Friday, February 17, 2017
The Eleventh Circuit ruled yesterday that Florida's law banning doctors from asking patients about gun ownership violated the First Amendment. The en banc court struck three key provisions of Florida's law, but upheld a fourth, banning discrimination against gun owners.
Florida's Firearms Owners' Privacy Act bans doctors from asking about guns in patients' homes, from keeping records on patient gun ownership, from "unnecessarily" harassing patients about gun ownership, and from discriminating against patients based on gun ownership. The legislature enacted the provisions after hearing about six instances involving doctors asking patients about gun ownership or discriminating against patients because of gun ownership.
Doctors sued, arguing that the provisions violated free speech. The court agreed (again, except for the anti-discrimination provision).
The court held that FOPA was a content-based restriction on speech, subject to the heightened-review standard in Sorrell v. IMS, and that FOPA failed to stand up. (Because FOPA failed under heightened review, the majority said that it didn't need to consider whether strict scrutiny applied. Judges Wilson and Martin would have applied strict scrutiny, however, arguing that FOPA is both content- and viewpoint-based. Judge Tjoflat dissented, taking issue with the majority's failure "to elucidate and apply a particularized standard of review," especially in wake of the "uncertainty" created by Reed v. Town of Gilbert.) In a separate majority opinion, the court said that the anti-unnecessary harassment provision was unconstitutionally vague.
Florida proffered four interests: protecting Second Amendment rights; protecting patient privacy; ensuring equal access to health care; and regulating the medical profession to protect the public. The court said that FOPA's wasn't necessary to achieve any of these.
As to the Second Amendment, the court said that doctors can't violate it, because they're not state actors, and because the Second Amendment doesn't protect against questions on gun ownership:
The first problem is that there was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients' firearms or otherwise infringed on patients' Second Amendment rights. This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter). The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right.
As to the state's interest in protecting patient privacy, the court noted that the FOPA itself, in a provision not contested in this case, protects a patient's right not to answer questions about gun ownership. "So any patients who have privacy concerns about information concerning their firearm ownership can simply refuse to answer questions on this topic." Moreover, "Florida law already places significant limits on the disclosure of a patient's confidential medical records, and there is no evidence that doctors or medical professionals have been improperly disclosing patients' information about firearm ownership."
As to ensuring equal access to health care, the court noted that it upheld FOPA's anti-discrimination provision, and that the other challenged provisions in FOPA simply weren't narrowly tailored to promote that interest.
Finally, as to the state's interest in regulating the medical profession "in order to protect the public," the court said that this just "is not enough here." "There is no claim, much less any evidence, that routine questions to patients about the ownership of firearms are medically inappropriate, ethically problematic, or practically ineffective. Nor is there any contention (or, again, any evidence) that blanket questioning on the topic of firearm ownership is leading to bad, unsound, or dangerous medical advice."
Judge Marcus, in a separate majority opinion, added that the anti-unnecessary-harassment provision was unconstitutionally vague.
The court upheld the anti-discrimination provision, because it raised no First Amendment concerns as applied to non-expressive conduct such as "failing to return messages, charging more for the same services, declining reasonable appointment times, not providing test results on a timely basis, or delaying treatment because a patient (or a parent of a patient) owns firearms."
The court severed the record-keeping, inquiry, and anti-harassment provisions, so that other provisions of the FOPA stay on the books. These include a provision relating to firearm inquiries by emergency medical professionals, a provision allowing patients to decline to answer questions about firearm ownership, the anti-discrimination provision, a provision prohibiting insurers from discriminating against gun owners, and a provision stating that a violation of any of these constitutes grounds for disciplinary action.
Thursday, February 16, 2017
In its unanimous opinion in State v. Arlene's Flowers, the Supreme Court of Washington upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding.
The owner of Arlene's Flowers argued that the anti-discrimination statute was not applicable to her and if it did, it violated her constitutional rights of free speech, free exercise, and free association under the First Amendment as well as under the Washington state constitution.
On the First Amendment claims, the court found that Arlene's Flowers argument regarding compelled speech failed because the owner's flower arranging did not meet the threshold of expression. The court relied on Rumsfeld v. FAIR to hold that the owner's
decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As [she] acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. [She] also testified that she has previously declined wedding business on "[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need." Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock.
The court rejected the applicability of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1985), as well as a litany of other United States Supreme Court cases regarding this threshold of expression. In essence, the court emphasized that it was the sale of all flowers from her shop rather than any particular floral arrangement that was at issue in the case.
On the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
However, the analysis of free exercise under the Washington state constitution, article I §11 was not so simple because Washington has not always adopted the Smith standard when reviewing claims under its state constitution. Nevertheless, the court found that even subjecting the Washington anti-discrimination law to strict scrutiny, the statute survives. The court "emphatically" rejected the claim that there was no compelling interest of the state in flowers for weddings: the "case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."
Finally, the court rejected Arlene's Flowers' argument regarding free association, noting that all of the cases upon which she relied were not businesses. As to the business itself, the court also upheld a finding of personal liability of the owner, the person who had refused service.
The United States Supreme Court has denied petitions for writ of certiorari in similar cases, but it is highly likely that a petition for certiorari will follow, especially given the nomination of Neil Gorsuch to the Court.
February 16, 2017 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Speech, State Constitutional Law | Permalink | Comments (0)
The Sixth Circuit ruled yesterday that a lower court should go ahead and rule on a First Amendment challenge to Tennessee's Campaign Finance Disclosure Act, and not wait for the outcome of a state administrative proceeding in a different case. The court also hinted toward a likely outcome: the Act violates the First Amendment.
