Monday, March 26, 2018

Sixth Circuit Upholds State Single-Subject Ballot-Initiative Rule Against First Amendment Challenge

The Sixth Circuit ruled last week that Ohio's single-subject rule for ballot initiatives doesn't violate the First Amendment. The ruling upholds a state Ballot Board order requiring the plaintiffs to split their initiative--which includes one question on term limits for state supreme court justices and another to apply all laws "that apply to the people" of the state "equally to the members and employees of the General Assembly"--into two.

The case, Committee to Impose Term Limits v. Ohio Ballot Board, arose when the state Ballot Board rejected the plaintiffs' request to include a ballot question with two parts--one to impose term limits on Ohio supreme court justices, and the other to apply laws equally to members of the General Assembly. The Board ruled that state single-subject rule for ballot initiatives required the plaintiffs to split the questions. The plaintiffs sued, arguing that the Board's ruling violated the First Amendment.

The Sixth Circuit disagreed. The court rejected the plaintiffs' argument that the single-subject rule was a content-based restriction on speech and instead applied the Anderson-Burdick balancing test for "minimally burdensome and nondiscriminatory regulations." Under the balancing test, the court said that the single-subject rule amounted to only a minimal burden on the plaintiffs, but that it was justified by multiple state interests (avoiding confusion at the ballot box, promoting informed decision-making, preventing logrolling).

The ruling aligns with every other circuit that addressed the question post-Buckley v. Valeo.

March 26, 2018 in Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis, Speech, State Constitutional Law | Permalink | Comments (0)

District Court: No First Amendment Right Against Release of FEC Investigation

 

Judge Amy Berman Jackson (D.D.C.) ruled on Friday that donors to a PAC don't have a First Amendment right against public disclosure of their identities as part of the FEC investigation file into their political contributions.

The ruling means that the FEC investigation file, including the contributors' identities, will be released, unless and until the ruling is appealed.

The case, John Doe 1 & John Doe 2 v. FEC, arose when the FEC launched an investigation into a series of transactions that landed Now or Never PAC with a $1.7 million contribution. The FEC's OGC learned that John Doe 2 sent about $1.7 million to Government Integrity; that Government Integrity wired about that amount to American Conservative Union; and that American Conservative Union, in turn, sent that amount on to Now or Never PAC.

The FEC's OGC recommended that the Commission find reason to believe that John Does 1 and 2 violated FECA's prohibition on "mak[ing] a contribution in the name of another person or knowingly permit[ting] his name to be used to effect such a contribution." The FEC rejected the recommendation, however, and sent the case to conciliation. Based on the results of conciliation, the FEC found that there was reason to believe that the plaintiffs, the PACs, and the treasurer of Now or Never violated FECA's prohibitions on making or receiving contributions in another person's name. 

The FEC also advised that it would put the documents related to the case on the public record.

The John Does sued, arguing that this violated their First Amendment rights, among other things.

Judge Jackson disagreed. She noted initially that "plaintiffs do not make any claim that anyone's associational rights are being infringed, and disclosing the identities of plaintiffs here would not involve the disclosure of anyone's internal operations or political strategies." She also noted that the FEC recently revised its disclosure policy and tailored it "to minimize the burdens on constitutional rights while providing for sufficient disclosure to advancing legitimate concerns of deterring future violations and promoting Commission accountability." 

She then wrote that "the constitutional issue has already been decided in the agency's favor." Quoting Citizens United

The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

Judge Jackson went on to hold that the FEC's disclosure policy is reasonable (under the APA) and consistent with FOIA.

March 26, 2018 in Campaign Finance, Cases and Case Materials, News, Opinion Analysis, Speech | Permalink | Comments (0)

Check it Out: Schmidt on Student Protests, from Lunch Counters to Guns

Check out Chris Schmidt's piece in the Washington Post earlier this month on student activism, from the lunch-counter sit-ins to gun control.

Prof. Schmidt also recently published The Sit-Ins: Protest and Legal Change in the Civil Rights Era with the University of Chicago Press.

March 26, 2018 in News, Scholarship, Second Amendment, Speech | Permalink | Comments (0)

Tuesday, March 13, 2018

Eleventh Circuit Says No Clearly Established Right Against Arrest for Wearing a Mask at a Protest

A divided panel of the Eleventh Circuit ruled today that officers enjoyed qualified immunity against First and Fourth Amendment claims after arresting an Atlanta Ferguson protestor for wearing a "V for Vendetta" mask. The ruling ends the protestor's civil-rights action against the officers.

