Monday, May 18, 2015

DC Circuit Holds No Clearly Established Right Not To Be Tasered

In its opinion in Lash v. Lemke, the Court of Appeals for the District of Columbia Circuit affirmed the grant of a summary judgment in favor of law enforcement officers in a suit filed by an Occupy D.C. protestor for a violation of Fourth and First Amendment rights.

Judge Griffith, writing for the court, and joined by Chief Judge Garland and Judge Kavanaugh, described the arrest of Ryan Lash at the Occupy DC encampment in January 2012 by United States Park Police Officers Tiffany Reed, Frank Hilscher, and Jennifer Lemke:

Officer Tiffany Reed, who had been following Lash as he hurried through the tents, stepped up behind Lash and seized his arms from the rear. Lash pulled his arms away and held them in front of his body, continuing to walk away as he insisted that he was innocent. Reed again sought to restrain Lash from behind and Lash again pulled his arms away from her. Reed then took hold of Lash’s left arm while Hilsher approached and seized his right arm. Lemke approached at the same time and drew her Taser from its holster, holding it ready.

Though Lash’s arms were now held by two different officers, he continued to struggle to keep his feet while Reed and Hilsher worked for several moments to gain control of him. Lemke, standing nearby and behind the trio, fired her Taser into Lash’s lower back. He fell to the ground, and the officers handcuffed him.

Lash argued that Lemke’s use of the Taser constituted excessive force in violation of Lash’s Fourth Amendment rights and was motivated by retaliatory animus against his protected expression in violation of his First Amendment rights.  The defendant officers raised qualified immunity and the district judge granted summary judgment in their favor.

Relying on Ashcroft v. al- Kidd (2011), the DC Circuit Court of Appeals concluded that the "claimed right, whether it exists or not, is by no means 'clearly established.'"  In so doing, however, the court acknowledged that this inquiry cannot be abstract, but must occur "in the specific context of the case."  This "context," the court further acknowledged, depended on whether Lash was "resisting arrest." 

This would seemingly make summary judgment - - - requiring no genuine disputes of material fact - - - difficult, but the court interestingly relied on multiple video-recordings of the "episode" which rendered Lash's description a "visible fiction."   

Here is one of the videos of the incident:


The court further rejected Lash's arguments regarding the video as conclusive:

Lash argues that we may not rely on the videorecordings in this way because they “cannot fully convey everything that people at the scene felt” such as “how much force one person is exerting” or “the level of detail a person will experience in the moment.” This is no argument at all. The Supreme Court has explained that we determine whether a right is clearly established based on the “objective legal reasonableness of an official’s acts,”  protecting officers from liability unless “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”  Subjective factors like those Lash identifies here cannot shed any light on whether a reasonable officer in these circumstances would have believed her actions violated Lash’s clearly established rights. It is that objective test, not Lash’s knowledge or Lemke’s thoughts, that determines the scope of qualified immunity. The videorecordings in the record provide us all we need to determine what a reasonable officer would have known at the scene. And we do not hesitate to conclude from the videorecording that there is “no genuine issue of material fact” regarding Lash’s active resistance.

[citations omitted]

Given the increased use of videorecordings in cases against police officers, the court's discussion of 'what the video shows' might be expected to be used in other cases.

Here, however, the court concludes that Lash was "actively resisting arrest," and thus there was no clearly established right not be subject to a Taser. 

 As to the First Amendment claim, the court quickly found that Lash did not show the officer had "retaliatory animus."


May 18, 2015 in Courts and Judging, Criminal Procedure, Film, First Amendment, Fourth Amendment, Opinion Analysis, Speech, Web/Tech | Permalink | Comments (3) | TrackBack (0)

Monday, May 11, 2015

Second Circuit Upholds Admissibility of Rap Video and Tattoos Against First Amendment Challenge

In its opinion in United States v. Pierce,  the Second Circuit considered the arguments of co-defendant/appellant Melvin Colon regarding the admissibility of a rap video and images of tattoos in the criminal trial. The unanimous opinion, authored by Judge Denny Chin, affirmed the convictions of Colon and his co-defendants for conspiracy, racketeering, murder, narcotics trafficking, and firearms offenses largely related to their activities as members of a "violent street gang, dubbed the Courtlandt Avenue Crew (ʺCACʺ) by the government,"  as well as a gang known as Godʹs Favorite Children, or ʺGFC.ʺ

Mozart Graffiti via

Colon contended that his First Amendment rights were violated when the district court permitted the government to present as evidence a rap video and images of his tattoos, some of which he had posted to his Facebook page.  The "rap video" portrayed Colon as rapping: ʺYG to OG / Somebody make somebody nose bleed/ Iʹm OG shoot the Ruger / Iʹm a shooter.ʺ A witness, also seen in the video, testified for the prosecution that the Young Gunnaz crew, or YG, was feuding with the OG (formerly the GFC). The images of the tattoos introduced at trial were explained by the Second Circuit as including:

a close‐up of Colonʹs hand, showing his ʺY.G.K.ʺ tattoo, which stands for ʺYoung Gunnaz Killer.ʺ In some of the photographs Colon is pointing a gun at his Y.G.K. tattoo, indicating, according to the government, his desire to harm members of the Young Gunnaz. Other tattoos depicted in the photographs introduced at trial included one on his right arm that read ʺCourtlandtʺ; tattoos on his left arm that referenced [co-defendant] Meregildoʹs nicknames (ʺYoungʺ and ʺKillaʺ); and one stating ʺM.I.P. [Mac In Peace] T‐Money,ʺ referring to Harrison, the former leader of CAC.

The Second Circuit panel rejected the First Amendment challenges to the introduction of the evidence. First, the court noted that the conviction did not rest on the expression: "here, the speech is not 'itself the proscribed conduct,'" interestingly citing United States v. Caronia, the 2012 Second Circuit case reversing a conviction for promoting the off-label use of prescription drugs. Additionally, the Second Circuit considered Colon's argument that the rap lyrics were merely "fictional artistic expressions," and discussed the New Jersey Supreme Court decision last year in State v. Skinner, noting that the court there observed that ʺ[o]ne would not presume that Bob Marley, who wrote the well‐known song ʹI Shot the Sheriff,ʹ actually shot a sheriff.ʺ  However, the Second Circuit distinguished Skinner in which the court reversed the conviction (although not explicitly on the basis of the First Amendment), by concluding that here the rap lyrics and tattoos were properly admitted, because they were relevant and their probative value was not substantially outweighed by the danger of unfair prejudice.  Specifically - - - if cursorily - - - the Second Circuit reasoned:

The government proffered the rap video to show Colonʹs animosity toward the Young Gunnaz, as well as his association with CAC. The government similarly offered the tattoo evidence to help establish his motive for violence against the Young Gunnaz, and to show his loyalty to Harrison and Meregildo ‐‐ indeed other members of CAC had similar tattoos. Hence, the rap video and tattoos were relevant, their probative value was not outweighed by the danger of unfair prejudice, and Colonʹs First Amendment rights were not implicated when the district court admitted the evidence from his social media account.