The decision overturns the lower court's invocation of Pullman abstention and orders the lower court to move ahead to the merits. But the Sixth Circuit still gave the lower court a chance to certify interpretation of the state law to the Tennessee Supreme Court (but suggested that this wouldn't really help).
The case arose when two parents of school-aged children formed an unincorporated group to advocate in an upcoming school board election. The group planned to spend less than $250 on independent expenditures, and not make any direct campaign contributions to candidates.
But group members learned that Tennessee law might regulate their activities. The Tennessee Campaign Financial Disclosure Act defines a "political campaign committee" as "a combination of two (2) or more individuals, including any political part governing body, whether state or local, making expenditures, to support or oppose any candidate for public office or measure." The Act goes on to require committees to pay an annual registration fee, appoint a treasurer, maintain a separate bank account, file financial disclosure statements, and keep financial records--all things that the two members weren't prepared to do.
So they sued in federal court, arguing that the Act violated the First Amendment. But the district court punted, invoking Pullman abstention, and citing a pending state administrative proceeding involving the application of the Act to a different group.
The Sixth Circuit reversed. The court said that Pullman abstention wasn't appropriate here, because the state administrative proceeding dealt with different issues (and not the ones that the plaintiffs raised here), because the Act wasn't "so ambiguous as to necessitate abstention," and because the Act wasn't really susceptible to a limiting construction that would save it from a First Amendment challenge.
The court left open an option for the district court to certify a question on the construction of the Act to the Tennessee Supreme Court. But it also suggested that certification wouldn't do any good, because the Act says what it says.
Tuesday, February 14, 2017
Eighth Circuit Says Restrictions on University Trademark for Student NORML Group Violate Free Speech
The Eighth Circuit ruled yesterday that Iowa State University's restrictions on NORML's use of the school's trademark violates the First Amendment. The court said that the restrictions amounted to viewpoint-based discrimination in a limited public forum and enjoined the school from applying its trademark-use policy in a viewpoint-discriminatory way.
The case arose when the ISU student NORML group sought university permission to use the school's trademark on NORML t-shirts. (The school's trademark-use policy allows any student group, including NORML, to use the trademark upon request and permission.) The shirt design featured the words "NORML ISU" on the front with the "O" represented by Cy the Cardinal, the school's mascot. The back read, "Freedom is NORML at ISU" with a small cannabis leaf above "NORML."
The school initially approved the group's use of the school's trademark for the t-shirt. But then the Des Moines Register ran a story on marijuana legalization, with a picture of the shirt and a quote from NORML ISU's president saying that ISU has supported the group. The school received blowback, including calls from the state legislature and governor's office asking whether the school really approved the use of its trademark, and university officials backtracked. Officials denied the use of the trademark for a second run of the shirt; they required NORML (and NORML alone) to get additional administrative approval for any future trademark requests; and they changed their trademark policy to prohibit the use of the trademark in "designs that suggest promotion of . . . dangerous, illegal or unhealthy products, actions or behaviors . . . [or] drugs and drug paraphernalia that are illegal or unhealthful." Under the new policy, the school denied NORML's request to use the trademark for any design that included a cannabis leaf, but it approved use of the trademark for a design that simply stated the group's name (with no leaf).
Group members sued and won a permanent injunction in the district court, prohibiting the school from enforcing is trademark-use policy in a viewpoint-discriminatory way. The Eighth Circuit affirmed.
The court held that the university created a limited public forum in its trademark-use policy, and that the additional barriers to that policy that it erected for NORML constituted viewpoint-based discrimination of speech. The court also rejected the school's argument that NORML's use of the trademark constituted government speech under the three-part test for government speech in Walker v. Texas Sons of Confederate Veterans.
Tuesday, February 7, 2017
The wife of the President has two pending defamation claims that not only involve interesting First Amendment issues, but may also be relevant to the pending Emoluments Clause challenge.
First there is the complaint in Melania Trump v. Tarpley (and Mail Media), filed in Maryland state court. This suit alleges that statements by blogger Webster Griffin Tarpley in a blog post, including “Ms. Trump Reportedly Obsessed by Fear of Salacious Revelations by Wealthy Clients from Her Time as a High-End Escort” and “It is widely known that Melania was not a working model but rather a high end escort.” The complaint survived the motion to dismiss by Tarpley, with the Judge ruling from the bench reportedly rejecting the blogger defendant’s argument that he was not making the statement as a fact but merely reporting rumors. The judge further reportedly stated that the alleged statements were defamatory: “The court believes most people, when they hear the words 'high-end escort' that describes a prostitute. There could be no more defamatory statement than to call a woman a prostitute."
Additionally, as the news report stated:
The judge also seemed skeptical that such salacious claims were deserving of the highest level of legal protection given that Melania Trump was the wife of a candidate and not a candidate herself.
"The interests affected are arguably not that important because the plaintiff wasn't the one running for office," [Judge] Burrell said.
This would seem to imply that Melania Trump was not a public figure, a conclusion that does not seem sustainable. The judge did, however, seem to dismiss the plaintiff’s claim that the false statements included injuries to her husband’s business.
Maryland Judge Burrell did , however, dismiss the complaint as against Mail Media for lack of jurisdiction against the company.