The case, Gates v. Khokhar, arose when officers arrested Austin Gates for wearing the mask during the Atlanta protest, and failing to take it off when so ordered by police. Officers charged Gates with a violation of Georgia's Anti-Mask statute, which, with certain exceptions not relevant here, makes it a misdemeanor for a person to "wear[] a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer" while he is "upon any public way or public property." Gates sued, arguing that his arrest violated the First and Fourth Amendments.

The Eleventh Circuit ruled that the officers enjoyed qualified immunity and dismissed Gates's federal constitutional claims. The court said that the Georgia Supreme Court had narrowed the Anti-Mask statute to cases where (1) the mask is worn with the intent to conceal the identity of the wearer and (2) the wearer of the mask "knows or reasonably should know that [his] conduct provokes a reasonable apprehension of intimidation, threats, or violence."

Under this standard, the court said that the officers didn't violate any clearly established First or Fourth Amendment right. In particular, the majority held that under the circumstances the officers could have reasonably believed that Gates wore the mask to cover his entire face and with an intent to intimidate, and that they therefore had "arguable" probable cause for his arrest. (The court reminded us that "arguable" probable cause--the standard for qualified immunity from a Fourth Amendment claim--is a pretty low standard and doesn't require an officer to have specific evidence of intent. In any event, as to intent, the court said that the circumstances of the protest, the fact that officers previously ordered mask-wearers to remove masks on threat of arrest (even if Gates didn't hear this), and the symbolic threat behind the Guy Fawkes mask all suggested that an officer could infer intent to intimidate.)

Judge Williams dissented. She argued that the majority "fail[ed] to adequately address the First-Amendment implications of the conduct and statute at issue here." In particular, she wrote that "the specific right at issue here--whether individuals can be subject to arrest for wearing a mask during a peaceful protest--was "clearly established" at the time of Gates' arrest."

The panel unanimously held that the officers enjoyed absolute immunity against Gates's state-law claims.

March 13, 2018 in Cases and Case Materials, First Amendment, Fourth Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, March 12, 2018

Tenth Circuit Rejects First, Second Amendment Claims of Detained Open-Carry Gun Owner

The Tenth Circuit last week ruled that officers enjoyed qualified immunity against an open-carrying-plaintiff's claims that they detained him in violation of the Second Amendment and prevented him from recording their actions in violation of the First Amendment.

While the ruling goes only to qualified immunity, it underscores that there's no clearly established right to open carry under the Second Amendment, and no clearly established right of a detainee to record police officers in public. More generally, the ruling also illustrates just how stingy qualified immunity can be in protecting officers from constitutional tort claims.

The case, Sandberg v. Englewood, Colorado, arose when officers responded to a 911 call in which a caller reported "some form of workplace violence" after observing Westin Sandberg openly carrying his 9-millimeter Ruger on the streets of Englewood. The officers detained Sandberg and determined that there was  no basis for the "workplace violence" allegation. But they continued to detain him--for four hours total--while they determined whether they could charge him with anything else. Finally, the officers wrote a summons for disorderly conduct. (Colorado's disorderly conduct statute says: "A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly . . . displays a deadly weapon . . . .") They also took his gun, holster, bullets, and magazine. Four months later, the prosecutor dropped the charge, and, a month after that, returned Sandberg's property to him.

Sandberg sued, alleging violations of his First, Second, and Fourth Amendment rights, and gun-rights under the Colorado Constitution.

The Tenth Circuit rejected the federal constitutional claims, holding that the officers and prosecutor enjoyed qualified immunity. As to Sandberg's Second Amendment claim, the court said that there was no clearly established right to carry a gun in public. The court said that Justice Thomas's dissent to a denial of cert. in Peruta v. California and the Seventh Circuit ruling in Moore v. Madigan weren't enough, given that Justice Thomas's dissent carries no legal weight, and that the Seventh Circuit is the only circuit to hold that the Second Amendment encompasses a right to carry in public.

As to Sandberg's First Amendment claim, the court said that while some other circuits have held that the First Amendment protects the act of recording police officers' public conduct, they either post-dated the events in this case or involved a third-party recording the police (and not, as here, the detainee himself filming the police). Because there's no case-law on all fours, the court ruled that the law wasn't clearly established, and that the officers therefore enjoyed qualified immunity.