As in other cases raising First Amendment challenges to the introduction of expressive evidence, the First Amendment issues are subsumed into the evidentiary one.

Colon also challenged a portion of the Stored Communications Act (SCA), 18 U.S.C. § 2703(c)(1), regarding the subpoenaing of Facebook for page content.  Appellant Colon, however, is not challenging the Government's acquisition of his own Facebook content, however, but argued that SCA's prohibition of his subpoena of Facebook content from a witness, denied him his Fifth Amendment due process right to present evidence and his Sixth Amendment right to confront adverse witnesses.  Colon managed to obtain some of the Facebook postings through the work of a private investigator and his attorney used it in cross-examination and introduced portions of it.  The Second Circuit declined to reach the constitutional question, given that "Colon possessed the very contents he claims the SCA prevented him from obtaining, and his suggestion that there could have been additional relevant exculpatory material in the Parsons Account is purely speculative."

The court's opinion resolves the issues before it (including a sentencing issue which earned a remand), but does little to elucidate the important First Amendment concerns that remain regarding the admissibility of rap lyrics and tattoos in criminal trials.

May 11, 2015 in Criminal Procedure, Due Process (Substantive), First Amendment, Music, Opinion Analysis, Race, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2015

District Judge Rejects Challenges to Requirement that Government Contractors Post Employee Rights Notice

In an opinion today in National Association of Manufacturers (NAM) v. Perez, Judge Amit Mehta of the District of Columbia District Court rejected various challenges to the Department of Labor's so-called "Posting Rule," a regulation requiring, as a condition of nearly all federal contracts, that contractors post workplace notices informing their employees of their rights under the National Labor Relations Act.  The "Posting Rule" is derived from President Obama's Executive Order 13496, promulgated in January 2009 pursuant to the Procurement Act.

140px-DOL_Seal_with_HammerThe central constitutional challenge is that the "Posting Rule" is compelled speech and violates the First Amendment as an unconstitutional condition.  The court's first task was to determine the relevance of a NAM v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), overruled in part by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014).  The judge concluded that while the posting at issue in NAM was "nearly identical," that case was not a First Amendment one - - - although it drew on some First Amendment principles - - - but an interpretation of §8(c) of the NLRA which prohibits the expression of views, argument, or opinions as constituting an unfair labor practice. 

Instead, the challenge here was analogous to the Supreme Court's decision in Rumsfeld v. FAIR involving the Solomon Amendment directed at law schools. 

There is little material distinction between FAIR and this case. The facts differ, but the First Amendment analysis and outcome are the same. Like the Solomon Amendment, the Posting Rule is a “far cry” from the government-mandated speech deemed unconstitutional in Barnette and Wooley.  Requiring an employer to post government speech about labor rights is “simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”

Moreover, the Posting Rule does not require a contractor to speak at all. Rather, the contractor is required to host government speech as a condition of receipt of a federal contract. That, of course, presents a contractor with a choice—agree to post the Notice or forgo federal contracting. But that choice is no different than the one presented by the Solomon Amendment— either accommodate a military recruiter or forgo federal funds.

Additionally, the Posting Rule does not interfere with the contractor’s ability to convey a different message. A contractor can still express its own views or engage in lawful activities to discourage unionization. Indeed, nothing in the rule prevents a contractor from creating its own posting and placing it next to the Department of Labor-drafted Notice, so as to make clear that the Notice does not reflect the contractor’s own views and its display is government mandated. *** A contractor’s speech is thus not “affected by the speech it [is] forced to accommodate.” 

Nor are employees likely to believe that the Notice is their employer’s speech.

[citations omitted].  The court rejected NAM's attempt to distinguish FAIR because the speech here is a “slanted list of rights that unfairly promotes unionization while pointedly omitting a host of other critical employee rights,” noting even if the court could determine the meaning of "slanted," it is well settled that the government may make content-based choices about its own speech.

The court rejected NAM's arguments regarding preemption, as well as its statutory and administrative law arguments.  It therefore entered summary judgment in favor of the government.

Given the vigor with which NAM has litigated similar issues, it will most likely appeal.  However, recently appointed Judge Mehta has authored a closely reasoned opinion that should withstand review.
NOTICE[image via]

May 7, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Second Circuit Finds NSA's Bulk Telephony Metadata Collection Not Authorized by Congress

In its lengthy, well-reasoned, and unanimous opinion in American Civil Liberties Union (ACLU) v. Clapper, the Second Circuit today concluded that NSA's bulk telephony metadata collection is not authorized by §215 of the PATRIOT Act, 50 USC §1861(b)(2)(A).   After hearing oral arguments last September, the panel reversed the district court's opinion that had rejected both the statutory and constitutional challenges to the scheme.  Recall that this widespread collection has been controversial since the program was first revealed through information obtained by Edward Snowden; we've additionally discussed the issues here, here, and here.

CallwaitingThe Second Circuit, in the opinion authored by Gerard Lynch, did agree with the district judge that the ACLU plaintiffs had standing to challenge the collection of call records.  The court stated that "the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program."  The court rejected the government's contention that any alleged injuries depend on the government's reviewing the information collected rather than simply collecting it: the collection is [challenged as] a seizure and the Fourth Amendment prohibits both searches and seizures.  The court distinguished Amnesty International v. Clapper in which the United States Supreme Court's closely divided opinion concluded that the alleged standing was based on a "speculative chain of possibilities."  Instead:

appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.

The panel likewise held that the ACLU organizations have standing to assert a First Amendment violation regarding its own and its members' rights of association.

However, the court did not rule on the Fourth and First Amendment claims explicitly, although its conclusion regarding §215 occurs in the shadow of the constitutional issues, or as the court phrases it: "The seriousness of the constitutional concerns" has "some bearing on what we hold today, and on the consequences of that holding." 

What the court does hold is that "the telephone metadata program exceeds the scope of what Congress has authorized and there violates §215."  After a discussion of the program and §215, it first considers the government's arguments that the judiciary is precluded from considering the issue.  The court interestingly observes that judicial preclusion here would "fly in the face of the doctrine of constitutional avoidance."

[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.

The court likewise held that there was no implicit preclusion.  

On the merits of the §215 challenge, the court essentially found that the government's interpretation of "relevant" was too broad.  The court noted that both parties relied on the grand jury analogy, supported by the statute's language and legislative history.  Yet for the court, the government's argument faltered on this very ground:

Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.

