnecessarily insofar as legal analysis is concerned.
Justice Alito, wrote separately but briefly to express his belief that the statute discriminates on the basis of viewpoint.
The takeaway is this: In a unanimous opinion, the Court ruled that Massachusetts went too far in seeking to protect the reproductive rights of women seeking abortions and infringed the First Amendment rights of those who seek to counsel them to change their minds. The Court's opinion approves more narrow methods governments might use to protect the reproductive rights of women entering clincs. But four Justices seem inclined to find a violation of the First Amendment in even more narrow government attempts.
Thursday, June 19, 2014
Nathaniel Zelinsky, writing over at Concurring Opinions, traces the history and subsequent use of Justice Potter Stewart's famous phrase from his concurring opinion in Jacobellis v. Ohio. Zelinsky found earlier uses of the phrase, or very similar phrases, but writes that Alan Novak, one of Justice Stewart's clerks, "remembered the phrase emerging out of a conversation with the justice. And it was, according to Novak, Stewart who wrote the actual opinion, including the seven words." Justice Stewart did not intend "to create a widespread sensation"; indeed, news coverage at the time all but ignored the phrase--and all but ignored Jacobellis, in favor of Quantity of Books v. Kansas, another obscenity case handed down that day.
Zelinsky offers this advice:
The unintentional popularity of "I know it when I see it" should be a note of caution for legal authors in the public sphere, from jurists to commentators more generally: it is very difficult to predict in advance what will capture widespread attention among the non-legal public. . . . On the flip side, the legal corpus is full of opinions whose authors hoped would be earthquakes but whose prose was then largely ignored.
Wednesday, June 18, 2014
In an extensive opinion today in Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185, a divided Trademark Trial and Appeal Board canceled the trademark of the term "redskins" as violative of section 2(a), 15 U.S.C. § 1052(a), prohibiting registration of marks that may disparage persons or bring them into contempt or disrepute.
The majority opinion relied upon dictionary definitions, expert opinions, and surveys to conclude that the term is disparaging - - - and was so at the time the trademark was approved. The majority rejected the laches defense in part because "there is an overriding public interest in removing from the register marks that are disparaging to a segment of the population beyond the individual petitioners."
Judge Bergsman's dissenting opinion disagreed with the
majority’s decision to grant the petition on the claim of disparagement because the dictionary evidence relied upon by the majority is inconclusive and there is no reliable evidence to corroborate the membership of National Council of American Indians.
To be clear, this case is not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today. The provisions of the statute under which the Board must decide this case – §§ 2(a) and 14(3) of the Trademark Act, 15 U.S.C. §§ 1052(a) and 1064(3) – require us to answer a much narrower, legal question: whether the evidence made of record in this case establishes that the term “redskins” was disparaging to a substantial composite of Native Americans at the time each of the challenged registrations issued.
Neither the majority or dissenting opinion - - - both of which are lengthy - - - engage with the possible First Amendment free speech issues or with the possible Equal Protection issues; this is decidely a case interpreting a statutory provision regarding trademark.
Yet the constitutional contours of speech and equality are evident in both opinions, just as constitutionalism has been implicated in the controversies surrounding the use of the term. Thus, while a "trademark case," Blackhorse v. Pro-Football, Inc. is worth consideration by constitutional students and scholars. And its comparison to the "dykes on bikes" trademark case, which I've discussed here, is also worth consideration by those interested in constitutionalism, democracy, and language.
Monday, June 16, 2014
Unanimous Supreme Court Returns Susan B Anthony List v. Driehaus for Decision on Election Law Merits
The Court's unanimous opinion in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements, reversed the Sixth Circuit's determination that the case was not ripe. Recall that Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List, but the Sixth Circuit held the SB List could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."
As we discussed after oral argument, the Justices seemed inclined to find the courts had Article III power to hear the case, although there was some doctrinal fuzziness whether the case should be analyzed as one of "standing" or one of "ripeness." Footnote 5 of the opinion by Justice Thomas for the Court resolves the question firmly in favor of standing:
The doctrines of standing and ripeness “originate” from the same Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 335 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case “boil down to the same question.” Med- Immune, Inc. v. Genentech, Inc., 549 U. S. 118, 128, n. 8 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392 (1988), and Babbitt v. Farm Workers, 442 U. S. 289, 299, n. 11 (1979), we use the term “standing” in this opinion.