Lacking federal question jurisdiction, the court sent Sandberg's Colorado Constitutional claim back to the district court with instructions to dismiss.

While the case isn't (directly) a ruling on the merits, it does illustrate just how hard it can be to succeed on a constitutional tort claim against officers' qualified immunity. The qualified immunity doctrine allows courts to look first (and only) at whether a right is "clearly established" (without ever actually engaging the right itself). Moreover, in judging the "clearly established" question, the doctrine practically requires circuit precedent, or precedent from a majority of sister circuits, on all fours with the rights claim in the particular case. Because this is so hard to show--especially in cases involving relatively new rights claims, as here, which, because of their newness, simply haven't been litigated a lot--there's a weighty thumb on the scale in favor of qualified immunity, and against civil rights plaintiffs.

March 12, 2018 in Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis, Second Amendment, Speech | Permalink | Comments (0)

Wednesday, February 28, 2018

SCOTUS Hears Oral Argument in Minnesota Voters Alliance on Election Attire Ban

The Court heard oral argument in Minnesota Voters Alliance v. Mansky, a First Amendment challenge to Minn. Stat. §211B.11, entitled "Soliciting near polling places," and includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day."  The argument tracked many of the issues in our preview here.

Important to the argument was the relevance of Burson v. Freeman (1992), in which the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place. Early in the argument, Justice Sotomayor asked J. David Breemer, counsel for the petitioners, whether he was asking the Court to overrule Burson. Breemer distinguished Burson as "active campaigning" speech while the Minnesota statute governing attire and buttons was directed at "passive speech," but this did not seem satisfactory to the Justices. 

E362d3-20101101-pleaseidmeThe slippery slope inherent in overbreadth challenges was traversed multiple times. How could the lines be drawn? Several Justices at different points pressed counsel for Minnesota Voters Alliance on whether the statute would be constitutional if narrowed to "electoral speech" (vote for candidate X), but while counsel eventually agreed this might be constitutional, Justice Sotomayor then asked about ballot measure issues. During Daniel Rogan's argument on behalf of the State of Minnesota, Justice Alito pressed with any number of examples after stating that political connotations are in the "eye of the beholder": rainbow flags, Parkland Strong, the text of the Second Amendment, the text of the First Amendment, and "I miss Bill." And what about the very notion of entitlement to vote itself? In Breemer's rebuttal, Justice Sotomayor returned to some of the facts that had prompted the First Amendment challenge:

Let's not forget who these people were and what they were wearing, "Please ID me," which for some people was a highly charged political message, which was found, on remand, was intended to intimidate people to leave the polling booth . . . .

For Alito, the focus was not on voters who may be intimidated but on the humiliation of a voter who might be forced to cover up a political shirt with "a bathrobe."

As for the government interests supporting the statute, the question of dignity and decorum were paramount, inviting the comparison to the courtroom, which Justice Kagan raised. Although Breemer stated there was no constitutional right to vote free from being bothered, C.J. Roberts asked why a state could not make a determination that there should be such a policy.

The on-the-ground enforcement of the statute, with a potential for viewpoint discrimination, was a focus of Justice Alito's questions, but other Justices were also interested in what actually happened at the polling place. For Alito,but Rogan stressed the process and repeatedly noted that for one hundred years the statute has not been a problem and that Minnesotans know not to wear political slogans to go vote. If there are issues, Rogan stated, they are rather expeditiously solved in a bipartisan process at the polling place.

While one can assume their positions from their questions in oral argument from a few Justices - - - Alito seemed rather obvious - - - it is always risky to venture a guess about the outcome, especially when there is a conflict of constitutional interests. Indeed, this case may be most like Williams-Yulee v. The Florida Bar in which a closely-divided Court in 2015 upheld an ethics rule prohibiting judicial candidates from solicitation; Chief Justice Roberts wrote the majority opinion.

[image via]

 

February 28, 2018 in Elections and Voting, First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, February 26, 2018

No Surprises in Fair-Share Fee Oral Arguments

There were no surprises today at oral arguments in Janus v. AFSCME, the case testing whether a state law that permits a public-sector collective-bargaining agreement to require non-union-members to pay a "fair share" fee violates the First Amendment. The justices seemed to divide along predictable (and conventional political) lines, given their votes in other recent cases. The only one we haven't heard from on this issue--and didn't hear anything today--is Justice Gorsuch. If previous positions hold, as expected, the case will turn on his vote.