Moreover, the court relies on the Privacy and Civil Liberties Oversight Board (PLCOB) Report regarding the overbreadth, noting that "counterterrorism in general" is not sufficiently narrow.  Further, the court states that the government's interpretation reads the "investigation" language of §215 out of the statute, and even more specifically, §215's language "relevant to an authorized investigation (other than a threat assessment)."
Again, the court squarely rests its conclusion on §215 and avoids the constitutional issues.  Nevertheless, it does discuss them.  It largely relegates the First Amendment issue to a footnote (footnote 12).  Its discussion of the Fourth Amendment issue is more robust, including a discussion of  Smith v. Maryland, the 1979 pen register case, and United States v. Jones, the 2012 GPS case.
These constitutional issues would - - - should? - - - shape any understanding by Congress according to the court.
Concurring, Judge Robert Sack, emphasizes that the role of the courts should not be minimized.  Judge Sack's concurrence is also worth reading its more robust discussion of the First Amendment issues.
Perhaps unexpectedly, the court does not enjoin the metadata collection program.  The court notes that §215 is set to expire and that it is "prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape."   Yet, it strongly implies, it remains ready and able to reach the constitutional issues if necessary.
[image "Call Waiting" via]

May 7, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)

Friday, May 1, 2015

Ninth Circuit Rejects First Amendment Challenge to Disclosure of Significant Donors to NonProfit

The Ninth Circuit's opinion in Center for Competitive Politics v. Harris rejected a First Amendment challenge to a disclosure of major donors requirement.

Form-990The nonprofit Center for Competitive Politics  (CCP)- - - an organization to promote the First Amendment and "campaign freedom"- - - sought to enjoin the California Attorney General from requiring it to disclose the names and contributions of the Center’s “significant donors” on Internal Revenue Form 990 Schedule B, which the Center must file with the state in order to maintain its registered status with the state’s Registry of Charitable Trusts.  The unanimous panel affirmed the district judge's denial of a preliminary injunction.

The court rejected as a "novel theory" CCP's argument that the disclosure requirement alone is so injurious that it must meet strict scrutiny. 

CCP is correct that the chilling risk inherent in compelled disclosure triggers exacting scrutiny—“the strict test established by NAACP v. Alabama,” —and that, presented with a challenge to a disclosure requirement, we must examine and balance the plaintiff’s First Amendment injury against the government’s interest. However, CCP is incorrect when it argues that the compelled disclosure itself constitutes such an injury, and when it suggests that we must weigh that injury when applying exacting scrutiny. Instead, the Supreme Court has made it clear that we must balance the “seriousness of the actual burden” on a plaintiff’s First Amendment rights. Here, CCP has not shown any “actual burden” on its freedom of association.

[citations omitted].  The court largely relies on  the Supreme Court's 2010 decision in Doe v. Reed, (John Doe I) in which the Court upheld the constitutional of Washington's disclosure of petition signatures.  Indeed, the Ninth Circuit panel noted that

unlike in John Doe No. 1 or in other cases requiring the disclosure of the names of petition signatories, in this case, the disclosure would not be public. The Attorney General keeps Form 990 Schedule B confidential. Although it is certainly true that non-public disclosures can still chill protected activity where a plaintiff fears the reprisals of a government entity, CCP has not alleged any such fear here. CCP instead argues that the Attorney General’s systems for preserving confidentiality are not secure, and that its significant donors’ names might be inadvertently accessed or released. Such arguments are speculative, and do not constitute evidence that would support CCP’s claim that disclosing its donors to the Attorney General for her confidential use would chill its donors’ participation.

However, the Ninth Circuit left open the possibility that CCP could show "a reasonable probability that the compelled disclosure of [its] contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties" that would warrant relief on an as-applied challenge, just as the Court did in Doe v. Reed.  Recall that on remand in Doe v. Reed the Ninth Circuit found no such probability.  Given the confidential nature of the 990 Form here, CCP would most likely have an even more difficult time showing such a probability.

The Ninth Circuit also rejected the preemption claim.  Essentially although the Form is required by the federal IRS, federal law does not bar state attorneys from requesting the information in the form.


UPDATE: On May 15, 2015, the Center for Competitive Politics filed an Emergency Application for Injunction Pending Certiorari in the United States Supreme Court; more here.

May 1, 2015 in Campaign Finance, First Amendment, Opinion Analysis, Recent Cases, Speech | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 29, 2015

NYC MTA Amends Advertising Policy to Exclude Political Adverts

In a likely response to last week's decision by a federal district judge that the New York Metropolitan Transit Authority (MTA) must accept an anti-Muslim advert (representing that Jihad means "Kill Jews"), the MTA today amended its advertising policy to exclude all political advertisements. 

Mta-logo_1The new policy's purpose is to"convert the MTA’s Property from a designated public forum into a limited public forum by excluding advertising of a political nature."  The new policy prohibits advertising that:

  1. Is political in nature, including but not limited to advertisements that either:

    1. Are directed or addressed to the action, inaction, prospective action or policies of a governmental entity, except as permitted in Sections IV.A.2–IV.A.3 of this Policy [governing advertising by the MTA itself or government agencies]; or

    2. Prominently or predominately advocate or express a political message, including but not limited to an opinion, position, or viewpoint regarding disputed economic, political, moral, religious or social issues or related matters, or support for or opposition to disputed issues or causes.

The issue of anti-Muslim adverts on public transportation has caused much activity in the courts.  The new MTA policy is similar to one considered by the Sixth Circuit which found a rejection of an anti-Muslim advertisement in southern Michigan buses by the governmental authority SMART to be constitutional under SMART's  policy prohibiting several categories of advertising including "political or political campaign advertising."

[UPDATE: Here's some reporting on the issue by NPR's NYC station.]

April 29, 2015 in Current Affairs, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Federal Judge Finds Pennsylvania's "Revictimization Act" Unconstitutional

In a well-crafted but hardly surprising opinion in Abu-Jamal v. Kane, Chief Judge Christopher Conner of the Middle District of Pennsylvania concluded that Pennsylvania's "Revictimization Relief Act" is unconstitutional.

Recall that Act provided:

In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.

At the time of signing, it was clear that the Act was primarily directed at Mumia Abu-Jamal; Abu-Jamal brought suit soon after the Act was passed; another challenge was brought by Prison Legal News and consolidated.

Judge Conner began his opinion by noting that the First Amendment does not "evanesce" at the prison gate, and ended it by stating that the First Amendment does not "evanesce at any gate." (emphasis in original).   In applying well-settled First Amendment doctrine, Judge Conner focused on both  Simon & Schuster v. Crime Victims Board (1991) (holding unconstitutional the so-called "Son of Sam" law) and Snyder v. Phelps (2011) (essentially holding that free speech trumped the tort of intentional infliction of emotional distress).  Judge Conner easily rejected the State's argument that the statute regulated "conduct" - - - which is, after all, the word in the statute and which would merit lower scrutiny - - - noting that:

throughout its brief legislative gestation, the law was championed primarily as a device for suppressing offender speech.  The Act's sponsor extolled its capacity to silence Abu-Jamal in particular.  The chairman of the house judiciary committee opined that the Act would end the "extreme distress" suffered by victims when offenders achieve celebrity, admonishing Goddard College for providing a "cold blooded murderer" [Abu-Jamal] with a speaking forum.