Ms. Trump has now filed a complaint in New York against Mail Media (Mail Online), alleging defamation and intentional infliction of emotional distress based on the same facts. Interestingly, Ms. Trump has dropped the allegations of injuries to her husband's business and included more specific injuries to her own business and lost opportunities. Paragraph 3 of the Complaint reads:
As a result of Defendant’s publication of defamatory statements about Plaintiff, Plaintiffs brand has lost significant value, and major business opportunities that were otherwise available to her have been lost and/or substantially impacted. The economic damage to Plaintiffs brand, and licensing, marketing and endorsement opportunities caused by the publication of Mail Online’s defamatory article, is multiple millions of dollars. Plaintiff had the unique, once-in-a-lifetime opportunity, as an extremely famous and well-known person, as well as a former professional model and brand spokesperson, and successful businesswoman, to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multi-million dollar business relationships for a multi-year term during which Plaintiff is one of the most photographed women in the world. These product categories would have included, among other things, apparel, accessories, shoes, jewelry, cosmetics, hair care, skin care and fragrance.
This allegation has raised some eyebrows as it seems to allege that Melania Trump intended to monetize her "once-in-a-lifetime opportunity" for a "multi-year term" as First Lady by promoting her personal products. Indeed, Melania Trump's initial biography on the White House website lends credence to this view:
This entry has since been removed, although it does not seem the removal is connected to the August 2016 publications about Melania Trump.
Should discovery on damages ensue, it could be a trove of material for those claiming that conflicts of interests exist in Donald Trump's official position and his businesses, including his family businesses. However, note that under Seattle Times v. Rhinehart (1984), a judge could certainly order nondisclosure of the material gained by Mail Media despite the defendant's press status.
Meanwhile, also in New York state court, Donald Trump is defending a defamation suit filed by Zervos Summer based on allegations that he called her charges of sexual harassment by him false.
Wednesday, January 25, 2017
In their op-ed in The New York Times, "Don’t Expect the First Amendment to Protect the Media," ConLawProfs Ronnell Anderson Jones and Sonja West argue that while it may be "comforting" to think that the "Constitution serves as a reliable stronghold against Mr. Trump’s assault on the press," the that is not true. Instead, "legal protections for press freedom are far feebler" than assumed and have been "weakening in recent years."
They contend there is little recourse in the courts. As they state:
The Supreme Court has not decided a major press case in more than a decade, in part because it has declined to do so, and in part because media companies, inferring the court’s relative lack of interest, have decided not to waste their resources pressing cases. Several justices have spoken negatively of the press in opinions or speeches. Lower courts have likewise become less favorable to the press, showing more willingness than in the past to second-guess the editorial judgment of journalists.
Much of the ""freedom" of "the press" in the First Amendment is supported by "customs and traditions," which the new President seems "keen to destroy."
We cannot simply sit back and expect that the First Amendment will rush in to preserve the press, and with it our right to know. Like so much of our democracy, the freedom of the press is only as strong as we, the public, demand it to be.
How "the public" should make such demands is seemingly the question of the moment.
Monday, January 23, 2017
Former Congressperson and presidential candidate Newt Gingrich has reportedly stated that the famous celebrity Madonna "ought to be arrested" for her speech at the Women's March in Washington D.C. including a reference to thinking about violence.
Here's the video:
Madonna's statements are a far cry from satisfying the classic formulation in Brandenburg v. Ohio (1969) requiring that to be constitutional under the First Amendment, the criminalizing advocacy of violence can only occur if the advocacy is directed to inciting or producing imminent lawless action, and also is likely to incite or produce such lawless action. The less well known case of Hess v. Indiana (1973), is also pertinent because the Court found that the statements during a protest about 'taking the street' was not imminent and was directed at some indefinite future time.
Here, Madonna stated that she "had thought" about the violent act of "blowing up the White House," and then continued, "but I know, that this won't change anything." It's even difficult to meet the threshold of "advocacy" in this case, given that she isn't advocating or suggesting any action. Moreover, even if there were some advocacy, it wasn't directed at inciting others to act. And even if there was incitement, there was no likelihood that the crowd would act lawlessly.
The crowd did respond, however, when Madonna asked them to sing (and dance) along to one of Madonna's signature songs, "Express Yourself."
For ConLawProfs thinking of class illustration, this might be useful. However, although Bradenburg-type questions can be popular (if also somewhat problematical) on exams, this seems far too easy.
Friday, January 20, 2017
A few days before he was sworn in as President of the United States, the complaint in Zervos v. Trump was filed in New York state court alleging a cause of action for defamation, raising several constitutional issues.
First, the issue of whether the chief executive of the United States is entitled to a stay of the proceedings while he occupies the office seems to be resolved by the United States Supreme Court's unanimous 1997 decision in Clinton v. Jones. Jones was decided on a separation of powers issue, of course, given that Paula Jones had filed an action alleging sexual harassment by Bill Clinton before he became president. However, the general reasoning seems applicable. The Court in Jones stated that it was not persuaded of the seriousness of the alleged risks that this decision will generate a large volume of politically motivated harassing and frivolous litigation and that national security concerns might prevent the President from explaining a legitimate need for a continuance, noting that it had confidence in the ability of judges to deal with both concerns.
Second, a complaint of defamation almost always raises a First Amendment concern. Interestingly, here one question would be whether the plaintiff, Summer Zervos, was a public figure under Gertz v. Robert Welch, Inc, so that she would have to prove "actual malice" on the part of the defendant. It would seem that Zervos appearance on Trump's television show, The Apprentice, would make her at least a limited public figure. Moreover, even if not then, her decision to "speak publicly" about her interactions with Trump after sexual harassment became an issue in the campaign, most likely made her a limited public figure.