The Court reiterated the established criteria: (1) an "injury in fact" (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a likelihood that the injury “will be redressed by a favorable decision," noting that the hurdle for the organization of Susan B. Anthony List was the "injury in fact" requirement. To establish "injury in fact," the organization had to demonstrate the threat of future prosecution by the election board was sufficiently "concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” and "certainly impending,” or there is a “‘substantial risk’ that the harm will occur.”
The shadow of the First Amendment was apparent in the Court's reasoning: "The burdens that [Election] Commission proceedings can impose on electoral speech are of particular concern here."
The Court's relatively short and unanimous opinion breaks no new ground. It draws on establishing standing precedent which it applies in a relatively straightforward manner, and then quickly dispatches the "prudential" rationale for rejecting jurisdiction.
However, it's worth considering as a contrast a case uncited by the Court - - - Los Angeles v. Lyons (1983) - - - in which a deeply divided Court decided that Adolph Lyons did not have standing to challenge the City of Los Angeles police department's sometimes fatal practice of administering a "chokehold" to persons it stopped for traffic violations. As Justice Marshall wrote in the dissenting opinion (joined by Justices Brennan, Blackmun, and Stevens):
Since no one can show that he will be choked in the future, no one — not even a person who, like Lyons, has almost been choked to death — has standing to challenge the continuation of the policy. The city is free to continue the policy indefinitely as long as it is willing to pay damages for the injuries and deaths that result. I dissent from this unprecedented and unwarranted approach to standing.
Perhaps Susan B. Anthony List demonstrates that Justice Marshall's view has proven to be correct and that Lyons can now be disregarded. Or perhaps, studies such as this and this are correct that the status of Susan B. Anthony List as an anti-abortion organization and the status of Adolph Lyons as an African-America male confronting law enforcement are just as important as doctrine.
Friday, June 13, 2014
Reversing the federal district court, the Fifth Circuit issued its opinion in United States v. Richards upholding the Animal Crush Video Protection Act of 2010 against a First Amendment challenge. At 14 pages, the opinion authored by Judge Stephen Higginson is workmanlike but ultimately fails to satisfy the concerns raised by the statute.
Recall that the 2010 Act, 18 U.S.C. § 48 (2010), is the Congressional revision of the crush porn statute the United States Supreme Court found unconstitutional in United States v. Stevens. In Stevens, the eight Justice majority found that the statute criminalizing portrayals of animal cruelty was of "alarming breadth" and could operate to criminalize popular hunting television programs. When Congress passed an amended statute, it included a provision that the portrayal "is obscene" and specific exclusions for hunting and slaughter.
Unlike the criminal defendant in Stevens (who was prosecuted for dog-fight videos), the defendants in Richards were charged with producing "crush porn" in which there is the depiction of cruelty to a small animal in an arguably sexual manner.
The First Amendment challenge to the statute contended that the "obscene" prong of the statute did not incorporate the necessary Miller v. California test for obscenity. Under Miller, this requires "sexual conduct," but Congressional history seemed debatable on this requirement. Disagreeing with the district judge, however, the Fifth Circuit panel concluded it should not look to "variable and debatable legislative history to render unconstitutional a statute that incorporates a legal term of art with distinct constitutional meaning." Thus, it held that "§48 incorporates Miller obscenity and thus by its terms proscribes only unprotected speech."
The Fifth Circuit rejected the argument that §48 proscribes only a certain type of obscenity in contravention of what some would call the "categorical approach" employed by the Court in the hate speech case of R.A.V. v. City of St. Paul. After describing this argument, the Fifth Circuit veered into the much-disparaged "secondary effects" doctrine to conclude that
even assuming, for the sake of argument, that the creators and distributors of animal crush videos, like Richards and Justice, intend to advance a distinct message, perhaps about barbarism, § 48 is justified with reference not to the content of such a message but rather to its secondary effects—wanton torture and killing that, as demonstrated by federal and state animal-cruelty laws, society has deemed worthy of criminal sanction.