 (emphasis in original; citations to Stipulation omitted).  As a content-regulation, the Act "instantly fails" the exacting scrutiny standard according to Judge Conner.

In addition to the content-restriction fatality, Judge Conner found that the Act was impermissibly vague and substantially overbroad as those doctrines are derived from due process.  The Act's "central limitation" turns on the unknowable emotive response of victims, which a person cannot determine "short of clairvoyance."   Moreover, the Act applies to "offenders," a term the statute does not define, and which could presumably apply to a wide swath of persons, including non-offender third parties who publish statements by offenders.  Relatedly, the overbreadth defect of the Act concerned the judge:

[T]he Act ostensibly affects protected - - - and critically important - - - speech, including: pardon applications, clemency petitions, and any testimony given in connections with those filings; public expressions of innocence, confessions, or apologies; legislative testimony in support of improved prison conditions and reformed juvenile justice systems; programs encouraging at-risk youth to avoid lives of crime; or any public speech or written work whatsoever, regardless of the speaker's intention or the work's relation to the offense.

In other words, if the victim can demonstrate "mental anguish," the statute would be satisfied.  And, combined with the broad notion of "offender," taken to its "logical conclusion," the Act would "limit an accused person's right to profess his innocence before proven guilty."

Pennsylvania would be wise not to appeal this judgment.  It would have even been more wise if the legislature had not passed - - - and the Governor had not signed - - - such a patently unconstitutional statute last year.

Would the PA Act have covered MLK's famous publication?


April 29, 2015 in Books, Criminal Procedure, Current Affairs, Due Process (Substantive), First Amendment, Fourteenth Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Supreme Court Upholds Florida's Judicial Campaign Solicitation Ban in Williams-Yulee

In its 5-4 opinion in Williams-Yulee v. The Florida Bar, the Court concluded that Florida's Code of Judicial Conduct 7C(1) prohibiting the personal solicitation of campaign funds by judicial candidates does not violate the First Amendment. 

From the oral arguments, it did seem as if the opinion would be closely divided, but it was less predictable that Chief Justice Roberts would be writing for the majority upholding Florida's Canon7C(1).  In the majority opinion, joined by Justices Breyer, Sotomayor, and Kagan in full, and by Ginsburg except as to part II, Roberts began:

Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Sen- ate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.

We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.

image via

However, writing only for a plurality, Chief Justice Roberts, relying on Republican Party of Minnesota v. White (2002), held that a "State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest."  The plurality rejected the Florida Bar's argument, supported by several amici, that the Canon should be subject to the more permissive standard of Buckley v. Valeo (1976) requiring that the law be  “closely drawn” to match a “sufficiently important interest.” It concluded that the  “closely drawn” standard is a "poor fit" for this case which is a claimed violation of a right to free speech rather than a claimed violation of “freedom of political association.”

Justice Ginsburg, concurring, reiterated her dissent in Republican Party of Minnesota v. White regarding the standard of review, and emphasized that the Court's "recent campaign-finance decisions, trained on political actors, should not hold sway for judicial elections," specifically discussing Citizens United (2010) and McCutcheon (2014).  Justice Breyer, who joined the Chief Justice's opinion in full, nevertheless wrote briefly regarding the standard of review, reiterating his previous statements that  he views "this Court’s doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied."

Despite the highest scrutiny, however, Chief Justice Roberts's opinion for the Court declared that

Canon 7C(1) advances the State’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny.

The Court found that “protecting the integrity of the judiciary” and “maintaining the public’s confidence in an impartial judiciary” were both compelling governmental interests.  (The Court did not discuss a specific interest of lawyers or their clients in judicial integrity).  As to the narrow tailoring, the Court rejected the "underinclusive" argument - - - essentially that judicial candidates could indirectly solicit campaign funds - - - by noting that while underinclusivity may raise a "red flag," there is no "freestanding 'underinclusiveness limitation.'”  Here, the Court concluded that

personal solicitation by judicial candidates implicates a different problem than solicitation by campaign committees. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public. Florida’s choice to allow solicitation by campaign committees does not undermine its decision to ban solicitation by judges.

There are three dissenting opinions by the Justices: Scalia, joined by Thomas; Kennedy, and Alito.  As the author of Caperton v. Massey, on which the Court partially relies for its compelling governmental interest in judicial integrity, Kennedy's opinion is perhaps most noteworthy.  (And recall that Chief Justice Roberts dissented in Caperton).  Caperton, based in due process rather than free speech, is uncited in Kennedy's concurring opinion, which focuses on the First Amendment:

This separate dissent is written to underscore the irony in the Court’s having concluded that the very First Amendment protections judges must enforce should be lessened when a judicial candidate’s own speech is at issue. It is written to underscore, too, the irony in the Court’s having weakened the rigors of the First Amendment in a case concerning elections, a paradigmatic forum for speech and a process intended to protect freedom in so many other manifestations.

At the crux of Kennedy's dissent, as the other dissents, is the similarity of judicial elections to political elections.  The distinction - - - or lack thereof - - - between judicial and other elections is the linchpin on which the differing views of the case pivot.  Chief Justice Roberts ends the Court's opinion with an originalist reflection on that distinction:

The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with life tenure constituted “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 78, at 465. Jefferson thought that making judges “dependent on none but themselves” ran counter to the principle of “a government founded on the public will.” 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given our Nation jurists of wisdom and rectitude who have devoted themselves to maintaining “the public’s respect . . . and a reserve of public goodwill, without becoming subservient to public opinion.” Rehnquist, Judicial Independence, 38 U. Rich. L. Rev. 579, 596 (2004).

It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.


April 29, 2015 in Campaign Finance, Courts and Judging, Due Process (Substantive), Federalism, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, April 24, 2015

Ninth Circuit Upholds Arizona's Voter Registration Form for Party Preference

Before 2011, Arizona law required that voter registration forms include a blank space for the registrant’s party preference.  But a 2011 law required the voter registration form distributed by the Arizona Secretary of State to list the two largest parties (as measured by number of registered voters) on the form, as well as provide a blank line for “other party preferences.” Ariz. Rev. Stat. § 16-152(A)(5).

In response to the amendment, the Arizona Secretary of State revised box 14 on the Registration Form, and the opinion includes this illustration:


Arizona_registrationMinority parties Arizona Green Party and the Arizona Libertarian Party challenged the new law as violative of their First and Fourteenth Amendment rights.  In its opinion in Arizona Libertarian Party v. Bennett, the Ninth Circuit upheld the statute as constitutional.

The panel majority opinion by Judge Tashima noted the intertwining of the equality and First Amendment claims:

“Restrictions on voting can burden equal protection rights as well as ‘interwoven strands of liberty’ protected by the First and Fourteenth Amendments—namely, the ‘right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’”

It stated that the party challenging the law bears “the initial burden of showing that [the state’s] ballot access requirements seriously restrict the availability of political opportunity" and that here any burden was de minimis.  The panel thus applied rational basis scrutiny which the new form easily passed.