Yet even if Zervos is a public figure, the complaint alleges that Trump made the statements knowing that they were false or with reckless disregard of their truth or falsity. The complaint makes allegations of numerous statements, including embedding a tweet with a photograph of Zervos:
Interestingly, the complaint also alleges that "all these liars" - - - the women who claimed Trump had sexually harassed them - - - "will be sued after the election is over." Trump has been called a "libel bully" in an article that briefly made headlines for being stifled by the American Bar Association for fear of it provoking the very conduct it analyzed. But it seems as if the tables have been turned.
It's far too early for predicting outcomes, but meanwhile ConLawProfs could use this as an interested Con Law problem - - - or an exam question.
Wednesday, January 18, 2017
The Court heard oral arguments in Lee v. Tam involving the constitutionality of the denial of trademark registration to a band called "The Slants" on the ground that the mark would be disparaging. Recall that the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, was unconstitutional because it violates the First Amendment. The en banc majority found that the disparagement provision constituted viewpoint discrimination and failed strict scrutiny.
However, like so many First Amendment controversies, the case involves a contest between doctrines, as today's oral argument illustrated and as we discussed in our case preview.
For example, it is unclear whether the First Amendment is applicable at all. At issue is whether the band can register this specific trademark, as opposed to whether or not the band can use the name or even whether the band could sue others who used the name for unfair competition. Perhaps the trademark is actually government speech, a prospect that Justice Ginsburg surfaced with an allusion to Walker v. Texas Sons of Confederate Veterans, the confederate flag license plate case, by distinguishing between the license plate (which the government continues to own and which the car driver must affix) and the trademark symbol (which the government does not "own" and the registrant can use or not).
Or perhaps, even if the First Amendment does apply, the analysis should be more akin to a one involving a subsidy, as Malcolm Stewart, Deputy Solicitor General, argued, analogizing to National Endowment for the Arts v. Finley (1998), in which the Court found constitutional a requirement that "general standards of decency" be considered.
Or perhaps the "trademark" is best analyzed under a limited forum analysis, as Stewart also argued, although Chief Justice Roberts seemed to disagree that the "entire trademark program" could be properly considered limited. Additionally, Justice Kennedy later questioned the appropriateness of a forum hypothetical:
STEWART: . . . . Another example I would give, and it's a hypothetical example, but at least I have a strong instinct as to how the --the case should be decided. Suppose at a public university the --the school set aside a particular room where students could post messages on topics that were of interest or concern to them as a way of promoting debate in a nonconfrontational way, and the school said, just two ground rules: No racial epithets and no personal attacks on any other members of the school community.
It --it would seem extraordinary to say that's a viewpoint-based distinction that can't stand because you're allowed to say complimentary things about your fellow students
JUSTICE KENNEDY: So --so the government is the omnipresent schoolteacher? I mean, is that what you're saying?
JUSTICE KENNEDY: The government's a schoolteacher?
STEWART: No. Again, that analysis would apply only if the public school was setting aside a room in its own facility. Clearly, if the government attempted more broadly to restrict disparaging speech by students or others rather than simply to limit the terms under which a forum for communication could be made available, that would involve entirely different questions.
Yet Justice Kennedy seemed equally displeased with the notion that "trademark law is just like a public park" - - - "the classic example of where you can say anything you want. The attorney for The Slants seemed to approve of this analogy, but Justice Kagan found it troublesome:
JUSTICE KAGAN: Well, Mr. Connell, this can't be right, because think of all the other things, the other --I mean, I'll call them content distinctions because they are --that trademark law just makes. I mean, Section 2 prohibits the registration of any mark that's falsely suggestive of a connection with persons likely to cause confusion, descriptive, misdescriptive, functional, a geographic indication for wine or spirits, government insignia, a living person's name, portrait, or signature. You couldn't make any of those distinctions in a --in a --in a public park, and yet, of course, you can make them in trademark law, can't you?
Or perhaps the benefit/forum analysis in combination might be a proper guide. Chief Justice Roberts, questioning the attorney for the respondent, raised this possibility again, in a hypothetical about the government putting on a Shakespeare festival in which presentations disparaging Shakespeare would be excluded. This also led to Justice Ginsburg analogizing to Pacifica v. FCC, which Justice Breyer noted might be apt as a permissible time, place, and manner regulation: The Slants can use the words in the entire universe, except as a trademark. Eventually, Justice Sotomoyor took the argument to an interesting turn:
SOTOMAYOR: . . . . But your argument earlier was that if someone slanders or libels an individual by saying --Trump before he was a public figure --Trump is a thief and that becomes their trademark, that even if they go to court and prove that that's a libel or a slander, that trademark would still exist and would be capable of use because otherwise canceling it would be an abridgement of the First Amendment?
MR. CONNELL: I believe that's correct.
JUSTICE SOTOMAYOR: That makes no sense.
Finally, the relevance of commercial speech surfaced, although not particularly convincing. The attorney for The Slants referred to the commercial vs. the noncommercial aspects of trademark, but this did not seem to gain much traction. Justice Alito did, however, ask whether "viewpoint discrimination is always prohibited in commercial speech," and used as an example, whether "a manufacturer of cigarettes could not place on a package of cigarettes "Great for your health. Don't believe the surgeon general." The attorney for The Slants replied that viewpoint discrimination in commercial speech was prohibited under IMS v. Sorrell (2011).