The case asks whether a state can require non-union members to pay the union for its collective-bargaining work (but not its outside political work) in a public-sector agency shop. The Court held in Abood v. Detroit Board of Education (1977) that it could. In particular, the Court said that the state's interests in avoiding free-riders in the agency shop and promoting and protecting labor peace justified any intrusion into First Amendment rights.

Janus tests whether the Court should overrule Abood and strike mandatory public-sector fair-share fees.

Recall that the issue has come to the Court, directly or indirectly, three times in recent years. In the first two cases, Knox v. SEIU and Harris v. Quinn, the Court sent strong signals that a majority thought fair share fees violated the First Amendment. Then, in 2016, the Court deadlocked 4-4 on the issue in Friedrichs v. California Teachers Association. Justice Scalia participated in oral arguments in Friedrichs--and indicated his position against fair share--but passed away before the Court issued its ruling.

Arguments today largely rehearsed the points made in Friedrichs and that have by now become familiar: on the one side, mandatory fair share represents compelled speech on public issues that a non-union-member (like Janus) may disagree with; on the other side, the interests in Abood justify any mild intrusion into First Amendment rights represented by a fee (and not actual compelled speech). Lurking just below the surface is the political wrangling over public-sector unions and the reality that a ruling against fair share will strike a serious blow to them.

If prior positions hold among the eight justices who participated in Friedrichs, as expected, the case will then turn on Justice Gorsuch. He revealed no cards today, though, staying quiet throughout the arguments.

February 26, 2018 in Association, Cases and Case Materials, First Amendment, News, Oral Argument Analysis, Speech | Permalink | Comments (0)

Argument Preview: Election Attire and the First Amendment

On February 28, 2018, the United States Supreme Court will hear arguments in Minnesota Voters Alliance v. Mansky, a First Amendment challenge to Minn. Stat. §211B.11, entitled "Soliciting near polling places," and includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day."

The Eighth Circuit, in a brief opinion affirming the district judge's grant of summary judgment to the government defendants, upheld the statute against an as-applied First Amendment challenge.

ShirtThe plaintiffs sought to wear Tea Party apparel and part of their argument was that the Tea Party was not a political party and that they had been subject to selective enforcement. The Eighth Circuit rather summarily rejected both of these arguments finding that they were not supported by the record.  In a previous opinion, the Eighth Circuit had allowed plaintiffs to develop this record by reversing the district judge's initial dismissal of the complaint on the First Amendment as-applied claim, while affirming the dismissal of the First Amendment facial challenge and an equal protection challenge. One judge dissented on the First Amendment facial challenge claim.  And it this facial challenge that is before the United States Supreme Court, the question presented by the petition for certiorari is: "Is Minnesota Statute Section 211B.11(1), which broadly bans all political apparel at the polling place, facially overbroad under the First Amendment?"

Undoubtedly the political attire at issue is expressive speech that the government could not ordinarily ban under the First Amendment. Thus, the status of the polling place on election day as an exception will be the centerpiece of the arguments. In Burson v. Freeman (1992), the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place. The plurality opinion by Justice Blackmun applied strict scrutiny, finding that 100 feet parameter involved a public forum and that the speech was being regulated on the basis of its content. However, confronted with a "particularly difficult reconciliation" of rights: "the accommodation of the right to engage in political discourse with the right to vote - a right at the heart of our democracy," the plurality found that this was a "rare case" in which a statute survived strict scrutiny. 

Here, the State, as recognized administrator of elections, has asserted that the exercise of free speech rights conflicts with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud. A long history, a substantial consensus, and simple common sense show that some restricted zone around polling places is necessary to protect that fundamental right. Given the conflict between these two rights, we hold that requiring solicitors to stand 100 feet from the entrances to polling places does not constitute an unconstitutional compromise. 

 Concurring, Justice Scalia disagreed that the case involved a public forum: "Because restrictions on speech around polling places on election day are as venerable a part of the American tradition as the secret ballot,"  "exacting scrutiny" was inappropriate. Instead, Scalia contended that although the statute was content based, it was "constitutional because it is a reasonable, viewpoint-neutral regulation of a nonpublic forum."