Concurring, Judge McKeown argued that the rational basis review burden-shifting standards derived from Ninth Circuit precedent and which the majority applied were "inconsistent with the Supreme Court’s approach to analyzing voting rights challenges." Instead, the court should apply the balancing tests articulated in Burdick v. Takushi (1992) and reiterated in Crawford v. Marion County Election Board (2008), although Judge McKeown acknowledged that the "semantic distinction between the balancing test and the rational basis standard" may make little difference in most cases.  Indeed, here Judge McKeown recognized that Arizona's asserted interests in reducing printing costs and easing administrative efficiency are “sufficiently weighty to justify” the speculative burden on the plaintiff minority parties' rights.


April 24, 2015 in Association, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 22, 2015

Federal District Judge Finds First Amendment Requires Anti-Muslim Adverts

In a 28 page opinion district judge John Koeltl has granted a preliminary injunction - - - stayed for 30 days - - - requiring New York's transit authority to accept anti-Muslim advertisements on its buses. 

BUSB62The case, American Freedom Defense Initiative v. Metropolitan Transportation Authority (AFDI v. MTA) should be read as part of a series of cases involving often but not always successful attempts to place anti-Muslim adverts in public places.  Previously in NYC, a federal judge found the Metropolitan Transit Authority's initial rejection of the advertisements under its (since amended) "civilty standard" to be unconstitutional and the advertisements appeared, causing some NYC residents to engage in "more speech" in reaction to the advertisements.  On the contrary, the Sixth Circuit found  the rejection of similar advertisements in southern Michigan buses by the governmental authority SMART to be constitutional under its policy prohibiting several categories of advertising including "political or political campaign advertising."  Last month, a Philadelphia district judge granted a preliminary injunction in favor of AFDI and found SEPTA's anti-disparagement  standard for advertising on its buses, and its rejection of the proffered AFDI advertisement, violates the First Amendment.  On the other hand, also last month, the Ninth Circuit upheld the rejection of advertisements proposed by Seattle Mideast Awareness Campaign applying a limited public forum doctrine. 

Judge Koeltl described the advert, known as the "Killing Jews" ad,  as portraying

a menacing-looking man whose head and face are mostly covered by a head scarf. The ad includes a quote from “Hamas MTV”: “Killing Jews is Worship that draws us close to Allah.” Underneath the quote, the ad stated: “That’s His Jihad. What’s yours?”

The MTA determined that the ad violated MTA Standard § (a)(x), prohibiting material “the display of which the MTA reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.”  Thus, the MTA argued that it excluded the Killing Jews ad because it falls into two separate categories of unprotected speech: “fighting words,” under Chaplinsky v. New Hampshire (1942), and incitement of violence or lawlessness under Brandenburg v. Ohio (1969).

Judge Koeltl held that "this case plainly does not present the rare occurrence where one of these seldom-applied categories is met."

Koeltl's reasoning rested on the MTA's failure to show that this particular ad would immediately provoke violence.  The judge discounted the MTA's argument that NYC is a preferred "terrorism target" in favor of a view of a multicultural urbanity:

Indeed, the defendants [MTA] underestimate the tolerant quality of New Yorkers and overestimate the potential impact of these fleeting advertisements. It strains credulity to believe that New Yorkers would be incited to violence by ads that did not incite residents of Chicago and San Francisco to similar acts. This is not to minimize the terror threats to New York City, but those threats do not arise from these fleeting advertisements.

Subjecting the advertisement's rejection to strict scrutiny, the judge further held that the exclusion of the Killing Jews ad is not narrowly tailored to achieve any security interests.  "Rather than banning an advertisement outright, the transit authorities could run the disputed advertisement with adjacent disclaimers, or counter-advertisements, expressing disagreement with the ad and/or explaining its context," including its parodying of another ad campaign regarding the positive aspects of the word "jihad."

While these "more speech" suggestions are directed to the MTA, New Yorkers have also been known to resort to individualized attempts at "more speech," raising the problem of the MTA's efforts to combat "vandalism."

April 22, 2015 in Current Affairs, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, April 3, 2015

En Banc Ninth Circuit Rejects First Amendment Challenge to Ballot Initiative Sponsor Requirements

The en banc Ninth Circuit's opinion in Chula Vista Citizens for Jobs and Fair Competition v. Norris  rejected First Amendment challenges to two requirements that the State of California and the City of Chula Vista, California, place on persons who wish to sponsor a local ballot measure: 

that the official proponent of a ballot measure be an elector, thereby disqualifying corporations and associations from holding that position; and

that the official proponent’s name appear on each section of the initiative petition that is circulated to voters for their signature.

Writing for the unanimous en banc court and affirming the district judge, Judge Reinhardt concluded that the provisions were "plainly constitutional."

image via

On the first provision, the court held that the requirement that an official proponent—a person seeking a unique position in a quintessentially legislative process—be an elector satisfied the First Amendment.  It concluded that

The plaintiffs seek a legislative power and, as they conceded at oral argument, many legislative and official political acts are properly reserved to members of the electorate. For example, corporations cannot vote.  Nor can they run for political office or be appointed to fill vacancies. Under California law, they cannot sign initiative petitions, sign candidate nominating papers, or introduce legislation,  The plaintiffs fail to provide any reason—and we find none—that the state and city may not similarly limit the exercise of the initiative power to members of the relevant political community: electors.

[citations omitted].  The Ninth Circuit rejected the challengers' appeal to Citizens United v. FEC (2010) as mandating strict scrutiny.  The challengers argued strict scrutiny was warranted because the California requirement is a direct ban on core political speech;  bans disfavored speakers’ speech; and requires speech by proxy.  The Ninth Circuit opinion flatly stated that the challengers "are wrong."  While the initiative process involves core political speech, the ban is only directed at corporations being the "official proponent—a unique legislative position that may properly be reserved to members of the political community" and corporations can otherwise speak as much as they'd like.  As to corporations specifically, the court returned to the notion that corporations are distinct from natural persons, they do not have "the right to vote or to hold public office (or even to sit on the bench)" as the plaintiffs seemingly conceded.  "We accordingly refuse to extend Citizens United to grant to corporations and associations the right to hold a distinct, official role in the process of legislating, by initiative or otherwise."  Finally, the court summarily rejected the speech by proxy argument:

Under the plaintiffs’ view of Citizens United, the government could not exclude corporations or associations from any position available to human beings because to do so would impermissibly require speech by proxy—an assertion that is clearly untenable.