Another "hypothetical" - - - Blackhorse v. Pro-Football, Inc., in which a divided Trademark Trial and Appeal Board canceled a football team's trademark under the disparagement clause - - - was not broached in the oral argument, but looms large in any decision the Court will render.
Monday, January 16, 2017
While we often think of protest and civil disobedience under the First Amendment, in her article Protest is Different in Richmond Law Review, Professor Jesssica West of University of Washington essentially argues that the First Amendment has not been a sufficiently robust defense criminal prosecutions. Instead, she contends that we should reconceptualize protest relying upon evolving concepts of capital jurisprudence flowing from the Eighth Amendment contention that "death is different." She argues that similar to the complexity of the moral determination inherent in a sentence of death requiring a judgment of community condemnation, a criminal conviction resulting from acts of protest likewise involves deep and complex values of individualization and community conscience.
It's a worthwhile read on this Martin Luther King Day: "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws." Martin Luther King, Jr., Letter from a Birmingham Jail, Apr. 16, 1963.
Thursday, December 15, 2016
In its unanimous opinion in Liverman v. City of Petersburg (Virginia), the Fourth Circuit has held that a police department's social media policy and its subsequent enforcement violated the First Amendment.
The opinion, authored by Judge J. Harvey Wilkinson, concerned the police department's "negative comments" policy which provided,
Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law.
The court further considered a related provision, the so-called "public concern provision, which provided:
Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances must be judged on a case-by-case basis.
Liverman, while off-duty, posted a comment to his Facebook page complaining about "rookie cops" becoming "instructors," writing in part, "Give me a freaking break, over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it takes at least 5 years for an officer to acquire the necessary skill set to know the job and perhaps even longer to acquire the knowledge to teach other officers." Another off-duty officer, Richards, wrote to "agree 110%" and furnish additional comments. The officers each received an oral reprimand and probation for 6 months, with a new policy added that excluded officers on probation from being considered for promotion.
The Fourth Circuit engaged in the familiar Pickering-Connick balancing test, first asking whether the speech related to a "matter of public concern," and then if so, balancing “the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
The court easily found that the "negative comments" ban related to matters of public concern, concluding that "the restraint is a virtual blanket prohibition on all speech critical of the government employer." As for the interest of the police department, the court was not only critical of the ban's breadth, but also contended it actually disserved the government interests:
We do not, of course, discount the capacity of social media to amplify expressions of rancor and vitriol, with all its potential disruption of workplace relationships that Connick condemned. But social networking sites like Facebook have also emerged as a hub for sharing information and opinions with one’s larger community. And the speech prohibited by the policy might affect the public interest in any number of ways, including whether the Department is enforcing the law in an effective and diligent manner, or whether it is doing so in a way that is just and evenhanded to all concerned. The Department’s law enforcement policies could well become a matter of constructive public debate and dialogue between law enforcement officers and those whose safety they are sworn to protect.
Moreover, the department could not show any actual disruption to its mission.
The court did note that the department could craft a "narrower social media policy" that did not have "chilling effects," but as the negative comments policy was written, it did indeed violate the First Amendment.
Thursday, December 1, 2016
The Eleventh Circuit ruled earlier this week that a police major was not entitled to qualified immunity for issuing a be-on-the-lookout (BOLO) advisory for another officer, recently fired for complaining about racial profiling and other constitutional violations by the local police department.
The ruling means that the officer's First Amendment case can move forward on the merits.
The case arose when Derrick Bailey, then an officer in the Douglasville Police Department, complained to his chief that other Douglasville officers and Douglas County Sheriff's Office deputies engaged in racial profiling and other constitutional violations. Bailey, who had an above-average record, was fired and harassed by other officers. Then Major Tommy Wheeler of the Douglas County Sheriff's Office issued the BOLO, saying that Bailey was a "loose cannon" who presented a "danger to any [law-enforcement officer] in Douglas County," and directing officers to "act accordingly." (According to the court, there was no evidence of any of this.)
Bailey sued for civil rights violations, and Wheeler moved to dismiss on qualified immunity grounds. The Eleventh Circuit rejected Wheeler's defense. It ruled that Bailey's speech was protected (Wheeler didn't contest this), that Wheeler's conduct adversely affected Bailey's speech, and that there was a causal connection between Bailey's speech and Wheeler's actions.
As to the second part, adversely affected, the court explained:
Let's pause for a moment to appreciate just how a reasonable law-enforcement officer may have understood that [BOLO] instruction. Under Georgia law, when a subject is armed and dangerous, an officer may shoot the subject in self-defense--a term Georgia construes as having justifiable intent to use such force as the officer reasonably believes to be necessary to prevent death or great bodily injury. So, in other words, Wheeler's BOLO gave all Douglas County law-enforcement officers a reasonable basis for using force--including deadly force--against Bailey if they reasonably misconstrued a single move Bailey made--such as reaching into his pocket when confronted by law-enforcement officers--as imperiling themselves or anyone else. We think that this situation, which potentially seriously endangered Bailey's life, easily would deter a person of ordinary firmness from exercising his First Amendment rights.
The court also ruled that Bailey's right to be free from retaliation for his speech was clearly established at the time that Wheeler issued the BOLO.
The court also denied Wheeler absolute immunity on Bailey's state-law defamation claim.
The ruling sends the case back to the trial court to go forward on the merits.