In addition to this precedent, it will be difficult to ignore that the oral argument will be occurring at the United States Supreme Court with its specific instruction to visitors to the argument that "identification tags (other than military), display buttons and inappropriate clothing may not be worn." Additionally, two federal statutes, 40 U.S.C. §6135 and 40 U.S.C. 13k make it unlawful "to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the Supreme Court building or grounds.  The Court determined that the prohibition of political speech as applied to the surrounding sidewalk of the Supreme Court was unconstitutional in United States v. Grace (1983) (Mary Grace was displaying a placard with the First Amendment), but stopped far short of declaring the statute unconstitutional. Dissenting in part, Justice Marshall contended that the entire statute should be unconstitutional, noting that it “would be ironic indeed if an exception to the Constitution were to be recognized for the very institution that has the chief responsibility for protecting constitutional rights.”

But after some D.C. courts had upheld the statutes, a D.C. district judge declared U.S.C. §6135 unconstitutional in Hodge v. Talkin (2013), causing the Supreme Court to amend its regulations regarding the term "demonstration" to exclude "casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.," but to nevertheless continue to prohibit "all other like forms of conduct that involve the communication or expression of views or grievances." Nevertheless, a person arrested for wearing a jacket with the words "Occupy Everywhere" as a seemingly casual visitor to the Supreme Court building achieved little success in his attempt to vindicate himself.  In other courtrooms, judges have banned spectators from wearing expressions related to the proceedings, for example in the trial of Bei Bei Shuai for ingesting poison to kill herself that harmed her fetus, and in the high-profile criminal trial of Cecily McMillan for assaulting a police officer who she alleged grabbed her breast. The United States Supreme Court obliquely confronted the issue of courtroom spectator in 2006 in Carey v. Musladin, which was decided on other procedural grounds. (For more discussion of spectator attire in courtrooms see Dressing Constitutionally).

The courtroom analogy will most likely surface at some point during the oral argument. In its brief, the Minnesota Voters Alliance relies on Justice Marshall's partial dissenting opinion in Grace, while Manksy's Respondent's brief ventures a specific analogy:

Because voting rights are of such bedrock importance, a polling place—like a courtroom—can reasonably be restricted to reflect the solemn and weighty nature of the function that occurs there.

But it will be interesting to hear how specific comparisons the United States Supreme Court's own practices in banning political t-shirts and similar attire will be. As for the attire of those attending the oral argument, if past practices hold, none of them will be wearing a Tea Party t-shirt or even a button expressing a political viewpoint.

Buttons

February 26, 2018 in Elections and Voting, First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Thursday, February 1, 2018

Federal Judge Declares Florida's Felony Disenfranchisement Restoration Scheme Unconstitutional

 In his opinion in Hand v. Scott, United States District Judge for the Northern District of Florida Mark Walker declared Florida's re-enfranchisement scheme for persons convicted of felonies to be restored their right to vote unconstitutional under both the First Amendment and the Fourteenth Amendment's Equal Protection Clause.

The court's decision was on cross motions for summary judgment and Judge Walker opens his opinion by describing the Florida scheme:

Florida strips the right to vote from every man and woman who commits a felony. To vote again, disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority. No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration. Until that moment (if it ever comes), these citizens cannot legally vote for presidents, governors, senators, representatives, mayors, or school-board members. These citizens are subject to the consequences of bills, actions, programs, and policies that their elected leaders enact and enforce. But these citizens cannot ever legally vote unless Florida’s Governor approves restoration of this fundamental right.

Florida’s Executive Clemency Board has, by rule, unfettered discretion in restoring voting rights. “We can do whatever we want,” the Governor said at one clemency hearing.  One need not search long to find alarming illustrations of this scheme in action. In 2010, a white man, Steven Warner, cast an illegal ballot. Three years later, he sought the restoration of his voting rights. He went before the state’s Executive Clemency Board, where Governor Scott asked him about his illegal voting.

“Actually, I voted for you,” he said. The Governor laughed. “I probably shouldn’t respond to that.” A few seconds passed. The Governor then granted the former felon his voting rights.

Spanish_Florida_Map_1803While the state can deny persons convicted of a felony the right to vote under the Fourteenth Amendment as construed by the Court in Richardson v. Ramirez (1974), the issue before Judge Walker was whether the vote restoration process was constitutional. Seemingly, the state argued it had absolute discretion to restore voting rights. Judge Walker held that such discretion violated the First Amendment rights to free association and expression, and the Fourteenth Amendment's Equal Protection Clause.