 The second requirement - - - mandating disclosure - - - was subject to "exacting scrutiny" rather than the higher standard of "strict scrutiny," in accordance with Citizens United.  The Ninth Circuit also relied heavily on Doe v. Reed (2010) in which the Court upheld disclosure and rejected a "right to be anonymous" when signing a ballot initiative petition. Here, the Ninth Circuit likewise upheld an interest in the integrity of the electoral process, citing Doe v. Reed, and also analyzed the informational interest. The Ninth Circuit also took a swipe at the sincerity of the anonymity argument:

It also bears noting, although we do not base our decision on it in any respect, that the interest of the proponents in anonymity is especially weak given the facts of the instant case. Both Kneebone and Breitfelder engaged in public activities advocating passage of Proposition G beyond the activities required of them as its official proponents, speaking at televised public meetings and having their names used in campaign materials provided to voters. Moreover, they explained in depositions that they did not really desire anonymity, but rather “wanted voters to know that the ‘correct’ sponsor of the ballot initiative was the Association of Builders and Contractors, Inc. and the Chula Vista Citizens for Jobs and Fair Competition.”

More doctrinally, the court concluded that the required "disclosure poses at the most a minimal burden on First Amendment rights."

 The decision is a clear rejection of an extension of Citizens United to any type of "corporate speech" and a clear adherence to the constitutionality of disclosure mandates in both Citizens United and Doe v. Reed.  And it should be clear that this unanimous opinion is not a good candidate for certiorari.

April 3, 2015 in Elections and Voting, First Amendment, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Monday, March 30, 2015

Supreme Court Denies Certiorari to School's Ban on American Flag Clothing for Cinco de Mayo

In a summary order today,  the United States Supreme Court listed among the cases denied certiorari the controversial "Cinco de Mayo" case, Dariano v. Morgan Hill Unified School District. 

available via

The original controversy began with a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration.  The school officials regulated American flag clothing "in [the] context of ongoing racial tension and gang violence within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag.”  The district judge rejected the students' First Amendment and Equal Protection claims.  The Ninth Circuit affirmed,  and later denied en banc review, over a dissent, and issued an amended panel opinion which added several paragraphs of analysis.

The application of the classic Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) was predictable, but the amended opinion also discussed the “heckler’s veto,” a concept that is in some senses embedded in Tinker's "disruption" standard.

However, with the denial of certiorari, this particular  controversy - - - which had often been expressed as allowing a school district to ban the American flag - - - has apparently been decided, at least in the context of this particular school for a particular holiday on a particular year. 

However, as the opinion of the Ninth Circuit as amended noted, situations involving displays of the Confederate flag in the school context have been frequently litigated.   And this Term, the Court is considering a Confederate flag outside the school context in the "license plate" case just argued last week, Walker v. Texas Sons of Confederate Veterans.

March 30, 2015 in Equal Protection, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 23, 2015

Court Hears Oral Arguments in Texas Sons of Confederate Veterans About Specialty License Plate

The Court heard oral arguments today in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.

As we noted when certiorari was granted, the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination.  License plate schemes have been well-litigated: The Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.

622x350The doctrinal problems involving the Sons of Confederate Veterans proposed specialty plate, bearing the Confederate flag and rejected by Texas, surfaced during the oral arguments.

First, there is the issue of whether the specialty license plate had become a traditional public forum.  Justice Kennedy seemingly tended toward this view, noting - - - twice - - - that no one goes to parks anymore and so these license plates may be a new public forum for a new era. 

Less specifically articulated was whether if there was a limited public forum in the license plates this could have any meaning at all because there were no real standards.  Justice Ginsburg quickly asked the Texas Solicitor General, defending the constitutionality of the state scheme, whether it wasn't "nebulous."  The number of specialty license plates approved and the very few disapproved was noted several times, again making it seem as if any designation was not at all clear.

The notion of government speech was raised at numerous points, echoing the opinion of Fifth Circuit Judge Jerry Smith who had dissented and  contended that the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.

Yet Justice Sotomayor suggested that this might be "hybrid speech," asking counsel for the Texas Sons of Confederate Veterans whether this might not be the "reverse" of Wooley v. Maynard (1977): why should the State be compelled to put something on its license plates that it disapproves?

That the state might be seen as endorsing problematical messages surfaced repeatedly, including this discussion with counsel for the Texas Sons of Confederate Veterans:

JUSTICE GINSBURG: Suppose ­­ suppose the message ­­ the ­­ the applicant said, we want this design, and the design is a swastika. Is that speech that ­­ does ­­ does the ­­ the ­­ whoever is in charge of it ­­ of the license plate, do they have to accept ­­- - -
MR. GEORGE: I don't believe the State can discriminate against the people who want to have that design ­­- - -

JUSTICE GINSBURG: So they could have the swastika.  And suppose somebody else says, I want to have "Jihad" on my license plate.  That's okay, too?

MR. GEORGE: Vegan?


MR. GEORGE: Jihad. Jihad on the license plate? Can be ­­ there is obviously a court of appeal ­­ a district court from Ohio in which "Infidels" was held to be ­­ the State ­­


JUSTICE KENNEDY: What is your answer in this case as to Justice Ginsburg's hypothetical?  Yes or no, must the State put those symbols or messages on the plates at the request of the citizen?  Yes or no?


This prospect seemed worrisome.  But seemingly equally worrisome was the prospect of absolute government discretion manifested by the recurring hypothetical of a government allowing "Vote Republican" but not "Vote Democratic" on the specialty plates, a situation that is arguably consistent with Summum's interpretation of government speech.  Perhaps Sotomayor's suggested "hybrid speech" may be a compromise.  Or less likely, the Court could further clarify public forum and limited (designated) public forum doctrine.


March 23, 2015 in Federalism, First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2015

Ninth Circuit Upholds Rejection of Anti-Israel Ad on Metro Bus

The Ninth Circuit this week upheld a county's decision to reject an ad critical of Israel (and U.S. support for Israel) on the side of a Metro bus against a First Amendment challenge. The ruling says that the bus side is a limited public forum, subject to a lower level of scrutiny--a holding at odds with holdings in other circuits in similar cases--and concluded that the county's rejection of the ad met that lower standard.

We posted just last week on SEPTA's (Southeastern Pennsylvania) rejection of an anti-Muslim ad--and a district judge's ruling that the rejection violated the First Amendment. Here's our post on a federal case out of New York going the same way; and here's our post on the Sixth Circuit, moving in the opposite direction.

King County, Washington, which runs Metro's bus advertising program through a contract with a private company, has a policy that prohibits ads with certain content (ads for alcohol and tobacco, adult movies, video games for mature audiences, and the like). The policy also has two catch-all "civility clauses" that prohibit material that would foreseebly result in disruption of the transportation system or incite a response that threatens public safety.

SeaMAC, a non-profit opposed to U.S. support for Israel, proposed a Metro ad that read:



The county initially approved the ad. But a local television report on the ad provoked a massive hostile, even threatening, response, which overwhelmed the Metro call center and employees' e-mails and caused many customers to express safety concerns.

Soon after the story ran, but before Metro ran SeaMAC's ad, two pro-Israeli groups submitted their own ads:



And (with a picture of Hitler):



Given the hostile reaction to SeaMAC's ad, the county rejected both groups' ads under one of the civility clauses, and SeaMAC sued.