Tuesday, November 29, 2016
The United States Supreme Court has held that flag burning as expressive speech is protected by the First Amendment and that loss of citizenship is not a constitutional punishment for a crime.
In Texas v. Johnson (1989), the Court declared:
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . . In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it.. . . There is, moreover, no indication -- either in the text of the Constitution or in our cases interpreting it -- that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole -- such as the principle that discrimination on the basis of race is odious and destructive -- will go unquestioned in the marketplace of ideas. . . .
We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag -- and it is that resilience that we reassert today.
The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.
To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to bee applied is more speech, not enforced silence.
Whitney v. California(1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
During the oral argument in Texas v. Johnson, the late Justice Scalia, who joined the Court's opinion, expressed scorn for the notion that the flag should be insulated from the First Amendment protections of speech. In a colloquy with the attorney for the State of Texas, Justice Scalia wondered if Texas could similarly criminalize desecration of the state flower, the blue bonnet. Scalia then remarked:
Well, how do you pick out what to protect?
I mean, you know, if I had to pick between the Constitution and the flag, I might well go with the Constitution.
As for the constitutionality of "loss of citizenship" as punishment for a criminal violation, the United States Supreme Court, in Trop v. Dulles (1958), declared that "Citizenship is not a license that expires upon misbehavior." In considering a statute that revoked citizenship for desertion by a member of the armed forces, the Court stated that the
use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.
This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.
The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.
Thus it seems that the president-elect's sentiment is at odds with our constitutional precedent.
Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!— Donald J. Trump (@realDonaldTrump) November 29, 2016
Monday, November 28, 2016
A complaint alleging violations of the First and Fourth Amendments by North Dakota officials has been filed on behalf of "water protectors" at the Dakota Access Pipeline (DAPL) protest at Standing Rock. The plaintiffs in Dundon v. Kirchmeier have also filed a motion and memo for a Temporary Restraining Order "enjoining Defendants from curtailing their First and Fourth Amendment rights by using highly dangerous weaponry, including Specialty Impact Munitions (SIM, also known as Kinetic Impact Projectiles or KIP), explosive “blast” grenades, other chemical agent devices, and a water cannon and water hoses in freezing temperatures, to quell protests and prayer ceremonies associated with opposition to the Dakota Access Pipeline (DAPL).
As to the First Amendment, the plaintiffs allege that the defendants have sought to eliminate protected First Amendment activity in a public forum. Additionally, even if there were an "unlawful assembly" not protected by the First Amendment, the defendants violated the Fourth Amendment's prohibition of excessive force. Moreover, the plaintiffs claim that the activities of the government officials have become a custom warranting government liability.
The factual claims in the complaint and memo supporting the TRO are troubling; some of the accounts will be familiar from reporting, but the legal documents compare the use of force at Standing Rock to other situations.
For example, on the water cannon:
The use of water cannons in riot control contexts also can lead to injury or death. Potential health effects include hypothermia and frostbite, particularly if appropriate medical and warming services are not easily accessible. High-pressure water can cause both direct and indirect injuries. Direct injuries may include trauma directly to the body or internal injuries from the force of the water stream. Eye damage resulting in blindness as well as facial bone fractures and serious head injuries have been documented. Ex. V at 59; Anna Feifenbaum, White-washing the water cannon: salesmen, scientific experts and human rights abuses, Open Democracy (Feb. 25, 2014); https://www.opendemocracy.net/opensecurity/anna-feigenbaum/white-washingwater-cannon-salesmen-scientific-experts-and-human-rights; https://web.archive.org/web/20070221053037/http://newzimbabwe.com/pages/mdc44.15976.html (fatalities reported in Zimbabwe in 2007, when water cannons were used on peaceful crowd, causing panic); http://www.hurriyetdailynews.com/Default.aspx?pageID=238&nid=49009 (fatalities reported in Turkey in 2013, when water cannon water was mixed with teargas); https://www.kyivpost.com/article/content/ukraine-politics/activist-watered-by-police-diedbecause-of-pneumonia-335885.html (fatality reported in Ukraine in 2014, when businessman Bogdan Kalynyak died from pneumonia after being sprayed by water cannon in freezing temperatures). There is no current caselaw on the use of water cannons against protesters in the United States because, along with attack dogs, such use effectively ended in the U.S. in the 1960s amidst national outcry over the use of these tactics on nonviolent civil rights protesters.
Saturday, November 26, 2016
The safety pin has been recognized as an expression of support for the "vulnerable," becoming popular in the UK in response to xenophobic incidents after the Brexit vote and now in the US after reports of similar incidents. While some deride it as being a mere (and insufficient) fashion accessory without accompanying actions, the Shawnee Mission School District in Kansas has issued a message to its employees essentially prohibiting them from wearing safety pins as a form of expression. Here is the statement from the school district's Facebook page, seemingly crafted in consultation with its local NEA chapter:
"Recent events require us to remind our employees of their rights and responsibilities. As a staff member, you do not give up your first amendment right to free-speech on matters of public concern. However, your communication inside the classroom on school time is considered speech on behalf of the school district and there is a limitation on that speech.
The wearing of a safety pin as a political statement is the latest example of such political speech. Although wearing the safety pin as political speech is not the problem, any disruption the political statement causes in the classroom or school is a distraction in the education process. We ask staff members to refrain from wearing safety pins or other symbols of divisive and partisan political speech while on duty--unless such activity is specifically in conjunction with District curriculum.
Further, the use of district owned devices and accounts is strictly forbidden for anything other than District business. If you have questions regarding appropriate use, please see BOE policies IIBF and GAT.