On the First Amendment claim, Judge Walker first articulated the right of free political association and then the right to vote as including a First Amendment right, interestingly relying in part on Citizens United.  Judge Walker writes that the unfettered discretion in vote restoration cannot survive exacting scrutiny.  Even if the government interest in limiting the franchise to responsible persons is valid, "Florida does not use the least-restrictive means to pursue its interests in preventing possibly irresponsible citizens from choosing their leaders."

Florida’s vote-restoration scheme is crushingly restrictive. The scheme crumbles under strict scrutiny because it risks—if not covertly authorizes the practice of—arbitrary and discriminatory vote-restoration. When a scheme allows government officials to “do whatever [they] want,” viewpoint discrimination can slip through the cracks of a seemingly impartial process. [citing record] Such discrimination can lead to a denial of “the fruits of their association, to wit: [former felons’] political impact”—or widespread, insidious bias to benefit the Governor’s political party. Touchston, 234 F.3d at 1154 (Tjoflat, J., dissenting). State officials’ potential political, racial, or religious biases cannot poison the well of vote-restoration.

Judge Walker discussed several instances of possible discrimination and disparities, but ultimately concluded that it was the possibility of discrimination from unfettered discretion that was crucial. Additionally, the Governor as ultimate arbiter was fatal:

 [t]he Governor has de facto veto authority over anyone’s restoration. All the component parts of the vote- restoration process that Defendants wave like shiny objects to distract from potential viewpoint discrimination—the investigations, case analyses, and hearings—mean nothing if the Governor alone has final authority to restore Plaintiffs’ rights.

Further, Judge Walker rejected the State's argument that the vote restoration scheme was akin to unreviewable executive clemency:

Executive clemency by its mere existence cannot serve as a legitimate, let alone compelling, state interest. No serious person would argue that an act of executive clemency that, for example, is motivated by race cannot run afoul of the Constitution simply because it is an act of executive clemency. This Court recognizes the novelty of a challenge to an executive clemency scheme. But “it is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And so, if a court finds unconstitutionality in an executive clemency scheme, its role is to strike the acts permitting the constitutional violation—not to declare its hands tied.

On the Equal Protection Clause claim, Judge Walker essentially applied rational basis scrutiny and found that the "violation in this case—the substantial risk of arbitrary and discriminatory vote-restoration based on an applicant’s identity and perceived voting preferences from partisan government officials— is worse than a coin flip."  Judge Walker stated that while the state may have a legitimate interest in limiting the franchise to responsible voters, the means chosen failed because it was at best, "arbitrary and disparate," interestingly quoting Bush v. Gore, on which the plaintiffs relied. Judge Walker added that at worst, the scheme would be discriminatory.

Judge Walker ordered additional briefings regarding remedies. Even if the state does not appeal, the question of remedies will be a difficult one.

Meanwhile, a ballot measure to restore voting rights to persons convicted of felonies has just been approved for the November ballot.

 

February 1, 2018 in Association, Elections and Voting, Equal Protection, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, January 30, 2018

Federal Judge Enjoins Kansas's Anti-Boycott of Israel Statute

In his opinion in Koontz v. Watson, United States District Judge Daniel Crabtree enjoined Kansas officials from enforcing Kan. Stat. Ann. § 75- 3740 f and any other Kansas statute, law, policy, or practice that requires independent contractors to declare that they are not participating in a boycott of Israel.  The Kansas statute is meant to counteract the so-called BDS (Boycott, Divestment, and Sanctions) movement which seeks to increase economic pressure on Israel as a means to accomplish specific goals.

After finding that the constitutional challenge was ripe, as well as not moot (since the state contended it would grant a waiver to the plaintiffs), Judge Crabtree found that plaintiffs were likely to prevail on their claim that the statute violated the First Amendment and a preliminary injunction was warranted. Judge Crabtree declared that under the First Amendment, states cannot retaliate or impose conditions on an independent contractor “ʻon a basis that infringes his constitutionally protected freedom of speech,'" and that the same guidelines developed under Pickering v. Board of Education of Township High School District 205, Will County, Illinois (1969) should apply.

On the first Pickering factor, Judge Crabtree found that Ms. Koontz's conduct of participating in a boycott was protected speech under NAACP v. Claiborne Hardware Co. (1982):

The conduct prohibited by the Kansas Law is protected for the same reason as the boycotters’ conduct in Claiborne was protected. Ms. Koontz, other members of the Mennonite Church, and others have “banded together” to express, collectively, their dissatisfaction with Israel and to influence governmental action. Namely, its organizers have banded together to express collectively their dissatisfaction with the injustice and violence they perceive, as experienced both by Palestinians and Israeli citizens. She and others participating in this boycott of Israel seek to amplify their voices to influence change, as did the boycotters in Claiborne.