The panel thus concludes that "Section 48 thus is narrow and tailored to target unprotected speech that requires the wanton torture and killing of animals." In doing so, the opinion noted that "a long history and substantial consensus, as seen in state and federal legislation, are indicative" of a compelling or substantial interest - - - and cited for this proposition New York v. Ferber. Ferber, upholding the constitutionality of criminalizing child pornography, is of course the very case Chief Justice Roberts' opinion for the Court in United States v. Stevens distinguished; the Court rejected the analogy between child porn and (animal)crush porn.
The Fifth Circuit en banc should take another look at United States v. Richards and the First Amendment contours of the "crush porn" statute without reference to "secondary effects."
Wednesday, June 11, 2014
The Sixth Circuit today denied a preliminary injunction to a group of religious employers and religious nonprofits challenging the exemption from and the accommodation to the contraception mandate in the Affordable Care Act. The ruling is just the latest in a line of challenges to the accommodation. We posted most recently here. (These cases are different than the Hobby Lobby case now before the Supreme Court: these cases involve religious nonprofits that take issue with the accommodation to the contraception mandate, where the Hobby Lobby case involves a corporation's challenge to the mandate itself.)
The cases are unusual, even surprising, in that the plaintiffs challenge the government's attempt to accommodate their religious beliefs as itself a violation of their religious rights.
The organizations challenged the exemption from and the accommodation to the mandate under the Religious Freedom Restoration Act and the First Amendment (speech and religion clauses). The court ruled that they failed to demonstrate a likelihood of success on the merits and thus affirmed the lower court's denial of a preliminary injunction.
The court noted that some of the plaintiffs were religious employers who qualified for the exemption from the mandate. Because the exemption exempts them, and because it does not require any particular act on the part of the organizations, the court said that the exemption didn't violate the organizations' speech or religious rights.
As to the religious non-profits, the court said that they qualify for the accommodation by simply certifying that they object to the mandate--and that this didn't interfere with their religious or free speech rights. The court rejected the plaintiffs' arguments that the certification itself somehow implicated the organizations in providing contraception in violation of their religious rights or free speech rights. In language shy of, but no less certain than, the almost hostile ruling by Judge Posner in the Seventh Circuit rejecting a similar claim the court said,
The appellants are not required to "provide" contraceptive coverage. . . . The appellants are not required to "pay for" contraceptive coverage. . . . Moreover, the appellants are not required to "facilitate access to" contraceptive coverage. . . . Submitting the self-certification form to the insurance issuer or third-party administrator does not "trigger" contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.
Monday, June 2, 2014
The Eighth Circuit ruled in Snider v. City of Cape Girardeau that Missouri's statute banning flag desecration was facially unconstitutional. The court held that the statue was overbroad in violation of the First Amendment, and that there was no possible narrowing construction. The court also rejected the arresting officer's claim of qualified immunity.
The case arose when a Cape Girardeau police officer arrested an individual for desecrating an American flag, in violation of Missouri law. The officer made the arrest pursuant to a warrant issued by a local judge and based upon the officer's statement of probable cause to the county prosecuting attorney.
The ruling couldn't have been a surprise to anyone, except possibly the officer and the county prosecutor. (The ruling included this telling sentence: "Both Officer Peters and [the prosecuting attorney] stated that they were unaware of the United States Supreme Court's decisions in Texas v. Johnson and United States v. Eichman, which struck down statutes criminalizing flag desecration as unconstitutional.") The court ruled that Missouri's statute was facially unconstitutional under those cases.
The court also ruled that the officer did not enjoy qualified immunity. The officer argued that he should be entitled to qualified immunity, because the prosecutor and judge signed off on a warrant. He cited Messerschmidt v. Millender, where the Supreme Court granted qualified immunity to an officer who executed a search warrant unsupported by probable cause because, in part, a neutral magistrate issued the warrant.
But the Eighth Circuit noted that the Messerschmidt Court said that the neutral magistrate's involvement did "not end the inquiry into objective reasonableness." The court also noted that the standard in Malley v. Briggs survived Messerschmidt. The Malley standard says that there's no qualified immunity where "if it obvious that no reasonably competent officer would have concluded that a warrant should issue." Here, it was obvious.
The ruling upholds a lower court ruling granting attorney's fees to the plaintiff.