The Ninth Circuit ruled that the side of Metro buses was a limited public forum (not a public forum or designated public forum), based on the pre-screening process for ads, the county's prior implementation (it had not categorically accepted ads, and it had rejected some), and the nature of the side of a bus (the purpose of which was to raise revenue through ad sales).

The court recognized that this put it at odds with other circuits that have held that bus sides were a designated public forum (subject to strict scrutiny). But it said that those courts made a mistake:

Some of those courts, in our view, mistakenly concluded that if the government opens a forum and is willing to accept political speech, it has necessarily signaled an intent to create a designated public forum. Neither the First Amendment nor the Supreme Court's public forum precedent impose that categorical rule.

The court went on to rule that the county's decision was reasonable and viewpoint neutral, and therefore valid.

The dissent argued that the sides of Metro's buses were a designated public forum, subject to strict scrutiny, that the civility clause gave the county too much discretion, and that the county's decision (in light of the hostile reaction to SeaMAC's ad) raised heckler veto problems. The dissent would have remanded the case for determination whether the county's decision satisfied strict scrutiny.

March 19, 2015 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, March 16, 2015

Daily Read: Lidsky on Gajda's The First Amendment Bubble

Over at Jotwell, First Amendment scholar Lyrissa Barnett Lidsky discusses Amy Gajda's just-published book  The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.

Professor Lidsky provides the provocative thesis of Gajda's book: it's the fault of quasi-journalists and paparazzi that the First Amendment is losing its luster, or at least its ability to protect what might be called "real journalists."

Lidsky's last paragraph provides a terrific insight - - - as we wait for the United States Supreme Court's opinion in Williams-Yulee v. The Forida Bar - - - linking how elected state judges might feel about the press given their own experiences.

Although she never makes the point explicitly, Gajda’s book is fundamentally an exercise in legal realism. Even though the scope of constitutional rights is not supposed to vary with the winds of public opinion, The First Amendment Bubble documents that the scope of press rights has changed as judges have perceived changes in the press. As she amply and comprehensively demonstrates, trial court judges seem more hostile to the media and more favorable to privacy claimants than their appellate brethren. This hostility may reflect the fact that trial judges, especially state judges, are more likely to have been elected to their positions than their appellate brethren and are thus more likely to be alert to shifts in public opinion. Perhaps the starting point, then, for changing judicial opinions is changing public opinion. To do this, journalists must change their slipshod and sensationalist practices. Let’s hope they can.

Looks like a terrific read, especially for those who might not agree that journalists have lost their integrity any more than lawyers (or judges) may have.


March 16, 2015 in Books, Courts and Judging, First Amendment, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, March 13, 2015

Federal Judge Grants Preliminary Injunction for Anti-Muslim Bus Advertisement

 In his decision in American Freedom Defense Initiative (“AFDI”) v.  Southeastern Pennsylvania Transportation Authority (“SEPTA”),  federal district judge Mitchell Goldberg has granted a preliminary injunction in favor of AFDI and found SEPTA's anti-disparagement  standard for advertising on its buses, and its rejection of the proffered AFDI advertisement, violates the First Amendment.

LogoAFDI is a controversial organization that seeks to place anti-Islamic advertisements in a variety of public venues.  In New York City, a federal judge found the Metropolitan Transit Authority's initial rejection of the advertisements under its (since amended) "civilty standard" to be unconstitutional and the advertisements appeared, causing some NYC residents to engage in "more speech" in reaction to the advertisements.  On the contrary, the Sixth Circuit found the rejection of similar advertisements in southern Michigan buses by the governmental authority SMART to be constitutional under its policy prohibiting several categories of advertising including "political or political campaign advertising."

In Philadelphia, SEPTA's policy prohibited "Advertising that tends to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability."  The rejected advertisement read “Islamic Jew-Hatred: It’s in the Quran. Two Thirds of All US Aid Goes to Islamic Countries. Stop the Hate. End All Aid to Islamic Countries” and contained a relevant image captioned "Adolf Hitler and his staunch ally, the leader of the Muslim world, Haj Amin al-Husseini.”  (The opinion also contains an image of the advertisement).

Importantly, the parties stipulated that "over the past four years, SEPTA has accepted a number of concededly public issue advertisements on such topics as teacher seniority, fracking and contraceptive use."

Judge Goldberg found that the advertising space on the buses constituted a designated public forum, rejecting SEPTA's rather weak argument that it was a nonpublic forum.  The central issue, however, was whether the rejection of the advertisement was content (and perhaps viewpoint) based.  The judge found that it was, analogizing predictably to R.A.V. v. City of St. Paul (1992): 

In light of the Supreme Court’s holding in R.A.V., I find that SEPTA’s anti- disparagement standard is a content-based restriction. Like the ordinance in R.A.V., the anti- disparagement standard permits disparaging advertisements so long as they are not addressed to one of the disfavored topics which are specifically enumerated. In fact, outside of these specified topics, SEPTA’s standards could permit advertisements which disparage, for example, political affiliation or union membership. Thus, in selectively prohibiting speech based upon the subject addressed, SEPTA’s anti-disparagement standard constitutes a content-based restriction.

The judge then easily found that SEPTA's policy and its application could not survive strict scrutiny.

Whether or not SEPTA will appeal - - - or chose to revise its policy as NYC's MTA did - - - remains to be seen.


March 13, 2015 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 11, 2015

Sixth Circuit on Susan B Anthony List v. Driehaus

In its relatively brief opinion in Susan B. Anthony List v. Driehaus, the Sixth Circuit seemingly brought an end to the extensive litigation that arose from Stephen Dreihaus's 2010 campaign during which the Susan B. Anthony list, an anti-abortion organization wanted to put up a billboard criticizing Driehaus's vote in favor of  "Obamacare," reading "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." But the billboard never went up because the advertising company that owned the billboard space refused to put up the advertisement after Driehaus's counsel threatened legal action against it. Driehaus filed a complaint with the Ohio Elections Commission against SBA List claiming that the advertisement violated two sections of Ohio's false-statement in elections statute.  SBA List then sued, seeking declaratory and injunctive relief, based on a First Amendment challenge to the statute. Recall that the United States Supreme Court unanimously reversed the Sixth Circuit's finding that federal courts had no Article III power to hear the case.

The First Amendment issues, including Dreihaus' counterclaim for defamation, were thus remanded.  The federal district judge found the Ohio election provision violated the First Amendment.  In considering the defamation claim, which the judge also foreclosed on the basis of the First Amendment, the Sixth Circuit found that although the district judge's "categorical proclamation" that “[A]s a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation" was "a misstatement of First Amendment defamation law."  However, the Sixth Circuit affirmed the district judge's grant of summary judgment on the basis that Driehaus could not satisfy the elements of the state law defamation tort. Specifically, Driehaus could not prove that the statements by SBA were false: "it is enough that the statements had some truth, were substantially true, or were subject to differing interpretations" and Driehaus could not show any basis for a finding that the statements were made with actual malice.