NEA-SM and the Board of Education are committed to the safety of every student. Thank you in advance for your careful review of this statement and for working with all students of the Shawnee Mission community.”
The Kansas ACLU has sent a letter to the school district urging it to "reconsider the prohibition on the wearing of safety pins." The ACLU letter argues that the safety pin is not partisan political speech and is "highly vulnerable to legal challenge" under the classic case of Tinker v. Des Moines Independent Community School District (1969). In Tinker, involving students wearing black armbands to protest the Viet Nam war, the Court ruled that public schools could not curtail students' symbolic speech unless the speech would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or infringe on the rights of others. The Supreme Court famously stated that "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and the Tinker standard has been applied to teachers as well as students.
The ACLU has the better argument here. As I've written in Dressing Constitutionally, the Tinker standard has been applied to teachers as well as students. Moreover, the school district's contention that teachers' expression "inside the classroom on school time is considered speech on behalf of the school district," is an overstatement (and is at odds with doctrine limiting government liability for teacher speech unless it is official policy). Importantly, the school's communication recognizes the "safety pin" as conveying a specific meaning - - - contrasted with cases involving teacher dress in which the expression is debatable (e.g., long hair or mustaches for male teachers) - - - and thus the First Amendment clearly applies to the safety pin as expression. As for disruption, the Tinker standard requires the school officials "had reason to anticipate" a substantial disruption rather than merely "an urgent wish to avoid the controversy which might result from the expression." There do not seem to be any facts indicating that there would be disruption - - - again, contrasted with cases in which there was a history of racial violence and student Confederate flag attire could be banned - - - and thus the Tinker standard is not satisfied.
The school board is on shaky First Amendment ground in its banning of safety pins as symbolic expression.
Tuesday, November 22, 2016
The factual predicate for the case does not involve the most recent election. Writing for the majority, Seventh Circuit Judge Kenneth Ripple began by explaining:
The plaintiffs have brought this action alleging that Act 43, the redistricting plan enacted by the Wisconsin Legislature in 2011, constitutes an unconstitutional partisan gerrymander. Specifically, they maintain that the Republican-controlled legislature drafted and enacted a redistricting plan that systematically dilutes the voting strength of Democratic voters statewide. We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.
In its discussion of "foundational case law," the court begins its discussion with the equal protection case of Reynolds v. Sims (1964), and concludes with League of United Latin American Citizens v. Perry (“LULAC”) (2006), although interestingly it does not cite Bush v. Gore (2000). In considering the "close relationship between equal protection and associational rights," the court found Williams v. Rhodes (1968) especially instructive. The court concluded:
We therefore believe that there is a solid basis for considering the associational aspect of voting in assessing the gravamen of the harm allegedly suffered by the plaintiffs. Indeed, in this case, the associational harm is especially important to the analysis because the testimony of the defendants’ witnesses as well as the plaintiffs’ demonstrate that, given the legislative practice and custom of Wisconsin, legislative action is controlled, as a practical matter, solely by the majority caucus. In such a circumstance, when the state places an artificial burden on the ability of voters of a certain political persuasion to form a legislative majority, it necessarily diminishes the weight of the vote of each of those voters when compared to the votes of individuals favoring another view. The burdened voter simply has a diminished or even no opportunity to effect a legislative majority. That voter is, in essence, an unequal participant in the decisions of the body politic.
It therefore rejected the notion that equal protection "must be limited to situations where the dilution is based on classifications such as race and population."
The court summarized the applicable doctrine as follows:
the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.
The court then exhaustively applied these standards to the complex facts, concluding that the plaintiffs had carried their burden. As to remedy, however, the court deferred because the parties had not had the opportunity to completely brief the matter and ordered simultaneous briefs within 30 days with 15 days thereafter to respond.
The dissenting judge, William Griesbach, relied on Davis v. Bandemer (1986) (plurality), in which the Court refused to invalidate Indiana's redistricting scheme, to support his conclusion that "partisan intent is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches of government," and interestingly notes that
"It was only a term ago that the Court held by a 5 to 4 vote that it was constitutionally permissible to remove redistricting from the political branches. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (2015). Adoption of the majority’s standard may well compel States to do so."
The incessant issue of gerrymandering may be headed to the United States Supreme Court yet again.
[image 1, Wisconsin map 1865 via; image 2, Appendix 2 to the court's opinion]
Sunday, November 20, 2016
In Miami Herald Publishing Co. v. Tornillo (1974), a unanimous Supreme Court held that Florida's "right of reply" statute granting a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper violated the First Amendment.
As the opinion by Chief Justice Burger phrased it:
the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which "reason' tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated. . . . Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers.
Thus, while the President-Elect may simply be requesting "equal time" for "us," his widely reported tweet implicates serious constitutional concerns.
I watched parts of @nbcsnl Saturday Night Live last night. It is a totally one-sided, biased show - nothing funny at all. Equal time for us?— Donald J. Trump (@realDonaldTrump) November 20, 2016
Monday, November 14, 2016
Judge Colleen Kollar-Kotelly (D.D.C.) denied the group Catharsis on the Mall a preliminary injunction against the National Park Service from enforcing its regulation against certain bonfires on Park Service land in D.C.
The ruling, though preliminary, means that Catharsis on the Mall didn't get to burn its wooden Phoenix this weekend--symbolic speech in support of veterans' and PTSD survivors' access to treatment.