Boycott_divestment_sanctions_560In evaluating the government interest under Pickering, Judge Crabtree determined that the legislative history revealed that the goal was to "undermine the message of those participating in a boycott of Israel": "This is either viewpoint discrimination against the opinion that Israel mistreats Palestinians or subject matter discrimination on the topic of Israel." An additional possibility was the legislative goal to "minimize discomfort" of Israeli businesses. Judge Crabtree found these goals were not legitimate.

On the narrowly tailored prong, Judge Crabtree found that the means chosen would be both overinclusive and underinclusive to any legitimate goals such as those involving trade relations with Israel. Moreover,

The authority the Kansas Law grants the Secretary of Administration to waive the certification requirement also undermines any rationale offered by defendant. As the Supreme Court noted in City of Ladue v. Gilleo(1994), “Exemptions from an otherwise legitimate regulation of a medium of speech . . . may diminish the credibility of the government’s rationale for restricting speech in the first place.”

Judge Crabtree also distinguished Rumsfeld v. Forum for Academic & Institutional Rights, (FAIR) Inc. (2006), on which the State relied, stating that the Kansas statute aims to regulate conduct that is "inherently expressive":

It is easy enough to associate plaintiff’s conduct with the message that the boycotters believe Israel should improve its treatment of Palestinians. And boycotts—like parades—have an expressive quality. Forcing plaintiff to disown her boycott is akin to forcing plaintiff to accommodate Kansas’s message of support for Israel. Because the Kansas Law regulates inherently expressive conduct and forces plaintiff to accommodate Kansas’s message, it is unlike the law at issue in Rumsfeld. The court thus finds defendant’s reliance on Rumsfeld misplaced.

After finding a likely First Amendment violation, Judge Crabtree further found the factors of granting a preliminary injunction were met.

Kansas is not the only state to have so-called anti-BDS legislation or policies. For good overviews see here and here.  It is a contentious issue and this case is sure to be appealed.

January 30, 2018 in First Amendment, International, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, January 22, 2018

Tenth Circuit Rejects First Amendment Retaliation Claims

The Tenth Circuit ruled last week that a former sheriff and undersheriff enjoyed qualified immunity against claims that they retaliated against employees for exercising free speech. The ruling means that the case is dismissed.

The case underscores the power of qualified immunity and the challenges that plaintiffs sometimes face in overcoming it, especially when circuit law hasn't addressed the plaintiffs' precise claims.

The case arose when former Sheriff Terry Maketa and Undersheriff Paula Presley took employment actions against employees for their speech in order to influence an upcoming election for sheriff. In particular, Maketa and Presley transferred plaintiff Lieutenant Peck to the midnight shift after Peck refused to deliver to the media a false story concocted by Maketa regarding a missing Internal Affairs document. They opened a criminal investigation against plaintiff Sergeant Stone and Stone's two children (who were also employees of the Sheriff's Office) after Stone expressed political support for the candidate opposed by Maketa and Presley. And they put a group of commanders on administrative leave; confiscated their phones, tablets, weapons, badges, and vehicles; and had them escorted out of the building after they lodged EEO complaints against Maketa and Presley.

The court didn't rule on the merits of the plaintiffs' free speech claims. Instead, it ruled that the defendants didn't violate any of the plaintiffs' clearly established rights under the Garcetti/Pickering test for public employee speech.

As to Peck, the court said that in communicating a message to the media against Maketa's orders, she wasn't clearly speaking as a private citizen (rather than a public employee), as required for a public employee's free speech claim. The court noted that "[i]n some circuits, Lt. Peck's disobedience might affect whether she was speaking as part of her official duties." But because the Tenth Circuit hadn't ruled on this yet, it wasn't clearly established.

As to Stone, the court said that the investigations didn't clearly constitute adverse employment actions as required for a public employee's retaliation claim. Again, the court noted that other circuits have ruled differently--that "[o]ther circuits disagree with one another on the issue" whether a retaliatory criminal investigation "entails a constitutional violation." But because the Tenth Circuit "has not settled the question," the right wasn't clearly established.

Finally, as to the commissioners, the court said that the defendants' actions weren't clearly adverse employment actions.

January 22, 2018 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0)

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.

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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)