Thus after extended litigation it now seems that there remain few, if any, bars to "falsehoods" in campaigns.

March 11, 2015 in Campaign Finance, Cases and Case Materials, Courts and Judging, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, March 9, 2015

Eighth Circuit Holds Missouri's "Disrupting a House of Worship" Crime Violates First Amendment


In its opinion today in Survivors Network of Those Abused by Priests, Inc. v. Joyce,  the Eighth Circuit found that Missouri's "House of Worship Protection Act,"  Mo. Rev. Stat. § 574.035, violates the First Amendment.

The statute provides that a person commits the crime of disrupting a house of worship if he or she "[i]ntentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services."

The panel's unanimous and relatively brief opinion, reversing the district judge, found fault with the statute as a content-based regulation, focusing as it does on "profane discourse, rude or indecent behavior."  The panel rejected the state's argument that it was a mere time, place, or manner regulation subject to a lower level of scrutiny.  Instead, the Eighth Circuit quoted the Court's decision in McCullen v. Coakley last Term that a statute "would not be content neutral if it were concerned with undesirable effects that arise from 'the direct impact of speech on its audience' or '[l]isteners' reactions to speech.'"

The Eighth Circuit then easily found that the content based statute did not survive strict scrutiny: "Even if the government interest in protecting the free exercise of religion were viewed as compelling, however, the content based prohibitions the Act places on profane or rude speech are not necessary to protect that freedom."  There were content neutral alternatives to protect houses of worship from disruption, such as noise regulations and there was nothing in the record showing that any worship services have been disrupted in Missouri.

Thus, the facial challenge to the statute, brought by SNAP - - - a non profit organization which advocates for victims of sexual abuse by clergy and members who "regularly communicate their messages outside of a Catholic friary in St. Louis where a priest accused of child molestation resides" - - - was successful. 

It does seem as if Missouri could amend the statute to pass constitutional scrutiny by excising the content-based language and leaving the noise related language.

[image via]

March 9, 2015 in First Amendment, Opinion Analysis, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Saturday, February 28, 2015

Second Circuit Allows Police Officer's First Amendment Claim

In its opinion in Matthews v. City of New York, the Second Circuit upheld the First Amendment rights of a police officer in a unanimous panel opinion, authored by Judge Walker.

The court reversed the district judge's grant of summary judgment in favor of the City that had concluded that the police officer, Craig Matthews spoke as a public employee, not as a citizen, and that his speech was thus not protected by the First Amendment. 

At issue is the application of the closely divided Garcetti v. Ceballos  and its "clarification" in the United States Supreme Court's 2014 decision in Lane v. Franks ,regarding the "scope of employment" exclusion for First Amendment protection. Matthews alleged that he was retaliated against for speaking about an alleged quota system mandating the number of arrests, summons, and stop‐and‐frisks that police officers must conduct.  These are the same policies that have been so controversial in NYC and have been considered by the Second Circuit.

NYPD_Special_PatrolmanThe court detailed Matthews' speech:

In February 2009, Matthews, believing that the quota system was damaging to the NYPD’s core mission, reported its existence to then‐Captain Timothy Bugge, the Precinct’s commanding officer at that time. In March and April of 2009, Matthews again reported the quota system’s existence to Captain Bugge, and, in May 2009, Matthews reported the same to an unnamed Precinct executive officer.

In January 2011, Matthews met with then‐Captain Jon Bloch, the Precinct’s new commanding officer, and two other officers in Captain Bloch’s office. Matthews told them about the quota system and stated that it was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” and that it “was having an adverse effect on the precinct’s relationship with the community.”

The Second Circuit panel held that "Matthews’s speech to the Precinct’s leadership in this case was not what he was “employed to do,” unlike the prosecutor’s speech in Garcetti."  Importantly, "Matthews’s speech addressed a precinct‐wide policy.  Such policy‐oriented speech was neither part of his job description nor part of the practical reality of his everyday work."

The court also considered whether the speech had a "civilian analogue," discussing its previous opinion in Jackler v. Byrne, a 2011 opinion in which the panel had also found the speech of a police officer protected by the First Amendment.  In part, the panel's conclusion rested on the fact that "Matthews reported his concerns about the arrest quota system to the same officers who regularly heard civilian complaints about Precinct policing issues."  

In holding that Matthews' speech is protected by the First Amendment, the opinion may be further indication that the grip of Garcetti on employee speech is loosening.  It is not only Lane v. Franks, in which the United States Supreme Court unanimously reversed the Eleventh Circuit's summary opinion and the Second Circuit's previous opinion in Jackler, but cases such as the Third Circuit's Flora v. Luzerne County decided last month.  This is not to say that Garcetti does not remain a formidable obstacle to any First Amendment claim by a public employee, but only that the obstacle is becoming less insurmountable. 

February 28, 2015 in Courts and Judging, Criminal Procedure, First Amendment, Opinion Analysis, Speech, Supreme Court (US), Theory | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 24, 2015

Second Circuit Reverses Itself on Qualified Immunity in Brooklyn Bridge Protest

A panel of the Second Circuit issued its amended opinion in Garcia v. Does now holding that the New York City police officers do have qualified immunity in the First Amendment suit arising from plaintiffs' arrests for participating in a demonstration in support of the Occupy Wall Street movement.

Recall that in December, the full Second Circuit granted review of the case.  In today's opinion, the court noted that it had withdrawn the panel opinion, was granting the petition for rehearing, and now reversing the district judge and remanding the case with instructions to dismiss the complaint.

Thus, the panel now finds that qualified immunity can be - - - and is here - - - established at the pleading stage, citing  Wood v. Moss (2014), noting that  "qualified immunity protects officials not merely from liability but from litigation, that the issue should be resolved when possible on a motion to dismiss, before the commencement of discovery, to avoid subjecting public officials to time consuming and expensive discovery procedures."  This echoes Judge Livingston's dissent in the original panel opinion.

The underlying First Amendment issue was whether defendant police officers "implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law" and then arrested them without "fair warning."  Today's panel opinion now explains:

On the face of the Complaint, the officers were confronted with ambiguities of fact and law. As a matter of fact, the most that is plausibly alleged by the Complaint and the supporting materials is that the police, having already permitted some minor traffic violations along the marchers’ route, and after first attempting to block the protesters from obstructing the vehicular roadway, retreated before the demonstrators in a way that some of the demonstrators may have interpreted as affirmatively permitting their advance. Whether or not such an interpretation was reasonable on their part, it cannot be said that the police’s behavior was anything more than – at best for plaintiffs – ambiguous, or that a reasonable officer would necessarily have understood that the demonstrators would reasonably interpret the retreat as permission to use the roadway.

This "all doubts resolved in favor of the defendants" stance on a motion to dismiss for qualified immunity illustrates how very high the bar has become for protestors raising a First Amendment claim.

[image of Brooklyn Bridge via]

February 24, 2015 in First Amendment, Fourteenth Amendment, Speech | Permalink | Comments (0) | TrackBack (0)