The case arose when Catharsis sought permission to hold its second annual 72-hour vigil near the Washington Monument, which was to culminate in the burning of a 24-foot tall Phoenix. The group sought to show its support for veterans' and PTSD survivors' access to treatment.
The NPS denied permission, however, citing a new regulatory scheme for outdoor events, including a regulation that bans burning structures by size.
But here's the problem: NPS granted a permit to the group to burn a structure during its vigil last year that was even bigger than this year's Phoenix. And the D.C. Fire Department didn't think the Phoenix burning would have been a problem.
Still, the court ruled that Catharsis didn't show a likelihood of success on the merits. In particular, the court wrote that the new bonfire regulation was a content-neutral time, place, manner regulation on speech in a public forum; that it was narrowly tailored to maintain safety; and that Catharsis had other ways to convey its message.
The ruling is only on Catharsis's motion for a preliminary injunction, but given the court's approach to the likelihood-of-success question, the final ruling will almost certainly be the same.
Saturday, November 12, 2016
The D.C. Circuit ruled this week in LeFande v. D.C. that the D.C. Metropolitan Police Department did not violate an officer's First Amendment rights when the MPD fired the officer for internal e-mails critical of MPD operations and officers, and refusing to respond to a superior's request.
The ruling puts an end to this very long-running dispute, and the very long-running, and highly contentious, relationship between the officer, LeFande, and the MPD.
This piece of the case arose when Matthew LeFande, police reserve officer with the MPD (a volunteer position designed to assist full-time officers), wrote a series of internal e-mails highly critical of certain MPD operations and MPD officers, and declining to comply with a superior's request. (The case actually started much earlier, with a suit LeFande filed against the MPD, and the MPD fired him. He raised a First Amendment claim to his termination (based on his free speech in bringing the suit), but the MPD said it actually fired him for the e-mails--thus opening this latest chapter of the case.)
The court ruled that it didn't have to say whether the e-mails constituted citizen speech on matters of public concern (under Pickering), because the MPD's interest in efficiency outweighed LeFande's interests in free speech, anyway. The court held that LeFande's free-speech interest in sending e-mails criticizing MPD operations and officers "cannot outweigh the fact that their 'disruptive force' . . . threatens workplace efficiency." It further held that LeFande's interest in sending e-mails declining a superior's request were outweighed by the MPD's interest in efficiency, because "[i]f police department leadership faced opposition from employees after every routine request, the machinery of law enforcement would grind to a halt."
The court conceded that some of LeFande's speech (especially those e-mails criticizing MPD operations) implicated matters of public concern--perhaps more than the survey questions in Connick. But it ruled that the MPD's interest outweighed LeFande's, especially "given the 'special degree of trust and discipline required in a police force.'"
Friday, November 4, 2016
In her opinion in Hill v. Williams, United States District Judge Christine Arguello enjoined Colorado Revised Statute § 1-13-712(1), which prohibits a voter from “show[ing] his ballot after it is prepared for voting to any person in such a way as to reveal its contents.” In late October, the Denver District Attorney issued a news release reminding voters that posting an image of a completed ballot - - - a "ballot selfie" - - - was a misdemeanor. Two separate sets of plaintiffs thereafter sued to enjoin the Colorado statute as a violation of the First Amendment.
As Judge Argeullo explains,
Colorado uses an all mail-in ballot election. Every registered voter who registered to vote on or before October 31, 2016, has received a mail-in ballot to complete at home. Individuals who did not register by that date are allowed to register at the polling places and vote up to, and including, Election Day. Moreover, voters who have obtained ballots in the mail are still allowed to vote in person on Election Day. . . . The Deputy Secretary of State testified that she anticipates between 100,000 and 750,000 Coloradans will vote in person on November 8, 2016.
The ballot selfie prohibition thus included photographs at polling places as well as photographs of ballots completed for mailing.
The judge first rejected the state's arguments that the plaintiffs lacked standing or that the case was already moot. The judge likewise rejected the argument that an injunction would alter election laws and procedures immediately before an election. Despite the timing, the judge stated that the plaintiffs' request (and her injunction) was narrowly crafted, and further noted that "if local rules at polling places prohibit the use of cameras due to privacy concerns, nothing in this Court’s Order prohibits the enforcement of those rules."
In the discussion of the First Amendment merits, the judge applied intermediate scrutiny for purposes of the preliminary injunction and concluded that the statute failed. The judge also accepted that voter fraud was a significant government interest. However, the judge found the means chosen were not sufficiently narrowly tailored to serve that interest: the statute prohibits a wide range of conduct and does not include a mens rea related to voter fraud. Moreover, other extant laws could achieve the purpose of preventing voter fraud.
Thus, the judge entered a preliminary injunction against the defendant prosecutors
from enforcing Colorado Revised Statute § 1-13-712(1) by prosecuting, referring for prosecution, and/or investigating violations thereof, or instructing any person to remove from publication any photograph or image of that person’s voted ballot, unless such violations or publication is in connection with violations of other criminal laws. Nothing in this Order shall alter the ability of Defendants or other officials to enforce any other laws, rules, or regulations related to the administration of the election, including those rules in effect at polling places.
This opinion contrasts with the opinion regarding the New York statute. Like the New York statute, the Colorado statute is longstanding (section § 1-13-712 was passed in 1891, but was most recently amended in 1980), and both lawsuits were filed close to the pending election. However, Judge Arguello balanced the First Amendment interests in favor of the individuals and issued a narrow but effective injunction.